Regular Second Appeal No.1986 of 2002. -1- In the High Court of Punjab & Haryana at Chandigarh. Regular Second Appeal No.1986 of 2002, Date of decision:15-2-2008 Ishwar Singh ...Appellant Versus Inder Singh ...Respondent. ... Coram: Hon'ble Mr. Justice K.C.Puri. ... Present: Mr.S.D.Bansal Advocate for the appellant. Mr.H.S.Gill, Senior Advocate with Mr.B.S.Bairagi Advocate for the respondent. ... K. C. Puri,J. Judgment. Under challenge is the judgment and decree dated 28.1.2002 passed by the then Additional District Judge, Jind by which he accepted the appeal with costs throughout. He directed Ishwar Singh, now appellant, to execute a sale deed in respect of agricultural land comprised in Rectangle No.39, Killa No.6 (8-0) and Rectangle No.40, Killa No.10(7-12), total measuring 15 Kanals 12 Marlas situated in the revenue estate of his village on getting the balance sale Regular Second Appeal No.1986 of 2002. -2- consideration of Rs.50,000/- from Inder Singh, respondent. He directed that sale deed be executed and registered within three months from the date of judgment failing which such sale deed was to be executed and registered by a nominee through the executing Court on application. The facts as culled out from the pleadings are that Inder Singh plaintiff filed a suit for specific performance of agreement to sell dated 29.1.1993 in respect of the land in suit on the averments that the defendant is the owner of the suit property. Defendant had entered into an agreement to sell in respect of suit property in his favour on 29.1.1993. The sale consideration was agreed to be Rs.1,65,000/-. He had paid a sum of Rs.1,15,000/- in cash to the defendant on 29.1.1993 as earnest money. The last date for the execution of the sale deed was agreed to be 15.6.1993. He had asked the defendant to execute the sale deed. However, the defendant avoided the execution of the sale deed on one pretext or the other. He had gone to the office of Sub Registrar, Safidon on 15.6.1993 with the balance sale consideration of Rs.50,000/-. However, the defendant did not come present. He had always been ready and willing to perform his part of the agreement and was still ready and willing to perform his part of the agreement. The defendant contested the suit and has pleaded in the written statement that he had never entered into agreement to sell in respect of the suit property in favour of the plaintiff on 29.1.1993. He has denied that he had received a sum of Rs.1,15,000/- as earnest Regular Second Appeal No.1986 of 2002. -3- money. He had taken some money on loan from the plaintiff on 29.1.1993 and executed a pronote in favour of the plaintiff. His thumb impressions might have been obtained by the plaintiff by fraud. The alleged agreement to sell is a false document. He had already mortgaged a part of the land with possession in favour of some other person and accordingly there was no question of his executing any agreement. The suit was also resisted on the ground of maintainability, fraud and mis-representation. The suit was also barred by Order 2 Rule 2 CPC. On the pleadings of the parties, the following issues were framed by the learned trial Court;- 1.Whether the defendant after receiving a sum of Rs.1,15,000/- as earnest money agreed to sell the suit land to the plaintiff and executed an agreement for sale deed dated 29.1.1993?OPP. 2.If issue No.1 is proved, whether the plaintiff is and was ready to perform his part of the agreement. If so, its effect?OPP. 3.If issue No.2 is proved, whether the plaintiff is entitled for the execution of the sale-deed as per the agreement dated 29.1.1993?OPP. 4.Whether the suit is not maintainable in the present form?OPD. Regular Second Appeal No.1986 of 2002. -4- 5.Whether the suit is false, frivolous and the defendant is entitled for special costs?OPD. 6.Whether the agreement dated 29.1.93 is based on fraud and mis-representation?OPD. 7.Whether the plaintiff has no cause of action?OPD. 8.Whether the suit is hit under Order 2 Rule 2 of CPC ? OPD. 9.Whether the plaintiff is estopped from filing the suit by his own act and conduct?OPD. 10.Relief. The learned trial Court decided all the issues against the plaintiff and in favour of the defendant. As a consequence thereof, the learned trial Court dismissed the suit vide judgment and decree dated 20.2.1998. Feeling aggrieved, the plaintiff filed an appeal which was accepted as noticed above. Dis-satisfied with the said judgment and decree, the defendant has preferred the instant appeal. I have heard arguments of learned counsel for the parties and have gone through the record of the case. The following question of law is formulated:- “Whether the first Appellate Court has mis-read, mis- interpreted and ignored the documentary evidence while Regular Second Appeal No.1986 of 2002. -5- holding agreement Exhibit PW3/A as a valid document” The whole controversy, in the present case, revolves around agreement Exhibit PW3/A. The learned trial Court has held that the said agreement is not proved in accordance with law whereas the first Appellate Court reversed that finding and has held that agreement, Exhibit PW3/A was validly executed by the defendant/appellant. The main stress made by the learned counsel for the appellant is that a pronote dated 29.1.1993 i.e. of the same date as that of agreement was executed by the defendant/appellant in favour of the plaintiff. That pronote was scribed by a deed writer sitting on the same bench, who scribed the alleged agreement, Exhibit PW3/A. In fact, the defendant has executed the pronote for a consideration of Rs.21,000/- in favour of the plaintiff and that fact has been proved by examining DW2 Sheetal Parkash. Besides this, the defendant/appellant has examined DW3 Prem Kumar, alleged witness of the agreement to sell who has categorically stated that no