-1- Regular Second Appeal No. 797 of 2011 (O&M). IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: February 22, 2011. Regular Second Appeal No. 797 of 2011 (O&M). Fauja Singh ... Appellant VERSUS Gurmej Singh and another ... Respondents CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. H.S. Bhullar, Advocate, for the appellant. Mr.G.S. Gill, Advocate, for the caveators/respondents. -.- MOHINDER PAL, J. The defendant-appellant is in second appeal aggrieved against the judgments and decrees passed by both the Courts -2- Regular Second Appeal No. 797 of 2011 (O&M). below, whereby the suit filed by the plaintiffs-respondents for possession of the suit land by way of specific performance of the agreement of sale dated 25.2.2000 was decreed. Defendant-appellant Fauja Singh, being owner in possession of the suit land measuring 27 Kanals 10 Marlas, detailed in the head note of the plaint, entered into an agreement of sale of the said land in favour of plaintiffs-respondents Gurmej Singh and Teja Singh vide agreement of sale dated 25.2.2000. As per the agreement of sale, the rate of the suit land was fixed at Rs.9,99,000/- per acre and defendant-appellant received Rs.5,00,000/- by way of Bank Draft bearing No.633792 drawn at Canara Bank, Gurdaspur, as advance. The balance sale consideration was agreed to be paid by the plaintiffs to the defendant on 30.12.2000 at the time of execution and registration of the sale deed. It was further agreed between the parties that if the plaintiffs would resile from the terms and conditions of the agreement of sale, the amount of advance paid by them to the defendant would stand forfeited and if the defendant failed to perform his part of the contract, he would pay Rs.10,00,000/- to the plaintiffs. The description of the suit land i.e khasra numbers etc. in the agreement of sale was wrongly mentioned and on that account a note to this effect was given in the agreement of sale to rectify that mistake. The said note on the agreement of sale was duly singed by the parties to the agreement. As per case of the plaintiffs, they have always been ready and willing to perform their -3- Regular Second Appeal No. 797 of 2011 (O&M). part of the agreement. As the defendant showed his helplessness in executing the sale deed on 30.12.2000, the stipulated date for execution of the sale deed was extended to 15.2.2001 from 30.12.2000 by mutual consent. An endorsement to this effect on the back side of the agreement of sale was duly singed by the parties and attested by the attesting witnesses. It was further averred in the plaint that as plaintiff No.2 Teja Singh was to leave for Germany, he had authorized his brother plaintiff No.1 Gurmej Singh to get the sale deed executed in terms of the agreement of sale in question by document of authorization dated 10.1.2001. It is further case of the plaintiffs that on 15.2.2001, plaintiff No.1 remained present in the office of the Sub Registrar, Gurdaspur, with balance amount of consideration to be paid by the plaintiffs to the defendant, but the defendant failed to turn up for performing his part of the agreement. Plaintiff No.1 got his presence marked before the Sub Registrar on 15.2.2001. The defendant failed to perform his part of the agreement despite legal notice having been issued to him by the plaintiffs through their counsel. Hence this suit was filed by the plaintiffs through plaintiff No.1 Gurmej Singh on behalf of himself and on behalf of his brother Teja Singh, who had authorized plaintiff No.1 to file the instant suite vide power of attorney dated 25.7.2001 as he (Teja Singh) had to go abroad again. The defendant-appellant, in the written statement filed by him, admitted having executed the agreement in question, -4- Regular Second Appeal No. 797 of 2011 (O&M). but he stated that he had executed the said agreement in favour of plaintiff No.2 and not in favour of plaintiff No.1 and he (plaintiff No.1) never put his signatures on the agreement. He further pleaded that the note regarding rectification of the description of the land in suit on the agreement and regarding the name of plaintiff No.1, if any, on the agreement was written after the execution of the agreement and without the consent of the defendant. The trial Court, after framing issues arising out of the pleadings of the parties and recording