R. S. A. No. 2633 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2633 of 2006 Date of Decision : July 14, 2010 Joginder Singh .... Appellant Vs. Kashmir Chand .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. S. C. Khunger, Advocate for the appellant. Mr. G. L. Bajaj, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : This is second appeal by defendant Joginder Singh having remained unsuccessful in both the courts below. Respondent Kashmir Chand filed suit against the appellant for specific performance of the agreement to sell 02.05.1998 alleging that the defendant, vide said agreement, agreed to sell the suit land measuring 23 kanals 04 marlas to the plaintiff for consideration of Rs.2,40,000/- and received Rs.2,00,000/- as earnest money. The plaintiff always remained ready and willing to perform his part of the contract, but the defendant R. S. A. No. 2633 of 2006 2 committed breach thereof. The defendant inter alia pleaded that the impugned agreement is result of fraud and misrepresentation and breach of faith and confidence reposed by the defendant in the plaintiff. The defendant had to pay a sum of Rs.35,000/- to the plaintiff, which the defendant got paid from commission agent. The plaintiff told the defendant that the plaintiff needed some document for some purpose in his favour and accordingly, the defendant agreed to sign the document in good faith, but the plaintiff with mala fide intention, procured impugned agreement dated 02.05.1998, which is false, forged and fabricated document. The defendant denied the plaint allegations. It was denied that he agreed to sell the suit land and received Rs.2,00,000/- as earnest money. Learned Additional Civil Judge (Senior Division), Fazilka, vide judgment and decree dated 14.08.2004, decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Ferozepur, vide judgment and decree dated 10.02.2006. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that the defendant has examined Satnam Singh son of Harpal Singh as DW-1, who has stated that he had signed the impugned agreement at the asking of R. S. A. No. 2633 of 2006 3 the plaintiff. He is one of the marginal witnesses of the agreement. It was thus contended that the said attesting witness of the agreement has not supported the plaintiff's case and has denied execution of the agreement by the defendant. It was also contended that other attesting witness of the agreement namely Charanjit Singh (PW-2) has been examined by the plaintiff and in the witness-box, he supported the plaintiff's case, but in criminal case, the said witness denied the execution of the impugned agreement by the defendant and also denied payment of any earnest money by the plaintiff to the defendant. Since said statement of Charanjit Singh in criminal case was recorded after his appearance as witness in the civil suit, the defendant moved application under Order 41 Rule 27 of the Code of Civil Procedure for additional evidence in the lower appellate court for producing the said statement of Charanjit Singh, but the said application has been dismissed by the lower appellate court vide order dated 10.02.2006 and the said order is untenable because the said statement being relevant should have been admitted in evidence. I have carefully considered the aforesaid contentions, but find no merit therein. These contentions relate to appreciation of evidence, but in second appeal, evidence is not to be appreciated again as lower appellate court is the final court of fact. Even otherwise, the contentions cannot be accepted. Satnam Singh (DW-1) admitted that the impugned agreement bears his signatures as attesting witness. Consequently, his statement that R. S. A. No. 2633 of 2006 4 the agreement was not executed by the defendant has to be taken with a pinch of salt. On the other hand, plaintiff examined Charanjit Singh (PW-2) – another attesting witness of the agreement and he supported the plaintiff's case. Besides it, the plaintiff himself stepped into the witness-box and stated according to his version. The plaintiff has also examined scribe of the agreement, who has also supported the plaintiff's case. Thus, the plaintiff led cogent and sufficient evidence to prove due execution of the agreement by the defendant and payment of Rs.2,00,000/- to him as earnest money. In addition to the aforesaid, it is significant to notice that defendant's own testimony is a bundle of lies and is completely unworthy of credence. The defendant, in written statement, pleaded that he had signed the document at the asking of the plaintiff, who converted the document into the impugned agreement. The defendant, by this pleading, admitted his signatures on the impugned agreement. However, in the witness-box, the defendant flatly denied his signatures on the agreement and therefore, the plaintiff had to examine handwriting expert to prove that the agreement bears signatures of the defendant. The matter does not rest here. The defendant, in the witness-box, even denied his signatures on his written statement as well as on Vakalatnama in favour of his counsel. It need not be mentioned as to how the testimony of such a witness should be evaluated. The defendant, it appears, entered into the witness-box with R. S. A. No. 2633 of 2006 5 determination not to speak the truth. As regards statement made by Charanjit Singh in criminal case, the same is also of no help to the defendant-appellant. Even in the criminal case, in the examination-in-chief, Charanjit Singh supported the plaintiff's case and deposed that defendant had executed the impugned agreement and had received Rs.2,00,000/- as earnest money from the plaintiff. His cross- examination was deferred. In cross-examination recorded subsequently, the said witness was won over by the defendant, who was one of the accused in criminal case. Then, Charanjit Singh stated that he had earlier made false statement regarding execution of impugned agreement by the defendant. It is thus apparent that the said statement made by Charanjit Singh in cross- examination in criminal case is not worthy of credence at all. It was induced statement made at the instance of the defendant. Learned counsel for the appellant also contended that the suit land had been mortgaged with the Bank, but the factum of mortgage was not mentioned in the impugned agreement and it depicts that the agreement was not genuine. The contention cannot be accepted because it is the case of the plaintiff that the defendant had falsely represented to the plaintiff that the mortgage money stood paid and report regarding the same had also been entered in roznamcha of Patwari. It appears that the defendant, by making said false representation, induced the plaintiff to purchase the suit land. Consequently, the aforesaid contention rather goes against the appellant and R. S. A. No. 2633 of 2006 6 not against the plaintiff. Learned counsel for the appellant also pointed out that in the agreement, it was recited that possession of the suit land stood delivered to the plaintiff at the time of agreement, but the plaintiff, in the witness-box, admitted that defendant is still cultivating the suit land. However, merely on the basis of this contention, the plaintiff cannot be non-suited. Learned lower appellate court has fully dealt with this contention and rightly repelled the same. The defendant recited in the agreement that he had delivered the possession of the suit land to the plaintiff, but apparently, after execution of the agreement, the defendant did not deliver the actual physical possession of the suit land to the plaintiff at the spot. Merely on this ground, the plaintiff cannot be non-suited. For the reasons recorded herein above, I find that there is no infirmity, much less illegality or perversity in the judgments of the courts below. There is concurrent finding by both the courts below against the defendant-appellant. The said finding does not require interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. I find that the appeal lacks any merit. The appeal is accordingly dismissed. July 14, 2010 ( L. N. MITTAL ) monika JUDGE