R.S.A.No. 3859 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3859 of 2010 (O&M) Date of decision: 28.3.2011 Surender Pal ......Appellant Versus Usha Rani .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Harkesh Manuja, Advocate, for the appellant. **** SABINA, J. Plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 5.3.2003. The case of the plaintiff, in brief, was that the defendant was owner in possession of the house in dispute after its purchase vide sale deed dated 17.9.1990. The defendant had agreed to sell the house in dispute to the plaintiff vide agreement to sell dated 5.3.2003 for a consideration of ` 50,000/-. ` 35,000/- were paid towards earnest money by the plaintiff to the defendant at the time of execution of the agreement to sell in question. ` 15,000/- were to be paid on or before 5.1.2004 i.e. the date fixed for getting the sale deed executed and registered. On 5.4.2003, the plaintiff paid another sum of ` 7,000/- in cash to the defendant and a receipt was issued by the defendant in this regard. The plaintiff had remained present in the R.S.A.No. 3859 of 2010 (O&M) 2 office of Sub Registrar on 6.1.2004 for execution and registration of the sale deed as 5.1.2004 was a holiday. The defendant, however, failed to appear before the Sub Registrar to perform his part of the contract. Defendant, in his written statement, denied the execution of the agreement to sell in question. The other contentions in the plaint were also denied. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendant had executed an agreement to sell dated 5.3.2003 in favour of the plaintiff to sell suit property for a consideration of ` 50,000/- and also received a total sum of ` 42,000/- as earnest money, as alleged? OPP. 2. Whether the plaintiff had been and is still willing and ready to perform her part of the agreement as alleged ? OPP 3. Whether the suit of the plaintiff is not maintainable ? OPD 4.Whether the suit is barred by limitation ? OPD 5. Whether the suit of the plaintiff is not properly valued for the purposes of court fee and jurisdiction ? OPD 6. Whether the plaintiff has no cause of action to file the present suit? OPD 7. Whether the plaintiff has concealed the true and material facts from the court, if so, its effect? OPD R.S.A.No. 3859 of 2010 (O&M) 3 8. Whether the defendant is entitled for special costs under Section 35-A of CPC? OPD 9. Relief.” The trial Court decreed the suit of the plaintiff vide judgment and decree dated 2.4.2010. Aggrieved by the same, defendant preferred an appeal and the same was dismissed vide judgment and decree dated 26.7.2010 passed by the Additional District Judge. Hence, the present appeal by the defendant. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the agreement to sell in question was duly executed by the defendant in favour of the plaintiff and further that the plaintiff was always ready and willing to perform his part of the contract. In order to prove his case, plaintiff examined PW-2 Krishan Kumar, one of the attesting witnesses to the agreement to sell. The plaintiff also examined Ram Dhan Babbar as PW-4, who compared the thumb impressions and signatures of the defendant on the agreement to sell in question with his standard thumb impressions and signatures and gave his opinion that the same were by one and the same person. The defendant while appearing in the witness box, took up the plea that his signatures and thumb impressions had been obtained by the plaintiff on some blank papers. The agreement to sell in question was a false and fabricated document. The agreement in question stood duly proved by the witnesses examined by the plaintiff and the R.S.A.No. 3859 of 2010 (O&M) 4 defendant had failed to successfully rebut the said evidence. The defendant failed to establish that his signatures and thumb impressions were obtained on some blank papers by the plaintiff. There is no force in the argument raised by the learned counsel for the appellant that the suit for specific performance was not maintainable as there was no such mention in the agreement to sell in question. A perusal of the agreement to sell in question, shown during the course of arguments, reveals that it was agreed that in case of non compliance of the agreement to sell in question, party No.1-defendant would be liable to pay costs of litigation. This shows that the intention of the parties was to sell and purchase the property in dispute. The plaintiff had established on record that he was ready and willing to perform his part of the contract. In this regard, the plaintiff remained present in the office of Sub Registrar on 6.1.2004 as 5.1.2004, stipulated date for execution of the sale deed, was a holiday. The plaintiff proved on record his affidavit Ex.P-2 in this regard. Since the intention of the parties was to sell and purchase the property in dispute, the plaintiff was capable to file the suit for specific performance of agreement to sell in question as the defendant had failed to perform his part of the contract. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE March 28, 2011 anita