agreement was executed. The plaintiff has not examined any witness to prove the execution of said agreement. The scribe cannot be taken as a marginal witness. The documentary evidence of the pronote has not been relied upon by the learned trial Court. No notice regarding the execution of agreement was ever served upon the plaintiff. The plaintiff had taken a stand that he had obtained money from a Commission Agent but he has not examined that Commission Agent. So, in these circumstances, the learned first Regular Second Appeal No.1986 of 2002. -6- Appellate Court has mis-interpreted and mis-read the evidence and has ignored the documentary evidence while holding that agreement Exhibit PW3/A stands fully proved. Once, it is held that the said agreement is the result of fraud, the same cannot be acted upon. The marginal witness of the agreement was not examined by the plaintiff and the defendant had dared to examine DW3 Prem Kumar. A prayer has been made for acceptance of appeal after setting aside the judgment of the first Appellate Court and for restoring the judgment of the trial Court. In reply to the above-mentioned submissions, the learned counsel for the appellant has supported the judgment of the learned trial Court and has relied upon the authorities reported as Santosh Hazari Versus Purushottam Tiwari (Dead) by Lrs., 2001(3) R.C.R (Civil) 243 and Bhajan Kaur Versus Gurmej Singh, 2000(3) P.L.R.358. I have given my thoughtful consideration to the rival submissions of counsel for both the parties and have gone through the record of the case. After amendment of CPC, in 1973, the first Appellate Court is to be treated a final Court of fact. Pure findings of fact remain immune from challenge before the High Court in second appeal. In view of Sections 96 and 100(3), (4) and (5), the first Appellate Court is final Court of law. Its decision on law also, even if erroneous, may not Regular Second Appeal No.1986 of 2002. -7- be vulnerable before the High Court. High Court has now ceased to be available to correct the errors of law or the erroneous findings of first appellate Court even on question of law unless such question of law be a substantial one. The above-said observations have been made by the Hon'ble Supreme Court in authority reported as Santosh Hazari (supra). So, only substantial question of law can be decided in the Regular Second Appeal. Needless to say, that finding of fact returned by the first Appellate Court cannot be assailed in view of Section 100 of CPC. A single Bench of our High Court in Bhajan Kaur's case (supra) has held that the High Court cannot substitute its opinion for the opinion of the first Appellate Court unless it is found that the conclusions drawn by the lower Appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court or was based upon inadmissible evidence or arrived at without evidence. The first Appellate Court has given a finding of fact that the agreement is duly proved. That finding of fact cannot be challenged. Much stress has been laid by the counsel for the appellant on the entries regarding pronote produced by DW2 Sheetal Parkash. The learned first Appellate Court has given reasons for ignoring the same and those reasons cannot be said to be against law. The defendant/appellant has not brought to the notice of both the Courts Regular Second Appeal No.1986 of 2002. -8- below that who were the witnesses of the alleged pronote and the receipt. None of the alleged witnesses has been examined by the defendant/appellant. The submission made by the counsel of the appellant that agreement is not proved is without any substance. Prem Kumar, no doubt, has been produced by the defendant, but, his statement lends support to the case of the plaintiff rather than the case of the defendant/appellant. He has stated that agreement might be written by Sheetal Parkash regarding the sale of the land. He has admitted his signatures on the agreement. He has stated that he signed the agreement and had gone. He does not now about the transaction of sale. The agreement has been proved by the plaintiff by appearing himself as his own witness. The plaintiff has also examined PW1 Deepak Jain, Handwriting and Finger Print Expert who has stated that thumb impressions of the defendant appear on the agreement in question. The onus lies very heavily upon the defendant to prove that the agreement is the result of fraud after admitting the fact that his thumb impressions appear on the agreement in question. The plaintiff is also illiterate. He has thumb marked the agreement. So, it cannot be believed that an illiterate person can arrange such a fraud. Non-examination of Commission Agent is not fatal to the case of the plaintiff. It is a civil case and has to be decided on preponderance of evidence. The plaintiff has given the name of Commission Agent and the defendant could dis- Regular Second Appeal No.1986 of 2002. -9- prove the fact that no amount was advanced by the Commission Agent to the plaintiff on the date of agreement. The plaintiff appeared before the Sub Registrar and the defendant did not appear. Service of legal notice is not the requirement of law. The defendant/appellant could not convince this Court that first Appellate Court had, in any way, mis- interpreted or mis-read or has ignored the documentary evidence on the file and on that count the question of law stands determined against the defendant/appellant. In view of the above discussion, there is no merit in the appeal and the same stands dismissed. Decree sheet be prepared and the files of Courts below be returned after due compliance. This file be consigned to the Record Room. February 15 ,2008. ( K. C. Puri ) Jaggi Judge Regular Second Appeal No.1986 of 2002. -10- Regular Second Appeal No.1986 of 2002. -11- Regular Second Appeal No.1986 of 2002. -12- K.C. puri