R. S. A. No. 4872 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4872 of 2009 Date of Decision : July 07, 2010 Maghar Singh and another .... Appellants Vs. Pal Dass .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sarjit Singh, Senior Advocate with Mr. Jagdev Singh, Advocate for the appellants. Mr. S. S. Salar, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : This is second appeal by Maghar Singh – defendant no.2 and by Pargat Singh as legal representative of his grandmother Parsin Kaur – defendant no.1 (since deceased), after having remained unsuccessful in both the courts below. Suit was filed by respondent Pal Dass against the defendants for specific performance of the agreement to sell dated 05.11.1999. It was alleged that Parsin Kaur was owner in possession of 5/36th share of 59 bighas 15 biswas land, whereas Maghar Singh was owner in possession of 1/9th share of the said land. Both the defendants thus had R. S. A. No. 4872 of 2009 2 1/4th share in the total land. Their share came to 14 bighas 14 biswas. They agreed to sell the same to the plaintiff vide agreement dated 05.11.1999 @ Rs.35,000/- per bigha and received Rs.4,96,000/- as earnest money and executed the aforesaid agreement. Sale deed was to be executed up to 05.11.2000. However, on the request of defendants, vide separate writing on 03.11.2000, date of execution of sale deed was extended from 05.11.2000 to 17.11.2000. Accordingly, on 15.11.2000, plaintiff asked the defendants to remain present in the office of Sub Registrar on 17.11.2000 to execute the sale deed as per agreement. The plaintiff went to the office of Sub Registrar on 17.11.2000 with requisite amount, but the defendants did not turn up. The plaintiff always remained ready and willing to perform his part of the contract, but the defendants committed breach thereof. Accordingly, plaintiff filed suit for specific performance of the agreement to sell and also for permanent injunction. Defendants inter alia pleaded that they never agreed to sell the suit land to the plaintiff nor executed the impugned agreement dated 05.11.1999. According to defendants, plaintiff and Nazar Singh agreed to advance Rs.1,50,000/- to the defendants on the condition that the defendants would have to execute agreement for double of the said amount and interest for two years and the amount would be paid to the defendants after 6-7 days of the execution of the agreement. Accepting the said conditions, defendants purchased stamp papers and executed the agreement. However, R. S. A. No. 4872 of 2009 3 plaintiff and Nazar Singh refused to pay the amount of Rs.1,50,000/- as agreed. Defendants demanded back the aforesaid agreement. Ultimately, the defendants were taken to Bhawanigarh on 03.11.2000 on the pretext that the agreement would be returned there after getting executed a receipt regarding return of the agreement. Accordingly, the plaintiff and Nazar Singh got executed the agreement for extension of date of sale deed by fraud on 03.11.2000 instead of receipt regarding return of the agreement and then plaintiff and Nazar Singh tore some document telling that the agreement had been torn. The defendants denied having received Rs.4,96,000/- from the plaintiff. Learned Additional Civil Judge (Senior Division), Sangrur, vide judgment and decree dated 11.08.2004, decreed the plaintiff's suit. First appeal preferred by Maghar Singh defendant and by Pargat Singh – legal representative of Parsin Kaur, has been dismissed by learned Additional District Judge, Sangrur, vide judgment and decree dated 06.10.2009. Feeling aggrieved, they have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. The plaintiff, besides himself entering into the witness-box, has examined scribe Mohinder Partap Sharma, who scribed both agreement dated 05.11.1999 and writing dated 03.11.2000 regarding extension of date of sale deed. The plaintiff has also examined Nazar Singh – one of the two R. S. A. No. 4872 of 2009 4 marginal witnesses of the agreement dated 05.11.1999 and Tarsem Dass – one of the two marginal witnesses of writing dated 03.11.2000 regarding extension of date of sale deed. All the witnesses have supported the plaintiff's case. On the other hand, Maghar Singh defendant himself stepped into the witness-box and deposed according to his version. Defendants also examined three other witnesses, who deposed that they had accompanied plaintiff and Nazar Singh to Bhawanigarh for return of the sale agreement and there thumb impressions of the defendants were obtained, telling that it was receipt for return of the agreement and then some document was torn telling that the original agreement had been torn. Both the courts below, on appreciation of evidence, have found that the plaintiff has proved his case. In fact, the defendants themselves have admitted in the written statement that they had executed agreement dated 05.11.1999 knowing that it was an agreement for sale and that recital of payment of Rs.4,96,000/- had been made therein. Thus, execution of the agreement dated 05.11.1999 not only stands proved by cogent evidence led by the plaintiff, but also stands expressly admitted by the defendants in their written statement. However, defendants have miserably failed to prove their version that the said agreement was executed in lieu of loan of Rs.1,50,000/-, which was to be paid after 6-7 days by plaintiff and Nazar Singh to the defendants. In support of this contention, we have self-serving bald and oral statement of Maghar Singh defendant only. The said R. S. A. No. 4872 of 2009 5 statement is not sufficient to rebut