RSA No. 1860 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1860 of 2005 Decided on : 29-04-2009 Dalip Singh ....Appellant VERSUS Kuldip Singh ....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Kuldip Sanwal, Advocate for the appellant Mr. Vinod Arya, Advocate for the respondent MAHESH GROVER, J This is defendant's appeal directed against the judgments of the learned Trial Court dated 21.7.2003 and that of the First Appellate Court dated 30.11.2004. The plaintiff-respondent filed a suit for possession by seeking specific performance of an agreement to sell dated 31.12.1997 purportedly executed by the defendant-appellant in his favour for sale of the land which has been described in the suit. The total sale consideration was fixed at Rs.90,000/- out which Rs. 63,700/- was received as earnest money on 31.12.1997 and the balance sale consideration of Rs.26,300/- was to be paid at the time of execution of the sale deed which was to be carried out on 31.10.1998. It was the pleaded case of the plaintiff-respondent that he was ready and willing to get the sale deed executed but the appellant defaulted forcing him to serve a legal notice on 2.11.1999 but the appellant refused to RSA No. 1860 of 2005 2 respond to it and consequently he was constrained to file the present suit. The appellant-defendant who contested the suit pleaded that the plaintiff-respondent is a money lender and that a loan was raised which was repaid. The agreement was denied. It was pleaded that it was a result of fraud. Both the parties went to trial on the following issues:- 1. Whether the plaintiff is unauthorised money lender, if so its effect?OPD. 2. Whether agreement dated 31.12.1997 is forged and fabricated document?OPD 3. Whether the plaintiff is entitled to relief of possession as claimed for ?OPP 4. Whether the plaintiff is entitled to alternative relief or recovery of Rs. 90,000/- with interest?OPP 5. Relief Both the Courts concluded that the agreement to sell had been validly executed and passing of the part consideration of the sale amount was also established as was the plaintiff's readiness and willingness to execute the sale deed by remaining present in the office of Sub-Registrar on 31.10.1998. The suit of the plaintiff-respondent was decreed and the appeal against that was dismissed. The appellant was directed to execute the sale deed which has resulted in filing of the present regular second appeal. It has been contended by the learned counsel for the appellant that the agreement to sell was result of fraud and there was sufficient evidence on record which was not appreciated by the Courts below. It was further pleaded that there was no evidence on record to show that the RSA No. 1860 of 2005 3 plaintiff-respondent was willing to execute the sale deed and was present in the office of Sub Registrar. It is pleaded that only evidence on record was a legal notice which was one year after the supposed date of execution of the sale deed which cannot be construed to be evidence for willingness and readiness of the plaintiff to perform his part of agreement. Therefore, findings of the learned Courts below are erroneous and deserve to be set aside. On the other hand, learned counsel for the respondent contended that he had specifically set up a plea that the agreement to sell had been validly executed which findings have been affirmed by both the Courts below in his favour. Passing of the amount of Rs.63,700/- was also proved. It is pleaded that it was a specific case set up by him that he was present in the office of Sub Registrar and thereafter, he issued a legal notice dated 2.11.1999 and in said notice he also submitted categorically that he was present in the office of Sub Registrar on 31.10.1998 and the appellant did not respond to this notice at all. He further contended that he had testified specifically to this fact also and appellant failed to cross-examine him on this aspect of the matter. It was thus prayed that the findings are correct and appeal deserves to be dismissed. I have heard learned counsel for the parties and have perused the impugned judgments. The plaintiff-respondent pleaded that there was an agreement to sell dated 31.12.1997 while the appellant denied the execution of the agreement and pleaded that it was result of fraud and also pleaded that it was a loan transaction and the document was never intended to be an agreement to sell. However, if the impugned judgments and the record are RSA No. 1860 of 2005 4 to be perused, the appellant has miserably failed to substantiate his case. No evidence was led regarding the plaintiff being the money lender and there being any money transaction between them. Regarding the document being forged and fabricated there is no evidence except for the bald statement made by him in his testimony. The onus to prove that the document was forged was only upon the appellant which he has failed to discharge. In this view of the matter, the findings of both the Courts below that there was valid and existing agreement in favour of respondent is correct. So far as passing of the sale consideration is concerned the appellant has admitted that he has received a sum of Rs.63,700/- although he tried to pass it off as a loan transaction. It is a settled principle of law that the contents of the document have to be read as they are and no other meaning can be construed or assigned to it. The intention of the parties is to be inferred from the contents of the existing document. Accordingly, in view of the fact that the appellant has failed to discharge the onus cast upon him to prove that the document was fabricated and that he had admitted that amount was received by him, I am of the considered opinion that the two ingredients which are most essential in a suit for specific performance i.e the execution of the agreement to sell and the passing of the sale consideration have been adequately proved by the plaintiff-respondent and the findings on this account cannot be faulted with. It has been stated by the appellant that there was no evidence to suggest that the respondent was willing to perform his part of the agreement. If the testimony of the plaintiff-respondent is to be seen, he has categorically stated that he was present in the office of Sub Registrar on the said date and has got himself marked present there. It is also his case that RSA No. 1860 of 2005 5 he was also present with the money. The appellant did not cross-examine him on this aspect of the matter. In para 5 of the plaint the plaintiff had categorically pleaded this fact also which was not even remotely denied by the appellant. In the notice dated 2.11.1999 which was sent by a registered post a specific averment to this effect was also made. The appellant did not respond to this legal notice. Therefore, keeping in view the totality of the circumstances I am of the considered opinion that the plaintiff-respondent has been able to discharge the onus to prove that he was present in the office of the Sub-Registrar on the said date and thus, the three ingredients which are essentially required to be pleaded and proved in a suit for specific performance are satisfied i.e (a) valid agreement to sell; (b) passing of the part sale consideration pursuant to the agreement to sell; (c ) readiness and willingness to perform the part of the agreement by the vendee. There can thus hardly be any ambiguity in the findings recorded by both the Courts below which have gone on to decree the suit and directed the execution of the agreement to sell. No substantial question of law has been shown to have arisen in the present appeal and the same being devoid of any merit is hereby dismissed. April 29, 2009 (Mahesh Grover) rekha Judge