Regular Second Appeal No.2664 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2664 of 2009 (O&M) Date of order: 20.08.2009. Pawan Kumar @ Pawan Parkash . .... Appellant VERSUS Ram Narain Singh ....Respondent CORAM: HON'BLE MR.JUSTICE RAJIVE BHALLA Present: Mr.Vinod S.Bhardwaj, Advocate, for the appellant. Mr.Nand Lal Sharma, Advocate, for the respondent. RAJIVE BHALLA, J.(ORAL) The defendant-appellant No.1 challenges the judgment and decree dated 28.02.2009, passed by the Additional District Judge, Rohtak, setting aside the judgment and decree dated 31.07.2008, passed by the Additional Civil Judge (Sr.Division), Rohtak. The plaintiff/respondent filed a suit for specific performance of an agreement to sell dated 15.03.1999, by alleging that the appellant and his father agreed to sell land measuring 1725 Sq.Yds.situated in khasra no.3613/2 for a consideration of Rs.3,88,000/- after receiving a sum of Rs.1,25,000/- as earnest money. They agreed that the sale deed would be executed on 14.06.1999, after receipt of the balance consideration. On 14.06.1999, the appellant's father executed a registered sale deed in favour of Satbir Singh and Jasbir Singh, with respect to his share holding after receiving Rs.2,87,500/-, but the appellant did not come forward to Regular Second Appeal No.2664 of 2009 (O&M) -2- execute the sale deed with respect to his share. The respondent, therefore, sent a registered legal notice dated 17.08.1999, calling upon the appellant to execute the sale deed followed by a similar notice dated 07.08.2001. Despite these notices, the appellant did not come forward to execute the sale deed. In response to the suit, the appellant denied the execution of the agreement but admitted that his father had sold his share to the respondent. On the basis of the pleadings, the trial Court framed the following issues: - 1. Whether the defendants had entered into agreement with the plaintiff dated 15.03.1999 to sell the suit land to the plaintiff, if so to its effect? OPP 2. If issue no.1 is proved whether the plaintiff is entitled to specific performance in terms of agreement dated 15.03.1999 on the grounds alleged? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Relief. After considering the pleadings, the evidence adduced and the arguments addressed, the trial Court dismissed the suit by holding that the respondent has failed to prove that the appellant had agreed to sell his share of the suit land in favour of the respondent. Aggrieved by the aforementioned judgment and decree, the respondent filed an appeal. Vide judgment and decree dated 28.02.2009, the Additional District Judge, Rohtak, accepted the appeal, set aside the judgment and decree passed by the trial Court and decreed the suit for specific performance. Counsel for the appellant submits that the first appellate court Regular Second Appeal No.2664 of 2009 (O&M) -3- has gravely erred while holding that the appellant has executed the agreement dated 15.03.1999. The appellant and his brother Om Parkash signed in the margin of pages no.1 and 2, as they did not have any objection to their father selling his share in the joint property. The first appellate court has misconstrued and misread the document Ex.P2. In the absence of any credible evidence to prove the payment of earnest money to the appellant or the payment of Rs.30,000/- on 30.04.1999, the first appellate court could not have decreed the suit. It is further submitted that though the suit was filed within limitation, the first appellate court ignored the fact that the suit was filed two years after the agreement. It is submitted that in view of the errors committed by the court below, the following substantial questions of law arise for consideration: - “(i) Whether the plea of signing the agreement to sell as given no objection to the sale which is to be executed by the father of the appellant/defendant no.1 can be treated as also agreeing to sell of his own share in event of absence suggestion in cross-examination from the respondent/plaintiff? (ii)Whether the non-explanation of bifurcation of the earnest money, in favour of two sellers (alleged) would bring agreement to sell under a suspicious circumstances? (iii)Whether the non-explanation of the presence of the signature of another witness i.e. Om Parkash and its omission on the end of the document would bring the document under a suspicious circumstances? (iv)Whether the delay of two years in order to get his alleged right enforced through court would establishes only one conclusion that the alleged agreement to sell Regular Second Appeal No.2664 of 2009 (O&M) -4- is misutilised to capture the land? (v)Whether the absence of the signatures of the alleged sellers on the front two pages would doubt the credibility of the agreement to sell? (vi)Whether the absence of examination of scribe of the agreement to sell creates a shadow on the varsity of agreement to sell? (vii)Whether the non-explanation of non-proving the presence of the respondent/plaintiff in registrar office of the alleged receipt of legal notice would itself shatters the claim of the respondent/plaintiff.” Counsel for the respondent, submits that the first appellate court has not committed any error much less the errors urged by counsel for the appellant. The appellant has admittedly signed all the pages of the agreement and has even appended his signatures on the revenue stamp. The argument that the appellant has affixed his signatures as a no objection to his father executing a sale deed is neither pleaded nor proved. It is argued that as the suit was filed within limitation, the delay of two years is irrelevant and, therefore, the first appellate court rightly set aside the judgment and decree passed by the trial Court. I have heard counsel for the parties, perused the impugned judgment and decree and do not find any reason to hold that the impugned judgment suffers from an error as would raise any substantial questions of law much less the substantial questions of law framed by counsel for the appellant. The trial Court accepted the appellant's plea and held that he had not executed the agreement to sell as his signatures appear in the margin of first and second page of the agreement. The trial court also held that in the absence of any pleadings or evidence as to the payment of earnest Regular Second Appeal No.2664 of 2009 (O&M) -5- money, to the appellant, the agreement has not been proved. The first appellate court considered these findings and held that while deposing before the trial court, the appellant has admitted his signatures on all the pages of the agreement to sell, including his signatures on the revenue receipt. The first appellate court, concluded from the facts that the execution of the agreement by the appellant and the receipt of earnest money by him stood proved. The first appellate court rejected the appellant's plea that he had signed in token of a no objection to the sale deed being executed by his father. The appellant has admitted his signatures on all the pages of the agreement to sell and on the revenue stamp, affixed on the last page of the agreement. The fact that his signatures appear in the margin of page 1 and 2, of the agreement or that his brother, Om Parkash, did not sign the last page of the agreement are irrelevant as these facts do not raise an inference that the appellant appended his signatures in token of his no objection to his father executing the sale deed. The delay of two yeas, in the filing of the suit has been explained and even otherwise is not fatal to the suit as it was filed within limitation. The plea that the failure to examine the scribe of the agreement casts a doubt upon its execution is misconceived as the appellant admits his signatures. Furthermore, his father has admittedly executed a sale deed on the basis of this agreement. The last question apparently relaes to the notice of demand issued by the respondent and appellant's alleged absence from the office of the Registrar. The matter has been considered by the first appellate court while recording a finding that the respondent was ready and willing to perform his part of the agreement and, therefore, does not require any further consideration. In view of what has been stated hereinabove, as the impugned judgment and decree does not suffer from any error of law and as no Regular Second Appeal No.2664 of 2009 (O&M) -6- substantial questions of law arises for consideration, the appeal is dismissed with no order as to costs. August 20, 2009 (RAJIVE BHALLA) nt JUDGE