their evidence decreed the suit filed by the plaintiffs-respondents. The appeal preferred by the defendant-appellant against the judgment and decree passed by the trial Court was dismissed by the lower appellate Court. The findings recorded by both the Courts below are the findings of fact. It could not be pointed out by the learned counsel for the appellant that such findings are based on misreading of evidence or that material evidence has not been taken into consideration. To prove the agreement of sale, the plaintiff Gurmej Singh appeared in the witness box as P.W.1 and examined Surjit Singh (P.W.2), Kewal krishan Dhawan (P.W.3) and Charan Singh (P.W.4). Surjit Singh (P.W.2) is the Deed Writer who had scribed the agreement of sale in question and Kewal krishan Dhawan (P.W.3) and Charan Singh (P.W.4) are the attesting witnesses of the agreement. Defendant-appellant Fauja Singh, who appeared in the witness box as D.W.1, admitted -5- Regular Second Appeal No. 797 of 2011 (O&M). having received the earnest money of Rs.5,00,000/- at the time of execution of the agreement by way of Demand Draft. However, the defendant was not ready and willing to perform his part of the agreement as, during the pendency of the instant suit, he had sold the entire property in favour of her unmarried daughter. The plaintiffs-respondents placed on record certified copies of sale deeds Exhibits P.5 to P.7. It is clear that the defendant had sold the entire property in favour of his unmarried daughter in order to deprive the rights of the plaintiffs. Once the execution of agreement of sale in respect of the suit land is admitted by the defendant and receipt of earnest money of Rs.5,00,000/- is also admitted by him (defendant-appellant), it does not matter whether execution of the said agreement is pursued by plaintiff Gurmej Singh or plaintiff Teja Singh. Both plaintiffs Gurmej Singh and Teja Singh are real brothers. In order to show that the plaintiffs were always ready and willing to perform their part of the agreement and had enough amount in their possession for payment of the balance sale consideration to the defendant, they placed on record statements of bank account of plaintiff Teja Singh i.e Exhibits P.W.5/A and P.W.5/B, which were proved by O.P. Malik (P.W.5). The statements of bank account show that plaintiff Teja Singh had an amount of Rs.18,81,962/- in his account as on 5.1.2001 and he had an amount of Rs.90/- lacs as on 2.8.2004 in his account. During the course of arguments, learned counsel for the defendant-appellant laid much stress on the -6- Regular Second Appeal No. 797 of 2011 (O&M). point that defendant Fauja Singh had executed the agreement with plaintiff Teja Singh and the name of plaintiff Gurmej Singh appeared on the agreement later on. According to the learned counsel for the defendant, the agreement (Exhibit P.1) having been tampered with by the plaintiffs, it was not enforceable against the defendant. However, I do not find any force in this argument of the learned counsel. It has rightly been held by the lower appellate Court that the appearance of the name of Gurmej Singh on the agreement does not in any way change the nature of the contract. Had the land agreed to be sold by way of the agreement (Exhibit P.1) been increased or decreased or had the amount been increased or reduced, it would have been a material alteration which could have affected the contract (Exhibit P.1) between the parties. Since there was no such alteration, the appellant was found to honour the agreement. In the case of Ram Khilona and others Vs. Sardar and others, AIR 2002 Supreme Court 2548, it was held by the Hon'ble Supreme Court that if the vendees subsequently introduced in original agreement two independent persons as marginal witnesses, such alteration does not bring about change in validity or enforceability of agreement; that it is not a material alteration and that it does not render agreement ab initio void. In view of the above, I do not find any patent illegality or irregularity in the findings of fact recorded by both the Courts below, which may give rise to any substantial question of -7- Regular Second Appeal No. 797 of 2011 (O&M). law in the present appeal. Hence, the present appeal is dismissed. There shall be no order as to costs. ( MOHINDER PAL) JUDGE February 22, 2011. ak