RSA No.3581 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3581 of 2010 (O & M) Date of Decision: 08.09.2010. Brij Lal .……Appellant Versus Kewal Krishan and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Sandeep Bhardwaj, Advocate for the appellant. L. N. MITTAL, J (ORAL) CM No.10519-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 14 days in filing the appeal is condoned. Main Appeal. Plaintiff-Brij Lal, having lost in both the Courts below has come in second appeal. The plaintiff-appellant alleged that he agreed to sell the suit house to defendant-respondent No.1 for Rs.70000/- as cost of the land and received Rs.20000/- as earnest money and executed agreement dated 17.07.2002. The plaintiff further received Rs.30000/- from defendant No.1 through separate receipt as per terms of the agreement. Balance amount of Rs.20000/- as well as the amount of Malba was to be paid by defendant No.1 to the plaintiff on or before 30.09.2002 and at the same time, possession of the suit RSA No.3581 of 2010 (O & M) -2- house was to be delivered to defendant No.1. However, defendant No.1 failed to pay the balance amount of Rs.20000/- and the price of Malba. On the other hand, defendant No.1 with the help of defendant nos.2 and 3 took forcible possession of the suit house. Accordingly, plaintiff sought mandatory injunction directing the defendants to vacate the suit house and to handover its possession to the plaintiff. Defendant Nos.1 and 3 contested the suit. Defendant No.1 admitted the agreement. Defendant No.1 alleged that entire sale consideration as well as price of Malba stands paid by him to the plaintiff, who handed over possession of the suit property to defendant No.1. Plaint allegations were controverted. Various other pleas were also raised. Defendant No.3 also denied the plaint allegations and raised various preliminary objections. Defendant No.2 was proceeded ex parte. Learned Civil Judge (Junior Division), Abohar vide judgment and decree dated 02.09.2009 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Ferozepur vide judgment and decree dated 19.04.2010. Feeling aggrieved, instant second appeal has been preferred by the plaintiff. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that defendant No.1 has not paid the balance sale price of RSA No.3581 of 2010 (O & M) -3- Rs.20000/- nor paid the price of Malba and finding of the Courts below to the contrary is perverse and unwarranted. I have carefully considered the aforesaid contention, but the same cannot be accepted. The plaintiff himself has not stepped into the witness box. It is correct that plaintiff has examined his son and attorney as his witness. However, it was only the plaintiff, who could himself state whether the balance amount of Rs.20000/- and the price of Malba was paid to him by defendant No.1 on 01.10.2002 or not, as alleged by defendant No.1. Plaintiff's son and attorney could have no personal knowledge about the said fact. Consequently, plaintiff himself was required to appear in the witness box to deny the receipt of the said amount, but the plaintiff has not appeared as his own witness and, therefore, adverse inference arises against him. In addition to the aforesaid, even if the version of the plaintiff-appellant is taken at face value, the plaintiff cannot succeed in the suit. The plaintiff stood dispossessed by the defendants. The plaintiff's case is that defendants forcibly took possession of the suit house from the plaintiff. If it were so, the plaintiff had to seek relief of possession of the suit house and the plaintiff cannot seek relief of mandatory injunction. Suit for mandatory injunction is not maintainable in the present form. Moreover, the plaintiff has also not sought relief of specific performance of the agreement. Thus examined from any angle, relief asked for by the plaintiff-appellant cannot be granted. Faced with the aforesaid situation, learned counsel for the appellant contended that plaintiff-appellant be granted liberty to file fresh suit to seek appropriate relief. The contention RSA No.3581 of 2010 (O & M) -4- cannot be accepted. There is no ground for permitting the plaintiff- appellant to file fresh suit to seek appropriate relief. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. 08.09.2010 ( L. N. MITTAL ) A. Kaundal JUDGE