the evidence led by the plaintiff. Scribe of the agreement and writing regarding extension of date of sale deed did not know the parties personally, but he has proved due execution of both the said documents, whereas identity of the parties is not in dispute because the defendants themselves have admitted the execution of the agreement as well as the writing. So, the statements of the scribe as well as one marginal witness of the agreement and one marginal witness of the writing for extension of date of sale deed fully corroborate and prove the plaintiff's version. Defendants' version is not substantiated by any cogent evidence. In addition to the aforesaid, the defendants also executed writing dated 03.11.2000. Their plea that the said writing was obtained by fraud by telling that it was receipt regarding return of the agreement cannot be accepted. The case of the defendants is that even the original agreement dated 05.11.1999 was result of fraud played upon by the plaintiff and Nazar Singh. If that were so, the defendants would not have executed writing dated 03.11.2000 regarding extension of date of sale deed presuming it to be receipt for return of agreement and that too, without taking back original agreement. Thus, the defendants' version is entirely unreliable and untenable. It may be added that writing dated 03.11.2000 was allegedly executed in the presence of three witnesses of the defendants themselves. When three witnesses of defendants themselves were present at that time, it is unbelievable that the said writing was obtained by fraud from the R. S. A. No. 4872 of 2009 6 defendants saying it to be receipt for return of agreement. Learned counsel for the appellants vehemently contended that it was suggested to defendant Maghar Singh in his cross-examination that a sum of Rs.2,48,000/- had been paid as earnest money at the time of agreement and therefore, plaintiff's version that a sum of Rs.4,96,000/- had been paid as earnest money is belied. The contention appears to be attractive on first blush, but cannot be accepted. The plaintiff, while appearing in the witness-box, testified according to his version that he had paid Rs.4,96,000/- as earnest money to the defendants. To the same effect are the statements made by scribe and Nazar Singh witnesses. Learned counsel for plaintiff-respondent rightly pointed out that a wrong suggestion was put to Maghar Singh defendant in his cross-examination by counsel for the plaintiff regarding payment of Rs.2,48,000/- as earnest money. It was recited in the agreement that a sum of Rs.4,96,000/-, half of which is Rs.2,48,000/-, had been paid by the plaintiff to the defendants and the counsel, while putting this suggestion, took the amount of Rs.2,48,000/- as the amount paid as earnest money. Merely putting of said suggestion to defendant Maghar Singh in his cross-examination would not be fatal to the case of the plaintiff, who has led cogent evidence to prove his case. Learned counsel for the appellants also contended that almost entire sale price was allegedly paid as earnest money, but in spite thereof, admittedly the plaintiff had not taken possession of the suit land at the time R. S. A. No. 4872 of 2009 7 of agreement. It was also pointed out that according to recital in the agreement, possession of the suit land had been delivered to the plaintiff at the time of agreement, but the plaintiff admitted in the witness-box that possession of the suit land had not been delivered to him. It was also contended by learned counsel for the appellants that after paying almost the entire sale price and without taking possession of the suit land, long date of one year would not have been fixed for execution of the sale deed. Learned counsel for the respondent, however, countered the aforesaid contentions by submitting that it was agreed at the time of agreement that defendants would deliver possession of the suit land to the plaintiff at the spot after execution of agreement and therefore, it was recited in the agreement that possession of the suit land had been delivered to the plaintiff, but after execution of the agreement, the defendants did not deliver actual physical possession of the suit land to the plaintiff at the spot. It was thus contended that long date for execution of the sale deed was fixed because as per agreement, possession had to be delivered to the plaintiff after the execution of the agreement. I have carefully considered the aforesaid contentions. Contentions raised by learned counsel for the appellants have been duly countered by learned counsel for the respondent. As per recital in the agreement, possession was delivered to the plaintiff at the time of agreement, but thereafter, actual physical possession was not delivered by R. S. A. No. 4872 of 2009 8 the defendants to the plaintiff at the spot. Consequently, the contentions raised by learned counsel for the appellants cannot be accepted. There is concurrent finding by both the courts below in favour of the plaintiff-respondent. The said finding has been recorded after proper appreciation of evidence and is supported by sound reasons recorded by both the courts below. The said finding is not shown to be perverse or illegal so as to warrant interference in second appeal. On the other hand, plaintiff's case is fully proved by his cogent evidence and even by own admission of defendants that they had executed the agreement dated 05.11.1999 knowing it to be agreement to sell. Consequently, no question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed. July 07, 2010 ( L. N. MITTAL ) monika JUDGE