IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 274 of 2007 Date of decision: 07.05.2008 Prem Singh ... Appellant Versus Smt. Reshma Thakur … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Baldev Singh, Advocate. For the respondent: Mr. J.L. Bhardwaj, Advocate. V.K. Ahuja, J. : This is a Regular Second Appeal filed by the appellant under Section 100 CPC against the judgment and decree of the Court of learned District judge, Kullu, dated 18.1.2006, vide which he affirmed the judgment and decree of the Court of learned Civil Judge(Senior Division), Kullu, dated 18.4.2005, decreeing the suit of the respondent for specific performance. Briefly stated the facts of the case are that the respondent as plaintiff filed a suit for specific performance of contract. The plaintiff alleged that the defendant had agreed to sell the land measuring 1 Bigha in her favour for a consideration of Rs.4.50 Lacs and an agreement was executed on 12.4.2002. The defendant received a sum of Rs.4,00,000/- and balance amount of Rs.50,000/- was to be paid at the time of 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 registration of the Sale Deed by 31.12.2002. The defendant did not execute the sale deed and agreed to execute the sale deed by 19.12.2003 and accordingly, made an endorsement on the agreement. The plaintiff waited for the defendant on the date fixed but the defendant did not turn up and she filed the suit after issuance of notice upon the defendant. The defendant in his written statement denied his own title to the suit land and also denied to have ever executed agreement to sell the land to the plaintiff. He never received Rs.4,00,000/- as sale consideration from the plaintiff. He pleaded that the plaintiff is a money- lender and he obtained a loan of Rs.1,00,000/- on interest from the plaintiff and the amount was to be repaid within one year. But the plaintiff obtained the document wrongly, though it was executed as a security and a pronote and the agreement for sale in question was result of fraud and misrepresentation. On the pleadings of the parties, the issues were settled by the learned trial Court and after trial, the learned trial Court concluded that the plaintiff had proved that the defendant executed the agreement in question, received part of the consideration and it did not accept the plea of the defendant that he had taken a loan from the plaintiff or that the document was executed as a security and pronote and accordingly, decreed the suit of the plaintiff for specific performance of contract. On appeal, those findings were affirmed. I have heard the learned counsel for the parties and have also gone through the record. During the course of arguments, the learned counsel for the appellant had submitted that the plaintiff had failed to prove the execution 3 of the agreement in question or the payment of the earnest money and as the signatures of the defendant were obtained fraudulently, the suit filed by the plaintiff was liable to be dismissed. During the course of arguments, the substantial question of law pointed by the learned counsel for the appellant was that whether the respondent has proved on record the agreement to sell which was result of fraud committed upon the defendant whose signatures were obtained with pretext that loan agreement was to be executed. It was also submitted that the other substantial question of law which arises is as to whether the plaintiff has proved that she was ready and willing to perform her part of the contract and it was submitted that there is misreading of oral and documentary evidence on record. On a perusal of the record of the case, it is clear that the plaintiff had substantiated her allegations made in the plaint, by her statement as well as the statement of scribe PW-2 Subhash Chand and one of the marginal witnesses PW-3 and relative of the defendant, had also been examined who clearly proved the execution of the agreement and the payment of earnest money by the plaintiff to the defendant. The learned trial Court had also concluded that the defendant admitted having made endorsement on document Ext. PW2/A and extended the period of the execution of the sale deed and the defendant had also admitted his signatures and he had failed to explain that it was loan taken by him. Both the Courts below have discussed the oral as well as documentary evidence in coming to the conclusion that the plaintiff had proved the agreement in question and as such, was entitled to the relief claimed by her. 4 During the course of arguments, it was not pointed out that which oral or documentary evidence was not considered by the Courts below or was misappreciated by the Courts below. Once the appellant has failed to prove that any document was not considered by the Courts below or the oral evidence was not properly discussed, no substantial question of law arises for reappraisal of the evidence, once the finding is definite recorded by the Courts below after considering the oral and documentary evidence on record. In view of the above, I accordingly hold that there is no merit in the appeal and the same is dismissed. Parties are left to bear their own costs. The appellant shall execute the sale deed within a period of one month as granted by the learned trial Court from today. A copy of the judgment alongwith the record be sent to the Court concerned forthwith. ( V.K. Ahuja ), May 07, 2008 Judge (BSS)