R.S.A. No. 832 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 832 of 2009 (O&M) Date of decision : 20.2.2009 Parma Nand ....Appellant Versus Kuldeep Singh ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Y.P.Singla, Advocate for the appellant. ..... MAHESH GROVER, J. This appeal by the defendant is directed against the judgments of the learned trial Court dated 18.5.2006 and that of the first Appellate Court dated 30.9.2008. A suit was filed by the respondent/plaintiff for enforcement of the agreement dated 17.6.2003 by which it was agreed that the land belonging to the appellant/defendant, which is described in the suit, would be sold to the respondent for a total consideration of Rs.3 lakhs. An earnest money of Rs.2,60,000/- was allegedly paid to the appellant and it was agreed that Rs.40,000/- would be paid at the time of execution of the sale deed, which was to be executed on 15.12.2003, but the time was extended upto 14.2.2004 vide endorsement dated 16.12.2003. It was the case of the R.S.A. No. 832 of 2009 (O&M) -2- plaintiff/respondent that 14.2.2004 and 15.2.2004 being holidays, he attended the office of the Sub-Registrar, Balachaur on 16.2.2004 and got his attendance marked in the office of the Sub-Registrar by executing an affidavit. Since the appellant failed to execute the sale deed, the instant suit was preferred with the aforesaid prayer of enforcement of the agreement and in the alternative it was prayed that an amount of Rs.5,20,000/- as damages be awarded. The appellant denied the execution of the agreement, pleaded fraud and all other pleas set up by the respondent in his plaint were also denied. Both the parties went to trial on the following issues :- 1. Whether on 17.5.2003, defendant entered into an agreement to sell his land, mentioned in the head- note of the plaint, with the plaintiff against a consideration of Rs.3,00,000/- and received Rs.2,60,000/- as earnest money from the plaintiff?OPP 2. Whether plaintiff always remained ready and willing to perform his part of contract?OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether plaintiff is estopped from filing the present suit by his own act and conduct?OPD 5. Whether plaintiff is guilty of suppressing true facts from the court?OPD 6. Whether plaintiff has no cause of action and locus R.S.A. No. 832 of 2009 (O&M) -3- standi to file the present suit?OPD 7. Whether suit of plaintiff is bad for non-joinder of necessary parties?OPD 8. Whether agreement in question is forged and fabricated document?OPD 9. Relief. The learned trial Court after appraisal of the evidence before it decreed the suit of the plaintiff/respondent and directed the enforcement of the agreement dated 17.6.2003 within a period of one month. In appeal, the findings of the learned trial Court were affirmed and the learned first Appellate Court directed the execution of the sale deed in the following terms :- “...Defendant is directed to execute the sale deed on the basis of agreement dt. 17.5.03 in favour of the plaintiff within a period of three months from today, upon receipt of balance sale consideration from the plaintiff. In case the defendant fails to execute the sale deed, the plaintiff shall be at liberty to get the sale deed executed through the court upon deposit of the balance sale consideration within one month from the expiry of aforesaid period of three months, as granted to the defendant, as mentioned above....” Aggrieved by the aforesaid, the instant second appeal has been preferred. Learned counsel for the appellant contended that R.S.A. No. 832 of 2009 (O&M) -4- according to Section 67 of the Indian Evidence Act, it was the bounden duty of the respondent to have got his signatures compared in order to establish the veracity of the agreement to sell. It was contended that having not been done so, it is fatal to the case of the respondent. I have heard the learned counsel for the appellant and have perused the impugned judgments. In a suit for specific performance the following three essential ingredients have to be proved :- i) the agreement to sell; ii) the passing of consideration; and iii) the willingness and readiness to perform the agreement. If the aforesaid tests are to be applied to the facts of the case, then it is to be noticed that the plaintiff/respondent examined Baldev Krishan, deed-writer as PW1, who specifically deposed having scribed the agreement and also having made an entry in his register at Sr.No.353 on the same date. The said entry also bears the signatures of the parties as also of the attesting witnesses. The attesting witness Rattan Singh was also examined as PW4 in support of the agreement. In this view of the matter, the initial onus which was upon the respondent to establish the execution of the agreement was satisfactorily discharged. The appellant had pleaded fraud and therefore once the execution of the agreement was established, it was for him to prove the fraud. The plea that according to Section 67 of the Indian Evidence Act it was the respondent who was required to prove his R.S.A. No. 832 of 2009 (O&M) -5- signatures on the agreement, is also erroneous for the simple reason that it was the appellant who had pleaded fraud and denied his signatures on the agreement. It was for him to establish that his signatures did not appear on the agreement or if they were appearing, under what circumstances they had been appended to it. No such effort was made by the appellant. In this view of the matter, his plea cannot be accepted. That apart, the respondent has also proved conclusively that he was ready and willing to perform his part of the agreement as he remained present in the office of the Sub-Registrar on 16.2.2004 and executed an affidavit which was also exhibited before the Court. The sum and total of the evidence before the Courts below was that the appellant had failed to prove the fraud as was alleged by him. In this view of the matter, there is no merit in the appeal and there being no substantial question of law arising for the determination of this Court, the appeal is dismissed. 20.2.2009 (MAHESH GROVER) JUDGE dss