1 R.S.A. No. 3215 of 2007 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- Civil Misc. No. 8994-C of 2007 (O&M) R. S. A. No. 3215 of 2007 Date of decision: 24.4.2009 Bhag Singh….. Appellant Versus Ashish Kumar…Respondent --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. Gurcharan Dass, Advocate for the appellant. --- AJAY KUMAR MITTAL, J. This appeal, at the instance of the defendant, Bhag Singh, is directed against the judgment and decree dated 22.2.2007 of the District Judge, Ludhiana whereby the first appeal preferred by the plaintiff-respondent, Ashish Kumar, challenging the trial court’s judgment and decree dated 9.11.2005, dismissing his suit for specific performance, however, allowing him the 2 R.S.A. No. 3215 of 2007 alternative relief for recovery of earnest money, was allowed and the plaintiff’s suit for specific performance was decreed. As per the facts pleaded by the plaintiff, the defendant entered into an agreement on 31.7.1997 to sell the suit land measuring 14 Kanals 6 Marlas at the rate of Rs. 2,70,000/- per acre; an amount of rupees one lac was paid by the plaintiff as earnest money in the presence of the marginal witnesses; the sale deed was agreed to be executed on or before 30.11.1997; the date for execution of the sale deed was, however, extended till 15.6.1998 on payment of another sum of Rs. 1,00,000/- by the plaintiff and an insertion to that effect was incorporated on the back of the agreement to sell. The plaintiff pleaded that he came present in the office of the Sub Registrar on 15.6.1998 but the defendant failed to turn up and he did not give any response to the request made by the plaintiff for the purpose of execution and registration of the sale deed in terms of the agreement to sell, which necessitated the plaintiff to file the civil suit for possession of the suit land by way of specific performance of the agreement in question and in alternative, a prayer for refund of the earnest money paid was also made. The defendant by means of written statement contested the pleas of the plaintiff. The defendant contrived lack of knowledge about having ever any intimacy with the plaintiff. He specifically denied having entered into the agreement 3 R.S.A. No. 3215 of 2007 advocated by the plaintiff and it was pleaded that the same was a forged document. Giving further background, the defendant asserted that the father of the plaintiff was a cloth merchant and he (defendant) had dealings with him. The defendant borrowed a sum of Rs. 50,000/- from the plaintiff at his shop on 31.7.1997. The plaintiff, on the pretext of executing certain documents in respect of the above loan, obtained thumb impressions of the defendant on blank papers as well as in the register of Amarjit Singh, Deed Writer, who had been called in the shop. The other facts pleaded by the plaintiff that the date for execution of the sale deed was extended and another sum of rupees one lac was paid by the plaintiff to him, were also denied. On appraisal of the evidence, the trial court returned a finding that since on the day of execution of the alleged agreement to sell, dated 31.7.1997, the suit land was mortgaged, the relief of specific performance could not be granted to the plaintiff and, therefore, as a matter of fact, the suit qua that relief had been rendered as infructuous. The trial court further observed that though there was no specific issue framed with regard to alternate relief, but since it stood proved on record that a sum of rupees two lacs had been paid by the plaintiff to the defendant towards the price of the land agreed to be sold by virtue of the agreement to sell, under reference, the plaintiff was entitled to recover the said amount from the defendant. Accordingly, the relief for specific 4 R.S.A. No. 3215 of 2007 performance of the agreement in question was declined but allowing the alternate relief, a decree for recovery of rupees two lacs along with interest at the rate of 6% per annum from the date of payment till realization, was passed by the trial court. Aggrieved by the trial court’s verdict, the plaintiff preferred appeal. The District Judge, Ludhiana allowed the appeal and while modifying the findings of the trial court, passed a decree for specific performance in favour of the plaintiff. I have heard learned counsel for the appellant and have gone through the record with his assistance. Learned counsel appearing for the appellant submitted that on the basis of the evidence on record, the findings as recorded by the first appellate court could not have been recorded and the same were wrong and illegal. The counsel further submitted that this Court should record an independent finding after re-appreciating the evidence. The contention cannot be accepted for the reason that re-appreciation of the evidence is not permissible in view of the impediment contained in the provisions of Section 100 of the Code of Civil Procedure. In any case, the findings recorded by the courts below are based on correct appreciation of the oral as well as the documentary evidence and also on the sound reasoning. 5 R.S.A. No. 3215 of 2007 The relevant observations of the first appellate court made so as to reach the aforesaid conclusion deserve to be noticed here, which are: “On evaluating the evidence of these witnesses, it transpires that Ex. P1 was executed by the defendant in favour of the plaintiff. As is borne out from their evidence a sum of rupees One lakh was received by the defendant from the plaintiff on 31.7.1997 at the time of execution of Ex. P1 and as per Ex. P2 the time regarding execution and registration of the sale deed was extended to 15.6.1998 and vide Ex. P3, receipt, a sum of rupees one lakh more was received by the defendant from the plaintiff. This receipt tends to show that the revenue stamp affixed on it do bear thumb impressions as well as signatures of the defendant. So, is the position being reflected by Ex. P1 as well as Ex. P2. To put it differently, all these material documents bear the thumb impressions as well as signatures of the defendant. By leading positive evidence the plaintiff has discharged his onus. So, onus shifted on the defendant to prove that the above mentioned document do not bear his signatures or thumb impressions, which he has not discharged by examining some Expert. As per the contents of Ex.P5, certified copy of telegram, 6 R.S.A. No. 3215 of 2007 the plaintiff always remained ready and willing to perform his part of the contract.” No illegality or perversity could be shown by the counsel in the said findings so as to persuade this Court to interfere therewith in second appeal. No substantial question of law arises nor has any been pointed out by the counsel, for consideration of this Court. In view of the above, there is no merit in the appeal and the same is dismissed in limine. There was a delay of one day in filing the present appeal. The appellant has moved Civil Misc. No. 8994-C of 2007 for condonation of the same. Since the main appeal itself has been heard and dismissed on merits, it is considered not necessary to pass any order on the said application. The Civil Misc. application would stand disposed of accordingly. (AJAY KUMAR MITTAL) April 24, 2009 JUDGE *RKMALIK*