R.S.A.No.2147 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2147 of 2009 Date of Decision : 06.10.2009 Sukhdev Singh and another ...Appellants Versus Pritam Singh ...Respondent CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. A.S.Jattana, Advocate, for the appellants. Mr. Jasjeet Singh, Advocate, for the respondent. HEMANT GUPTA, J. (ORAL) The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for specific performance of an agreement to sell dated 13.12.2001, was decreed. Vide the aforesaid agreement land measuring 6 Bighas 7 Biswas was agreed to be sold by the defendants in favour of the plaintiff on receipt of earnest money of Rs.1,90,000/-. The sale consideration was Rs.45,000/- per Bigha. The sale deed was to be executed on or before 15.12.2002. Since the defendants failed to execute the sale deed in favour of the plaintiff, the present suit for specific performance was filed on 25.1.2003. The defendants in the written statement asserted that the agreement is result of fraud and misrepresentation and that no such agreement was ever executed by the defendants. To prove the execution R.S.A.No.2147 of 2009 2 of the agreement, the plaintiff examined PW-2 Labh Singh, one of the attesting witness and also examined himself as PW-1. The deed writer namely Pawan Kumar Sharma was examined as PW-3, who has produced the entries from the register Exs.P-4 and P-5. On the other hand, the defendants during the course of evidence did not appear as witness nor led any evidence in support of their plea that the said agreement was result of fraud and misrepresentation. Learned trial Court returned a finding that the plaintiff has proved the due execution of the agreement to sell dated 13.12.2001 and that the plaintiff was ready and willing to perform his part of the contract. On the other hand, the defendants have failed to prove their assertion in the written statement that the agreement is result of fraud and misrepresentation. The only argument raised before the learned trial Court as well as before the learned first Appellate Court was that a case is pending with Tahal Singh regarding the same property in pursuance of a prior agreement to sell in other Court, therefore, decree for specific performance in respect of the same property cannot be granted. However, both the Courts have found that no such plea was taken in the written statement nor the defendants have disclosed the particulars of the case nor copy of the plaint of the suit has been filed nor the Court in which such suit is pending has been disclosed. Therefore, the said argument raised by the appellants was found to be without any substance. Before this Court, learned counsel for the appellants has again argued that suit in respect of same property at the instance of Tahal Singh is pending. However, again counsel for the appellants could not R.S.A.No.2147 of 2009 3 disclose any particular of the suit such as the Court before whom the case is pending, the stage and nature of the suit. The copy of the plaint was also not produced by the appellants even during the course of hearing of the present second appeal. Another argument raised by the learned counsel for the appellants is that the plaintiff never appeared before the Sub Registrar on 15.12.2002 i.e. the date agreed for the execution of the sale deed. The said argument is without any substance. The plaintiff has proved his presence before the Sub Registrar, which is evident from the affidavits Ex.P-2 dated 13.12.2002 and Ex.P-3 dated 16.12.2002. From the said affidavits, it is evident that the plaintiff has, in fact, appeared before the Sub Registrar. Even otherwise, the plaintiff has filed the suit for specific performance on 25.1.2003. It only shows that the plaintiff was always ready and willing to perform his part of the contract. Both the Courts have recorded concurrent finding of fact that the agreement to sell dated 13.12.2001 is proved to be executed by the defendant-appellants. Such finding is based upon proper appreciation of evidence. It could not be pointed that any evidence has been misread or not taken into consideration. Findings of fact recorded by the Courts below cannot be permitted to be disputed by reappreciation of evidence in second appeal. Consequently, I do not find that any substantial question of law arises for consideration by this Court. Dismissed. 06.10.2009 (HEMANT GUPTA) Vimal JUDGE