Regular Second Appeal No. 3708 of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.3708 of 2006 Date of decision: 11.09.2009 Sadhu Ram s/o Daya Ram s/o Shri Ram Lal r/o village Gullarpur, Sub Tehsil Nissing, District Karnal. ..... Appellant. Versus Ajmer Singh s/o Shri Munshi Ram s/o Shri Kanhahiya Ram, r/o village Gullarpur, Sub Tehsil Nissing, District Karnal. ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr.Ram Chander, Advocate for the appellant. Mr. K.S. Malik, Advocate for the respondent. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 16.12.2005, rendered by the Court of Civil Judge (Junior Division), Karnal, vide which it decreed the suit, for specific performance, and the judgment and decree dated 11.08.2006 rendered by the Court of Additional District Judge, Karnal, vide which it dismissed the appeal. Regular Second Appeal No. 3708 of 2006 2 2. The facts, in brief, are that the defendant(now appellant) claimed himself to be the owner of plot/bara. He executed an agreement to sell dated 13.09.1999, in favour of the plaintiff(now respondent) in respect of the bara/plot, detailed in the plaint, for a sale consideration of Rs.1,50,000/- and received a sum of Rs.1,25,000/- as earnest money. The sale deed was to be executed and got registered on or before 20.02.2000. The plaintiff always remained ready and willing to perform his part of the contract, but the defendant breached the terms and conditions thereof. It was further stated that the defendant was asked, so many times, to execute and get registered the sale deed, in favour of the plaintiff, but to no avail. On his final refusal, left with no alternative, a suit for specific performance was filed. 3. The defendant, put in appearance, and contested the suit, by way of filing written statement. He pleaded that the plaintiff had no locus standi, to file the suit; and the suit was not maintainable. It was admitted by the defendant, that he executed an agreement to sell in favour of the plaintiff, in respect of the plot/bara, for a sale consideration of Rs.1,50,000/- and received a sum of Rs.50,000/- as earnest money on the same day. It was stated that a fraud was played upon him, by the plaintiff, by inserting an amount of Rs.1,25,000/- as earnest money instead of Rs.50,000/-, in connivance with the deed writer and other witnesses. It was further stated that the defendant never received an amount of Rs.1,25,000/-, as earnest money, from the plaintiff. It was further stated that the defendant Regular Second Appeal No. 3708 of 2006 3 when came to know of this fraud, he also filed a criminal complaint under Sections 417, 418, 420, 465, 467, 471 and 120-B of the Indian Penal Code. The remaining averments, contained in the plaint, were denied, being wrong. 4. From the pleadings of the parties, the following issues, were framed, by the trial Court:- “1- Whether the plaintiff is entitled to possession of the suit property by way of specific performance of the agreement to sell dated 13.09.1999 and in the alternative is entitled to recover the double amount of earnest money paid by him ?OPP 2- Whether the suit of the plaintiff is not maintainable or the plaintiff has locus standi to file the present suit? OPD 3- Relief.” 5. The parties led evidence, in support of their case. The trial Court, after hearing the Counsel for the parties, and, on going through the evidence and record of the case, decreed the suit, as stated above. 6. Feeling aggrieved, an appeal was preferred by the appellant/defendant, which was dismissed by the Court of Additional District Judge, Karnal, vide its judgment and decree dated 11.08.2006. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellant/defendant. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. Regular Second Appeal No. 3708 of 2006 4 9. The Counsel for the appellant submitted that the defendant/appellant, only executed an agreement to sell, in respect of the bara/plot, referred to above, for a total sale consideration of Rs.1,50,000/-. He further submitted that, in the agreement to sell, instead of the payment of Rs.50,000/- as earnest money, a sum of Rs.1,25,000/- was got inserted, by way of playing fraud. He further submitted that the judgments and decrees of the Courts below, being illegal were liable to be set aside. 10. On the other hand, the Counsel for the respondent/plaintiff, submitted that the execution of the agreement to sell was duly admitted by the appellant/defendant. He further submitted that an amount of Rs.1,25,000/-, as earnest money, was written in the agreement to sell, and it was not lateron inserted. He further submitted that an amount of Rs.1,25,000/-, as earnest money, was received by the appellant, at the time of execution of the agreement to sell. He further submitted that no evidence was produced by the appellant/defendant, to prove that insertion of a sum of Rs.1,25,000/- instead of Rs.50,000/- was made lateron, in the agreement to sell, by playing fraud. He further submitted that the judgments and decrees of the Courts below, being legal and valid, were liable to be upheld. 11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. It is settled principle of law, that this Court, in Regular Second Appeal cannot interfere into the concurrent findings of fact, recorded by the Regular Second Appeal No. 3708 of 2006 5 Courts below, even if, the same are grossly erroneous, until and unless it comes to the conclusion, that the same were the result of mis-reading and mis-appreciation of evidence or non consideration of the material pieces of evidence. The execution of the agreement to sell, dated 13.03.1999 in respect of the plot/bara, was admitted by the defendant/appellant. Even the execution of the same was proved from the evidence of Vinod Kumar, Document Writer,(PW-2), who deposed that the contents thereof were read over and explained to the parties, and the witnesses who after admitting the same to be correct, thumb marked and signed the same. Ajmer Singh, plaintiff also corroborated his statement. No evidence was led by the defendant/appellant, to prove that insertion of a sum of Rs.1,25,000/- instead of Rs.50,000/-, was made lateron in the agreement to sell. Had the intention of the plaintiff been fraudulent, he would not have even paid a sum of Rs.50,000/- to the defendant/appellant, as admitted by him. The case set up by the defendant, to the effect that an amount of Rs.50,000/- was only paid and not a sum of Rs.1,25,000/- which was inserted in the agreement to sell lateron appears to be concocted. Fraud is required to be proved in the civil case, beyond a reasonable doubt as in the criminal case. Mere allegation of fraud, without substantiation through any cogent and convincing evidence, does not prove the same. The Courts below were, thus, right in holding that a legal and valid agreement to sell was executed by the defendant, in favour of the plaintiff, in respect of the plot/bara, and he received a sum of Rs.1,25,000/-, as earnest money, at that time. The Regular Second Appeal No. 3708 of 2006 6 Courts below were also right, in holding that no fraud was committed with the defendant/appellant by the plaintiff. 12. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, warranting the interference of this Court, and are liable to be upheld. The submission of the Counsel for the appellant, being without merit,must fail, and the same stands rejected. 13. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 14. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. ( Sham Sunder ) September 11, 2009 Judge dinesh