R. S. A. No. 2236 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2236 of 2010 Date of Decision : July 20, 2010 Harish Kumar .... Appellant Vs. Gopi and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Anil Rathee, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Harish Kumar plaintiff has filed the instant second appeal, after having remained unsuccessful in both the courts below. Appellant filed suit against respondents Gopi and Smt. Brahma Devi for specific performance of the agreement to sell dated 18.01.2000 and also sought relief of mandatory injunction and permanent injunction. Plaintiff's case is that defendant no.1 agreed to sell the suit land measuring 37 kanals 19 marlas to the plaintiff for Rs.8,54,000/- and received the entire sale price in advance and executed agreement dated 18.01.2000 and also executed a separate receipt. However, defendant no.1 instead of executing sale deed in favour of the plaintiff, sold the suit land to R. S. A. No. 2236 of 2010 2 defendant no.2 vide registered sale deed dated 07.06.2004. The said sale deed has also been challenged in the suit as null and void. Defendant no.1 was proceeded ex-parte in the trial court. Defendant no.2 contested the suit and pleaded that the suit is collusive between plaintiff and defendant no.1 because defendant no.1 is real father-in-law of the plaintiff. It is also pleaded that defendant no.1 sold the suit land to defendant no.2 for valuable consideration of Rs.10,92,000/- and the sale deed is legal and valid. Possession of the suit land was also delivered to defendant no.2 at the time of sale deed. Plaint allegations were controverted. Suit was alleged to be barred by Order 2 Rule 2 of the Code of Civil Procedure (in short – CPC), as plaintiff had earlier filed a similar suit, which was got dismissed by the plaintiff. Learned Additional Civil Judge (Senior Division), Ganaur, vide judgment and decree dated 23.04.2008, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Sonepat, vide judgment and decree dated 22.01.2010. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Plaintiff filed the suit on 29.07.2005 for specific performance of the agreement dated 18.01.2000. Consequently, the suit was barred by limitation and has been rightly held to be so by the courts below. R. S. A. No. 2236 of 2010 3 The plaintiff had also earlier filed a suit for permanent injunction. At that time also, the plaintiff, as per his version, was entitled to seek relief of specific performance of the agreement, but did not seek the said relief in that suit. In view thereof, the instant second suit is barred by Order 2 Rule 2 CPC. Even on merits, it is a clear case of collusion between plaintiff and defendant no.1 as defendant no.1 is none else, but real father-in-law of the plaintiff. Defendant no.1 sold the suit land to defendant no.2 vide registered sale deed dated 07.06.2004 and delivered possession of the suit land to defendant no.2 and thereafter, the instant suit was got filed and in the suit, defendant no.1 remained ex-parte. Defendant no.2 is bona fide purchaser of the suit land for valuable consideration of Rs.10,92,000/-, without notice of the alleged agreement between plaintiff and defendant no.1. Moreover, plaintiff seeks specific performance of the alleged agreement, which had become time barred when defendant no.2 purchased the suit land. Plaintiff's version that he had paid the full sale price to defendant no.1 at the time of impugned agreement has also been falsified by his own evidence. The plaintiff in the plaint pleaded that the entire sale price was paid on 18.01.2000 at the time of agreement and for the same, a separate receipt was also issued on the same date. However, in the witness- box, the plaintiff deposed that he had paid Rs.2,50,000/- about fifteen days R. S. A. No. 2236 of 2010 4 prior to the agreement. However, no such plea has been raised in the plaint nor there is any such recital in the agreement or receipt. Plaintiff also stated that he had paid Rs.6,50,000/- at the time of impugned agreement dated 18.01.2000. Thus, according to plaintiff's case, he paid Rs.9,00,000/- in all to defendant no.1, but the impugned agreement was for Rs.8,54,000/- only and according to the plaint as well as recital in the agreement and receipt, the plaintiff paid Rs.8,54,000/- to defendant no.1 and not Rs.9,00,000/- as stated by the plaintiff in the witness-box. It is thus apparent that the agreement and receipt are not genuine documents and are result of collusion between plaintiff and his father-in-law – defendant no.1. It is also significant to notice that that according to the recital in the agreement as well as plea of the plaintiff, possession of the suit land was also delivered to plaintiff at the time of agreement, but it is in evidence that defendant no.2 is in possession of the suit land. There is also no explanation why the plaintiff did not seek specific performance of the agreement for 5½ years even after having paid entire sale consideration and having not obtained possession of the suit land. Moreover, instead of getting executed the agreement, the plaintiff would have got executed sale deed on the date of agreement itself if he had paid the entire sale consideration on that date. There is no explanation why agreement was executed and why sale deed was not executed on that day. For the reasons aforesaid, there is no merit in the instant second R. S. A. No. 2236 of 2010 5 appeal. Both the courts below have concurrently recorded finding against plaintiff-appellant. The said finding is fully justified by the evidence on record and does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. July 20, 2010 ( L. N. MITTAL ) monika JUDGE