Regular Second Appeal No. 1931 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1931 of 2009 Date of Order: 14.07.2009 Jagjeet Singh ....Appellant Versus Ravinder Kumar and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. P.K.Ganga,Advocate for the appellant. RAJIVE BHALLA, J (Oral). The appellant challenges the judgments and decrees dated 27.10.2007 and 30.01.2009, passed by the Civil Judge (Junior Division), Dabwali and the Additional District Judge, Sirsa, decreeing the suit filed by respondent no.1 for recovery of Rs.4,76,000/- and dismissing the appeal filed by the appellant. The plaintiff-respondent no.1 filed a suit for specific performance of an agreement to sell, dated 13.11.2000 alleging that the defendant- appellant promised to sell land measuring 16 kanals and 19 marlas for a total consideration of Rs.2,60,000/- and for the said purpose received Rs.2,38,000/- as earnest money. The sale deed was to be executed on 13.05.2001. It was also agreed that in case of default by the appellant he would pay Rs.4,76,000/-. In part performance of the agreement, possession was delivered but on 23.04.2001, the appellant and Kulwant Singh forcibly dispossessed him as Kulwant Singh claimed that he had purchased the suit land from the appellant, vide registered sale deed dated 14.02.2001. It was prayed that a decree be passed for recovery of Regular Second Appeal No. 1931 of 2009 -2- Rs.4,76,000/-. The appellant filed a written statement denying the execution of the agreement to sell by asserting that his signatures had been obtained on blank papers when he sold his produce at the shop of respondent No.1. He, however, admitted that the sale deed was executed in favour of Kulwant Singh. Respondent no.2 filed a written statement asserting that he has purchased the property in good faith, for consideration and without notice of the prior agreement to sell. On the basis of the pleadings, the trial court framed the following issues:- “1. Whether the plaintiff is entitled for specific performance of an agreement for sale dated 13.11.2K executed by the defendant no.1 and was/is willing to perform his part of contract as alleged?OPP 2. Whether the suit of the plaintiff is not maintainable in the present form and plaintiff has no cause of action and no locus standi to file the present suit?OPD 3. Whether the plaintiff has not come in the Court with clean hand and he has concealed material facts from the Court?OPD 4. Whether the suit of the plaintiff is bad for want of proper Court fees?OPD 5. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial Court held that though the agreement to sell stands proved, the prayer for specific performance cannot be decreed as Kulwant Singh is a bonafide purchaser, for consideration without notice of the prior agreement to sell. The trial Court, however, decreed the suit for Regular Second Appeal No. 1931 of 2009 -3- recovery of Rs.4,76,000/- along with interest at the rate of 6% per annum from the date of filing of the suit till its realization. The appellant and respondent no.1 filed separate appeals, impugning the correctness of the judgment and decree passed by the trial Court. Both appeals were dismissed by the Additional District Judge, Sirsa, thus affirming the findings recorded by the trial Court. Counsel for the appellant submits that the appellant is an agriculturist who sells his produce at the shop of respondent no.1. The agreement to sell even if accepted, is at best a document to secure to agricultural loans raised by a farmer from a commission agent and should, therefore, have been rejected. It is argued that in Permanand v. Bajrang, 2001(4) RCR(Civil), 439 the Hon'ble Supreme Court held that such agreements are executed as security for agricultural loans and should, therefore not be accepted. It is further argued that respondent no.1 has failed to prove the execution of the agreement to sell or the payment of Rs.2,38,000/- as earnest money. The agreement to sell was executed and Rs.2,38,000/- paid as earnest money by Devinder Kumar on behalf of respondent no.1. As Devinder Kumar was not examined, the courts below should have drawn an adverse inference against respondent no.1. It is further argued that the courts below have committed an error in relying upon the report, Ex.P2, submitted by the Forensic Science Laboratory to hold that the agreement to sell bears the appellant's signature. The objection raised by the appellant, as to its admissibility was not decided and, therefore, the report Ex.P2 should have been rejected. It is submitted that the following substantial questions of law arise for consider:- “(i) Whether the impugned judgment and decree of courts below are result of misreading and mis-appreciation of law and evidence? (ii) Whether the lower appellate court being final court of Regular Second Appeal No. 1931 of 2009 -4- fact ought to have dealt with each and every aspect/pleadings of the appellant while affirming the findings of trial court, which has not been done in this case? (iii) Whether the judgment and decree of courts below are erroneous, perverse and not sustainable in the eyes of law? (iv) Whether the respondent has failed to prove the due execution of the alleged agreement to sell Ex.P1 and the payment of alleged earnest money? (v) Whether the plaintiff has to stand on his own legs and the plaintiff has failed to prove his case? (vi) Whether the courts below are justified in decreeing the suit of the respondent for recovery of double of amount of alleged money?” I have heard counsel for the appellant, perused the impugned judgments and the substantial questions of law framed by counsel for the appellant. Both the trial court and the first appellate court have recorded concurrent findings of fact upholding the execution of the agreement to sell, and the receipt of the earnest money. While holding that the agreement cannot be specifically performed as the subsequent vendee is a bonafide purchaser for consideration, without notice of the prior agreement to sell, , they have decreed the prayer for recovery of liquidated damages. The agreement stands proved by the deposition of the scribe PW8 Virender Kumar who has deposed that the agreement was scribed on the instructions of the appellant. The attesting witness Atma Ram PW9 has deposed that the agreement was scribed by Virender Kumar deed writer at the asking of the appellant and he affixed his signatures as a Regular Second Appeal No. 1931 of 2009 -5- witness. The scribe and the attesting witness also deposed that the agreement was read over to the appellant. The appellant's stand that his signatures were obtained on blank papers establishes the correctness of his signatures which have also been proved by the report submitted by the Forensic Science Laboratory. The appellant has failed to prove, his defence that the agreement to sell was prepared on blank papers signed by the appellant while selling his produce at the shop of respondent no.1 or that it was executed as security for an agricultural loan. As a result, the judgment in Permanand v. Bajrang (supra) would have no applicability to the present controversy. The questions of law as framed, in my considered opinion are neither questions of law nor substantial questions of law. Counsel for the appellant has failed to refer to any evidence the courts below have misread or any law they have wrongly applied. The first appellate court has dealt with all the issues. The agreement and the payment of earnest money as referred to hereinbefore stands proved. The courts below, therefore, rightly decreed the suit for damages. The questions are in the nature of issues in dispute rather than substantial questions of law. In view of what has been stated hereinabove, as no question of law much less a substantial question of law arises for consideration, the appeal is dismissed. July 14, 2009 (RAJIVE BHALLA) nt JUDGE