IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2353 of 2011 (O & M) Date of Decision: 25.05.2011 Sukhdev Raj ……Appellant Versus Rajinder Malhotra …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Alka Chatrath, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.6501-C of 2011 Allowed as prayed for. Main appeal. Sukhdev Raj-defendant, having failed in both the Courts below, has filed the instant second appeal. Respondent-plaintiff-Rajinder Malhotra filed suit against defendant-apellnat for possession of the suit property (double storeyed shop with veranda and stairs) by specific performance of the agreement to sell dated 26.06.1997. The plaintiff alleged that the defendant agreed to sell the suit property to the plaintiff for RSA No.2353 of 2011 (O & M) - 2 – Rs.1,50,000/- and received Rs.50000/- as earnest money and executed impugned agreement dated 26.06.1997. Sale deed was to be executed upto 31.12.1998. Accordingly, on 31.12.1998, the plaintiff appeared before the Sub-Registrar to get the sale deed executed in terms of the agreement, but the defendant did not turn up and committed breach of the agreement. The plaintiff also served notice dated 22.01.1999 on the defendant, but still the defendant did not perform his part of the contract, necessitating the filing of the suit. Defendant broadly denied the plaint averments. The defendant denied having agreed to sell the suit property to the plaintiff or having received any earnest money or having executed the impugned agreement. It was pleaded that market value of the suit property was not less than 6 to 7 lacs rupees. Learned Civil Judge (Junior Division), Batala vide judgment and decree dated 31.01.2008 decreed the plaintiff’s suit. First appeal preferred by defendant has been dismissed by learned Additional District Judge (Ad hoc), Fast Track Court, Gurdaspur vide judgment and decree dated 07.03.2011. Feeling aggrieved, defendant has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. RSA No.2353 of 2011 (O & M) - 3 – The plaintiff has led overwhelming evidence to prove his case. The plaintiff, besides himself stepping into the witness box as PW-6, examined Talwinder Singh, Deed Writer PW-2 (scribe of the agreement) and Mohinder Partap PW-3 and Tilak Raj PW-4 both attesting witnesses of the agreement. All of them have broadly stated according to plaintiff’s version. On the other hand, defendant himself stepped into the witness box as DW-1 and examined Joginder Singh DW-2. Both of them broadly stated according to defendant’s version. Execution of the agreement has been fully proved by cogent evidence led by the plaintiff. Plaintiff’s testimony in this regard is corroborated by the statements of scribe of the agreement and both attesting witnesses of the agreement. Their statements could not be impeached in cross-examination. On the other hand, defendant while appearing in the witness box, did not dare to deny his signatures on the impugned agreement. He rather gave evasive reply by stating that on account of weak eye sight, he could not say if the impugned agreement was bearing his signatures or not. It is surprising that the defendant was affixing his signatures on written statement, affidavit etc., but he expressed ignorance about his signatures on the impugned agreement. His eye sight was also not so weak that he could not RSA No.2353 of 2011 (O & M) - 4 – identify his signatures on the impugned agreement. He was cross- examined regarding his eye sight and he could correctly tell the colour of walls of the Court room as well as different colours of the coats put on by counsel for the parties. Thus the defendant evasively gave reply to the crucial question regarding his signatures on the impugned agreement. Nevertheless, the fact remains that he did not dare to deny his signatures on the impugned agreement. On the contrary, he impliedly admitted his signatures on the impugned agreement by deposing that Tilak Raj PW-4 was his biggest enemy as he obtained his signature by misrpresentation. Learned counsel for the appellant vehemently contended that PW-3 Mohinder Partap has stated that the earnest money was not paid in his presence. However, other witnesses have stated about the payment of the earnest money and the same is also recited in the impugned agreement. Mohinder Partap PW-3 may not have noticed when the money exchanged hands. However, the fact remains that the earnest money was paid at the time of agreement as stated by all other witnesses and also recited in the agreement. Learned counsel for the appellant also contended that Tilak Raj PW-4 is relative of the plaintiff. However, statement of Tilak Raj cannot be discarded merely on this ground. It was natural for the plaintiff to cite his relative or friend as witness of the agreement so RSA No.2353 of 2011 (O & M) - 5 – that the witness may not resile in case of need. Testimony of Tilak Raj cannot be discarded merely because he is relative of plaintiff. Moreover, Mohinder Partap other attesting witness of the agreement and Talwinder Singh PW-2 scribe of the agreement are independent witnesses. Learned counsel for the appellant contended that readiness and willingness of the plaintiff to perform his part of the contract is not proved. The contention cannot be accepted. The plaintiff remained present in the office of Sub-Registrar on 31.12.1998, the date stipulated in the agreement for execution of sale deed, to get the sale deed executed in terms of the agreement, but admittedly the defendant did not turn up. The plaintiff then also served notice dated 22.01.1999 on the defendant to do the needful, but the defendant failed to do so. Then the plaintiff filed suit on 05.11.1999. Consequently, it cannot be said that the plaintiff was not ready and willing to perform his part of the contract. On the other hand, it is not the case of the defendant that he was himself ever ready and willing to perform his part of the contract. On the contrary, the defendant even denied the execution of the agreement. There is ample evidence led by the plaintiff to depict his readiness and willingness to perform his part of the contract. RSA No.2353 of 2011 (O & M) - 6 – Learned counsel for the appellant vehemently contended that the plaintiff has not deposited the balance sale consideration in the trial Court within two months of the passing of the decree by the trial Court or by the lower appellate Court. The contention is completely misconceived. Firstly, there is no material on record to substantiate this contention. Secondly, the trial Court had not directed the plaintiff to deposit the balance sale consideration in the trial Court. On the contrary, the defendant was directed to execute the sale deed in terms of the agreement within two months of the decree of the trial Court. Learned counsel for the appellant also contended that Mohinder Partap PW-3 stated that market value of the property in the locality is Rs.2,00,000/- per marla and, therefore, market value of the suit property which is 2 marlas would come to Rs.4,00,000/- and, therefore, the impugned agreement for consideration of Rs.1,50,000/- is vitiated. The contention is misconceived and untenable. Firstly, the agreement cannot be discarded merely on the ground of inadequate consideration. Secondly, Mohinder Partap was examined almost seven years after the execution of the impugned agreement and consequently, market price stated by the witness at the time of his testimony would have no relevance to the sale consideration set up in the agreement executed seven years ago. Thirdly, area of the disputed shop is not two marlas because RSA No.2353 of 2011 (O & M) - 7 – according to counsel for the appellant, the shop measures 45 feet x 11 feet which would come to 55 squre yards only whereas 1 marla is a little over 30 square yards. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the Courts below in favour of the plaintiff-respondent is fully justified by the overwhelming evidence on record. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not call for interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for adjudication in the instant second appeal. Accordingly the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 25.05.2011. A.kaundal