IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.3720 of 2010 (O&M) Date of Decision:16.11.2010 Mahinder Singh .....Appellant Vs. Bhag Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. S.S. Dinarpur, Advocate for the appellant. Mr. Ajit Sihag, Advocate for the respondent. **** RAKESH KUMAR GARG, J. This is defendant's second appeal challenging the judgments and decrees of the Courts below wherein suit of the plaintiff- respondent for possession by way of specific performance of agreement to sell was decreed and the appellant was restrained from alienating the suit property in any manner. As per the facts narrated in the suit, the appellant entered into an agreement to sell with the respondent on 30.6.2003 in the presence of the witnesses for sale of the suit property for a total consideration of Rs.1,50,000/-, the said agreement was got registered before the Sub- Registrar, Hisar and an earnest money of Rs.1,15,000/- out of the sale consideration was received by him before the Sub-Registrar, Hisar and in the presence of the witnesses. As per agreement, the last date of registering the sale deed was fixed as 30.6.2004. However, the defendant failed to turn up on the stipulated date. Hence, the present suit. Upon notice, the suit was R.S.A. No.3720 of 2010 (O&M) -2- contested by the appellant. Various preliminary objections were raised in the written statement. On merits, it was contended that the appellant never agreed to sell the suit land to the plaintiff/ respondent nor did he ever received any earnest money/ sale consideration. The alleged agreement was totally incorrect and baseless and was based upon fraud and misrepresentation and without any consideration. It was further pleaded that the appellant was suffering from mental illness for some time and he was not in a capacity to decide or sale any land on the relevant date. Taking undue advantage of the mental infirmity of the defendant, the plaintiff might have been able to get alleged agreement fabricated in connivance with the witnesses. It was further stated that no money was ever paid by the plaintiff to the defendant. Dismissal of the suit was prayed. Plaintiff filed replication to the written statement controverting the contents of the written statement and reiterating the contents of the plaint. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the defendant entered into agreement to sell dated 30.06.2003 with the plaintiff in respect of the suit land mentioned in the head note of the plaint? OPP 2. Whether the defendant has received Rs.1,15,000/- as earnest money from the plaintiff? OPP 3. If issue no.1 & 2 are decided in favour of plaintiff, then whether he is entitled to the relief of possession and injunction as prayed for?OPP 4. Whether the plaintiff has locus standi to file the present R.S.A. No.3720 of 2010 (O&M) -3- suit?OPD 5. Whether the plaintiff has suppressed the true and material facts from the Court?OPD 6. Whether the plaintiff has locus standi to file the present suit?OPD 7. Whether the plaintiff is estopped to file the present suit by his own act and conduct?OPD 8. Whether the suit has not been properly valued for the purpose of court fee?OPD 9. Relief. Both the parties led evidence in support of their case. After completion of the evidence of the parties, the trial Court heard both the counsel for the parties and after hearing them decided Issues No.1 to 3 in favour of the plaintiff. Issues No.4 to 8 were decided against defendant. Consequently, the suit was decreed with costs. The defendant feeling aggrieved from the aforesaid judgment and decree of the trial Court, preferred an appeal before the lower appellate court which was also dismissed. While dismissing the appeal, the lower appellate Court upheld the findings of the trial Court to the effect that agreement in question Ex.P1 which was a registered document was duly proved from the evidence of the scribe and registration clerk and the marginal witness of the said agreement to sell in question. It was further observed that the said agreement being registered document, presumption of truth was attached to the same. The Court also negated the argument of the appellant that no consideration had R.S.A. No.3720 of 2010 (O&M) -4- been passed to him and also recorded a finding of fact that appellant was in sound state of mind when he executed the document in question. Still not satisfied, the defendant has approached this Court by way of instant appeal, submitting that the following substantial questions of law arises in this appeal:- 1. Whether the judgment and decree are highly illegal and the same are not binding on the appellant being perverse in nature as having been recorded against law? 2. Whether there is no evidence on the record to prove the document Ex.P1 i.e. agreement to sell dated 30.06.2003? 3. Whether the defendant has failed to prove his willingness and readiness? 4. Whether the agreement to sell which is a fake and unspecified to the extent that no area of house to be sold was mentioned therein, can be sought to enforce? 5. Whether the Courts below have exercised the discretion in decreeing the suit against the sound principle of law? 6. Whether manifest and grave injustice is caused to the appellants? 7. Whether the fraud played upon the appellant stands proved? Learned counsel for the appellant has vehemently argued that if the evidence produced by the plaintiff is examined critically, it would come to the light that both the Courts below have miserably failed to interpret the law, as well as on facts by decreeing the suit of the plaintiff. It is further R.S.A. No.3720 of 2010 (O&M) -5- case of the appellant that the evidence on record to prove the execution of the agreement in question is highly deficient, discrepant, inconsistent, contradictory and leads to only one irresistible conclusion that the said agreement is a manipulated document and does not involve any authenticity and, therefore, the judgment and decrees of the Courts below are liable to be set aside. I have heard the learned counsel for the parties and perused the impugned judgments and decrees. The agreement to sell in question is a registered document. The execution of the aforesaid document stood proved from the testimony of scribe, marginal witness and the registration clerk. It is not in dispute that it has been recited in the said document that appellant received a sum of Rs.1,15,000/- as earnest money before the Sub-Registrar and in the presence of the marginal witness. The aforesaid endorsement cannot be disproved on the basis of oral evidence as alleged by the appellant. It is well settled that under Sections 91 & 92 of the Evidence Act, the contents of the document, the execution of which stands proved, cannot be contradicted by way of oral evidence. Admittedly, there is no documentary evidence on record to contradict the contents of the agreement to sell in question. Not only this, the agreement to sell in question is a registered document to which presumption of truth is attached. Though the aforesaid presumption of truth is rebuttable, however, there is no evidence in this regard. The Courts below have recorded the findings keeping in view the cumulative effect of the evidence on record and on the basis of the arguments raised. Even if taking of another view is possible, the findings of the Courts below cannot R.S.A. No.3720 of 2010 (O&M) -6- be held to be perverse so as to attract the provisions of Section 100 CPC. Thus, I find no merit in this case. No substantial question of law arises. Dismissed. November 16, 2010 ( RAKESH KUMAR GARG ) renu JUDGE