IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3757 of 2009 Date of Decision : December 10, 2009 Jaswant Kaur @ Bibo ....Appellant Versus Maghar Singh (now dead) through his legal representatives. ....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Kuldip Sanwal, Advocate for the appellant. Mr. O.P.Nagpal, Advocate for the respondents-Caveator. T.P.S. MANN, J. Suit filed by Maghar Singh plaintiff-respondent for specific performance was decreed by Additional Civil Judge (Senior Division), Nabha, on 21.4.2004. Aggrieved of the same, the defendant filed the first appeal, which was dismissed by Additional District Judge, Patiala, on 12.8.2009. She is now before this Court by way of a second appeal filed under Section 100 C.P.C. According to the plaintiff, the defendant agreed to sell her land and executed an agreement dated 16.11.1999 in that regard. Under the agreement, the land was to be sold for Rs.3,25,000/-. Out of the said amount, Rs.3,00,000/- was received as earnest money. The sale deed R.S.A. No. 3757 of 2009 -2- was to be executed by 16.12.1999. Since the defendant showed her inability to execute the sale deed on the stipulated date, so on 15.12.1999 and on her request the date for execution and registration of the sale deed was extended upto 16.5.2000. In this regard, a writing was made by the defendant on the backside of the agreement and she agreed to execute the sale deed on the extended date and deliver the possession of the suit land to the plaintiff. The plaintiff was always and ready and willing to perform his part of the agreement, but it was the defendant, who failed to perform her part of the agreement by not executing and getting registered the sale deed on the basis of the agreements. On 16.5.2000, the plaintiff remained present in the office of Sub Registrar, Nabha, but the defendant did not turn up. The plaintiff also got attested his affidavit qua his presence in the office of Sub Registrar. The plaintiff had been requesting the defendant many a time to admit his claim and execute the sale deed, but it was to no effect. Accordingly, suit for specific performance by the plaintiff. The defendant denied the execution of any such agreements dated 16.11.1999 and 15.12.1999 and also receipt of any amount as earnest money. As she did not execute any agreement to sell, the question of complying with any of its terms and conditions did not arise. The affidavit had been got prepared by the plaintiff in connivance with the attesting officer. It was also denied that any notice was received by the defendant. The agreements, as alleged by the plaintiff were false R.S.A. No. 3757 of 2009 -3- and fabricated documents, which were prepared in connivance with Document Writer and witnesses. Accordingly, it was prayed that the suit be dismissed with costs. Both the learned Courts below held that the defendant executed agreement to sell dated 16.11.1999 whereby she agreed to sell the suit land for Rs.3,25,000/- in favour of the plaintiff. The sale deed was to be executed by 16.12.1999 but on 15.12.1999 the date was got extended by the defendant to 16.5.2000. As the plaintiff was ready and willing to perform his part of the agreement, therefore, he was entitled for specific performance of the agreement. Accordingly, the suit was decreed by the trial Court and the first appeal filed by the defendant dismissed by the lower appellate Court. From the testimonies of PW1 Jagdish Rai, Document Writer, PW2 Gurmukh Singh, Registration Clerk, PW4 Devinder Kumar, Stamp Vendor and PW5 Hardev Singh, one of the attesting witnesses of the agreement Ex.P1 dated 15.11.1999 and extension agreement Ex.P1/A dated 15.12.1999, the plaintiff has been able to establish that the defendant had agreed to sell the suit property to him for an amount of Rs.3,25,000/- and out of the said amount Rs.3,00,000/- was received as earnest money. Pursuant to the agreement dated 15.11.1999, the sale deed was to be executed by 16.12.1999 but a day before that date, i.e. on 15.12.1999, on the asking of the defendant the stipulated date for executing the sale deed was extended upto 16.5.2000. R.S.A. No. 3757 of 2009 -4- Though the defendant denied having signed the agreement to sell and extension agreement, but PW7 Dr.R.V.Vashishta, Handwriting and Finger Print Expert vide his report Ex.P7 gave his opinion that the questioned signatures marked Q1 to Q6 have been signed by one and the same individual who had signed standard/specimen signatures marked S1 to S9. Regarding his readiness and willingness to perform his part of the agreement, the plaintiff relied upon the testimony of PW-3 Rajni Chhokra, Oath Commissioner, who deposed about the attestation of affidavits sworn in by the plaintiff on 16.5.2000 and 4.7.2000. On the other hand, the defendant apart from herself stepping into the witness box as DW1 did not examine any witness to convince the Court that she did not enter into agreement to sell dated 16.11.1999 and extension agreement dated 15.12.1999 with the plaintiff. In view of the above, learned Courts below were justified in holding that it was the defendant, who had agreed to sell the suit property to the plaintiff and though the plaintiff was always ready and willing to perform his part of the agreement, yet it was the defendant, who did not show any interest in performing her part of the contract. No material has been placed on record by the defendant to show that on account of the execution of agreement to sell, she was put under severe hardship and, therefore, instead of decreeing the suit for specific performance, a decree ought to have been passed for refund of the earnest money alongwith the damages and interest. R.S.A. No. 3757 of 2009 -5- The concurrent findings of facts arrived at by the Courts below being based upon correct appreciation of the evidence available on the file, it cannot be said that the same were either perverse or suffered from any illegality or infirmity. Therefore, they are not liable to be reversed and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. None of the substantial questions of law, as claimed by the appellant, arises for determination. Accordingly, the appeal is without any merit and, therefore, dismissed. ( T.P.S. MANN ) December 10, 2009 JUDGE ajay-1