RSA No.413 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.413 of 2010 (O & M) Date of Decision: 09.02.2011 Bhajan Lal ……Appellant Versus Ajit Singh …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Vipin Mahajan, Advocate for the appellant. Mr. Arun Abrol, Advocate for the respondent. L.N. MITTAL, J (ORAL) Defendant-Bhajan Lal, having failed in both the Courts below, has filed the instant second appeal. Respondent-plaintiff Ajit Singh filed suit for possession of the suit house measuring 3 marlas by specific performance of the agreement to sell dated 26.11.2001. The plaintiff’s case is that defendant agreed to sell the suit house to plaintiff for Rs.80000/- and received Rs.33000/- as earnest money and executed the aforesaid agreement. The plaintiff always remained ready and willing to perform his part of the contract, but the defendant committed breach thereof. Stand of the defendant is that of total denial. He also pleaded that he is owner of half share in the suit property and remaining half share is owned by his wife Tripta Devi. RSA No.413 of 2010 (O & M) - 2 - Learned Civil Judge (Junior Divison), Gurdaspur vide judgment and decree dated 04.02.2008 decreed the plaintiff's suit for joint possession by specific performance of the agreement to the extent of half share of the defendant in the suit house. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Gurdaspur vide judgment and decree dated 30.07.2009. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Plaintiff has proved due execution of the agreement by examining deed writer, who scribed the same. Entry thereof was also made in his register. He also stated about payment of earnest money vide separate receipt. Jagir Singh PW-2 is attesting witness of the agreement. He has also supported the plaintiff’s case. The plaintiff himself also stepped into the witness box and stated according to his own version. On the other hand, defendant himself appeared in the witness box and broadly deposed according to his version. The defendant also examined handwriting expert, who gave report that alleged signatures of defendant on the agreement did not match with his specimen signatures. Learned counsel for the appellant contended that execution of the agreement in question has not been proved. The contention cannot be accepted. Execution of the agreement Ex.P-1 is fully proved by cogent evidence led by the plaintiff. Besides testimony of the plaintiff, there are statements of scribe of the agreement as well as one attesting witness of the agreement. Moreover, the defendant in the opening line of his cross- examination admitted his signatures on the impugned agreement Ex.P-1. It further adds strength to the case of the plaintiff. Resultantly, testimony of handwriting expert examined by the defendant becomes redundant and is RSA No.413 of 2010 (O & M) - 3 - rather falsified because the defendant himself has admitted his signatures on the impugned agreement. In addition to the aforesaid, defendant remained completely evasive in his cross-examination, further demolishing the case of the defendant. The defendant stated that he did not know if agreement Ex.P-1 was scribed by deed writer Prabh Dayal PW-1 and he read-over the same to both the parties. The defendant also did not know if Jagir Singh and Sucha Singh were attesting witnesses of the agreement. The defendant also stated that he did not know if he had received Rs.33000/- as earnest money out of the total sale consideration of Rs.80000/-. The defendant thus did not dare to deny the version of the plaintiff and rather thought it proper to play safe by expressing ignorance about the material facts. Obviously, in view of aforesaid cross-examination of the defendant including his admission of his signatures on the impugned agreement, nothing survives for determination. The testimony of the defendant stands completely demolished whereas plaintiff’s evidence is very cogent and reliable. In addition to the aforesaid, the plaintiff has proved his readiness and willingness to perform his part of the contract. He appeared before the Sub-Registrar on 27.11.2002 to get the sale deed executed in terms of the agreement, but defendant did not turn up. The plaintiff thereafter served notice dated 27.01.2003 on the defendant requiring him to execute the sale deed on 05.02.2003. The plaintiff appeared before the Sub-Registrar on 05.02.2003 also to get the sale deed executed, but the defendant did not turn up. Defendant admitted the receipt of the said notice from the plaintiff. The defendant asserted that he had sent reply to the said notice. However, alleged reply has not seen the light of the day. The defendant in cross-examination stated that he is not in possession of the reply sent by him to the legal notice dated 27.01.2003 and he cannot RSA No.413 of 2010 (O & M) - 4 - produce the said reply. It is thus manifest that the defendant did not send any reply or the reply if sent and produced would have gone against the defendant and, therefore, he has withheld the same. Consequently, adverse presumption arises against the defendant. Thus plaintiff’s evidence is sufficient to depict that he has always been ready and willing to perform his part of the contract and the defendant committed breach thereof. The defendant admitted that he was not ready to execute the sale deed in terms of the agreement. The plaintiff has, therefore, been rightly granted relief of specific performance of the agreement. The defendant is completely dishonest. Firstly, he denied the agreement although in cross- examination, he admitted his signatures on the agreement which has also otherwise been proved by the plaintiff. Secondly, the defendant agreed to sell the entire suit house claiming himself to be owner thereof. However, in written statement, he pleaded that he had only half share in the suit house whereas the remaining half share is owned by his wife Tripta Devi which is also evident from sale deed EX.DA. Thus the plaintiff has already been cheated by the defendant by depriving him of half share in the suit house. Courts below have decreed the suit of the plaintiff regarding only half share in the house, although the agreement was regarding the entire house. Concurrent finding recorded by both the Courts below in favour of the plaintiff-respondent does not suffer from any illegality or perversity so as to call for interference in second appeal. The said finding is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not based on misreading or misappreciation of evidence which may warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely frivolous and meritless and is accordingly dismissed. (L. N. MITTAL) JUDGE RSA No.413 of 2010 (O & M) - 5 - 09.02.2011. A.kaundal