RSA No.634 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.634 of 2010 Date of Decision: 11.02.2010 Gagandeep Singh and others .……Appellants Versus Amar Nath ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Ram Kumar Chauhan, Advocate for the appellants. L. N. MITTAL, J (ORAL) CM No.1787-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 15 days in refiling the appeal is condoned. Main Appeal This is second appeal by legal representatives of defendant-Ravinder Singh since deceased, having remained unsuccessful in both the Courts below. Respondent-Amar Nath filed suit against Ravinder Singh for specific performance of the agreement to sell alleging that the defendant agreed to sell the suit house to the plaintiff vide agreement dated 30.11.2000 for Rs.1,00,000/- and received Rs.65,000/- as earnest money from the plaintiff. Sale deed was to be executed upto 02.06.2001. However, on 01.06.2001, the defendant expressed inability to execute the sale deed on 02.06.2001 and extended the RSA No.634 of 2010 -2- date for execution of sale deed till 11.12.2001 and received further part sale consideration of Rs.20000/- from the plaintiff. However, the defendant failed to execute the sale deed even on 11.12.2001, although the plaintiff remained present in the office of Sub-Registrar for getting sale deed executed and registered as per agreement. Thereafter notice dated 04.01.2002 was also served on the defendant for performing the agreement, but he failed to do so. Defendant in his written statement controverted the allegation of the plaintiff and pleaded that he had borrowed Rs.35,000/- only from the plaintiff, who obtained his signatures on blank stamp paper as well as in the register of Deed Writer. Execution of the impugned agreement was denied. It was also denied that the defendant agreed to sell the suit property to the plaintiff. Learned Additional Civil Judge (Senior Division), Hoshiarpur vide judgment and decree dated 26.05.2005 decreed the suit filed by the plaintiff-respondent. First appeal preferred by defendant has been dismissed by learned Additional District Judge, Hoshiarpur vide judgment and decree dated 25.09.2009. Feeling aggrieved, the instant second appeal has been preferred by legal representatives of the defendant since deceased. I have heard learned counsel for the appellants and perused the case file. The plaintiff himself appeared in the witness box and stated broadly according to his version. The plaintiff also examined stamp vendor, who stated that the defendant had purchased the stamp paper for the impugned agreement. Harmesh Pal one of the RSA No.634 of 2010 -3- two marginal witnesses of the agreement has also appeared as PW- 3 and stated about the execution of the agreement by defendant and payment of Rs.65,000/- as earnest money by the plaintiff to the defendant. Sagar Chand, PW-4 proved writing dated 01.06.2001 whereby time for execution of sale deed was extended on the request of defendant, who also received further amount of Rs.20000/- from the plaintiff. Nasib Singh, Deed Writer PW-5 stated that he had scribed the agreement at the instance of the defendant, who executed the same and also affixed his signatures in the register of the witness. On the other hand, defendant appeared as DW-1 and broadly stated according to his version. Defendant also examined Bakhshish Singh DW-2, who stated about valuation of the suit property. Kimti Lal DW-3 is other marginal witness of the agreement. He has stated that he had only signed one blank stamp paper out of the 5 stamp papers of the agreement. He also stated that the stamp paper had not been signed by plaintiff or Harmesh Pal witness at that time. Learned counsel for the appellant contended that Kimti Lal witness of the agreement has denied the execution of the agreement by the defendant and, therefore, execution of the agreement is not proved. The contention is devoid of any merit. Merely because Kimti Lal has been won over by the defendant, the plaintiff could not be non-suited. The plaintiff led sufficient, cogent and reliable evidence to prove his case. The plaintiff has examined Stamp Vendor, who sold stamp papers of agreement to the defendant, Deed Writer, who scribed the agreement and another marginal witness Harmesh Pal, who was also supported the plaintiff's RSA No.634 of 2010 -4- case. Moreover, statement of Kimti Lal, DW-3, does not inspire confidence at all. He stated that when he signed the blank stamp paper, the stamp papers had not been signed by the parties. It is not explained by Kimti Lal why he signed the blank stamp paper when even defendant, who had taken loan from the defendant, had not signed the stamp paper and even the plaintiff creditor had not signed the same. Moreover, the defendant had to take loan from the plaintiff. There was no reason why Kimti Lal DW-3 would sign a blank stamp paper and that too, at the asking of the plaintiff. Kimti Lal stated that he never signed any blank paper except the one which is part of the agreement. It thus becomes manifest that Kimti Lal was not stating the truth when he entered into the witness box. Learned counsel for the appellants also contended that value of the suit property was 4,26,000/- as stated by valuer Bakhsish Singh DW-2 and, therefore, defendant would not have agreed to sell the suit property for Rs.1,00,000/- only. This contention also lacks any merit. Firstly, the contention is beyond pleadings. No such plea was admittedly taken in the written statement. Consequently, the plaintiff had no opportunity to respond to the same. In any event, the factual plea cannot be raised without pleading. Secondly, the value stated by Bakhshish Singh DW-2 was assessed almost 2 years after the agreement and in the meanwhile, market price of the suit property could have increased. Thirdly, the agreement cannot be discarded merely on the ground of inadequate sale consideration. Learned counsel for the appellants also contended that the appellants would face great hardship. However, this plea also RSA No.634 of 2010 -5- cannot be accepted because it is beyond pleadings and evidence. Learned counsel for the appellants contended that this plea was raised before the lower appellate Court. However, it does not help the appellants in the absence of any pleading and evidence. There is concurrent finding of fact by both the Courts below based on proper appreciation of evidence. The said finding cannot be said to be illegal or perverse in any manner. 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 in limine. ( L. N. MITTAL ) JUDGE 11.02.2010 A. Kaundal