IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.4245 of 2010 (O&M) Date of decision: 5th August, 2011 Ramesh Kumar … Appellant Versus Hans Raj … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. H.R. Nohria, Advocate for the appellant. Mr. Raman Mohinder Sharma, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present regular second appeal has been filed by plaintiff, to the suit, instituted for specific performance of the agreement to sell dated 2nd December, 2006 directing the respondent-defendant to execute and register the sale deed in favour of the plaintiff in respect of the land measuring 0.8 Biswas being 8/43rd share of land measuring 2 Bighas 3 Biswas, the detail and description whereof has been given in the head-note of the plaint. The trial Court decreed the suit and aggrieved against the same the respondent-defendant had filed an appeal. The lower appellate Court accepted the appeal and reversed the findings recorded by the trial Court. Hence, the present regular second appeal. In the suit, it was pleaded by the appellant-plaintiff that respondent-defendant was co-owner to the extent of 1/4th share of land measuring 2 Bighas 3 Biswas and the same was in his exclusive Regular Second Appeal No.4245 of 2010 (O&M) possession. It was further pleaded that the respondent-defendant entered into an agreement to sell with the appellant-plaintiff for sale of land measuring 0.8 Biswas on 2nd December, 2006 @ Rs.49,500/- per Biswa. At that time, Rs.50,000/- were paid to the respondent-defendant as earnest money by the plaintiff in the presence of witnesses. The parties also agreed to execute the sale deed on or before 30th June, 2007. The agreement to sell contained a recital that in case the seller fails to get the sale deed registered on or before the date fixed, i.e. 30th June, 2007, the purchaser will have the right to recover double the amount of earnest money, i.e. Rs.50,000/- paid as earnest money and Rs.50,000/- as damages and he will also have the right to get the sale deed registered through the process of law. On failure of the purchaser to come forward to execute the sale deed, the seller was held entitled to forfeit the earnest money. What is required to be noticed is para No.4 of the plaint, which was produced before this Court by Mr.Raman Mohinder Sharma, Advocate appearing on behalf of the respondent-defendant. Para No.4 of the plaint reads as under: “4. That as per terms and conditions of the agreement to sell the plaintiff remained present before the office of Sub-Registrar Dhuri on 30.06.2007 along with remaining sale consideration and registration expenses, but the deft. did not turn up on that date.” Upon issuance of the notice of the suit, respondent- defendant caused appearance and filed his reply. A preliminary objection was raised that the averment made in para No.4 of the plaint that the plaintiff remained present in the office of Sub-Registrar, Dhuri on 2 Regular Second Appeal No.4245 of 2010 (O&M) 30th June, 2007 is wrong as on that date the office of Sub-Registrar was closed due to holiday (Saturday). It was further stated that even on 1st July, 2007 being Sunday it was a holiday and on the very next day i.e., 2nd July, 2007 the respondent-defendant remained present in the office of Sub-Registrar, Dhuri along with all the documents, but the appellant- plaintiff did not turn up to perform his part of the agreement. The trial Court, after conclusion of the pleadings, formulated following issues: “1. Whether the plaintiff is/was ready and willing to perform his part of contract? OPP 2. Whether the plaintiff is entitled for the relief of specific performance of the said agreement? OPP 3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP 4. Whether no cause of action is accrued in favour of the plaintiff? OPD 5. Relief.” The appellant-plaintiff Ramesh Kumar appeared in the witness box as PW-1 and examined Mahavir Singh as PW-2. Whereas the respondent-defendant himself stepped into the witness box as DW-3 and examined two other witnesses, viz. Satnam Singh as DW-1 and Jeewan Lal as DW-2. The trial Court held that execution of the agreement to sell Ex.P1 is proved on the record. It further held that the suit was filed at the earliest, therefore, it could be assumed that the plaintiff was ready and willing to perform his part of the contract as he was ready with the balance sale consideration. 3 Regular Second Appeal No.4245 of 2010 (O&M) Mr.H.R. Nohria, Advocate appearing on behalf of the appellant-plaintiff, has stated that the suit was filed within 25 days from the date of expiry of the period stipulated for execution of the sale deed. As stated earlier, the respondent-defendant had filed an appeal. The lower appellate Court had reversed the findings given by the trial Court regarding readiness and willingness of the appellant- plaintiff to perform his part of the contract. The lower appellate Court also upheld execution of the agreement to sell Ex.P1 and further held that the plaintiff has failed to perform his part of the contract. The following two circumstances weighed in the mind of the lower appellate Court: (1) That in para No.4 of the plaint a wrong averment was made that on 30th June, 2007 the plaintiff remained present in the office of Sub-Registrar, Dhuri, whereas it was a holiday being Saturday; and (2) The lower appellate Court took into consideration the fact that the defendant-seller has proved on record that he was present in the office of Sub-Registrar, Dhuri on 2nd July, 2007. The Court relied upon the testimony of Jeewan Lal, Municipal Commissioner DW-2, who is also a signatory to the affidavit got prepared by the respondent-defendant. The view formulated by the lower appellate Court is the one which is possible on the facts and circumstances of this case. In regular second appeal, this Court will be hesitant to substitute the view formulated by the lower appellate Court with the one of its own. Mr.Nohria has failed to convince me that the 4 Regular Second Appeal No.4245 of 2010 (O&M) lower appellate Court has misread any part of the evidence or it ignored some material evidence. Counsel for the appellant has only submitted that the inferences drawn by the lower appellate Court are erroneous. To upset the findings returned by the lower appellate Court, this Court will have to tread on the path of re-appreciation and re-appraisal of the evidence, which as per the settled law is not permissible in a regular second appeal. No question of law, much less a substantial one, has been raised for consideration of this Court. Hence, there is no merit in the present appeal and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE August 5, 2011 rps 5