R.S.A. No. 5963 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 5963 of 2003 Date of Decision: 11.08.2009 Risali wife of Hardeva daughter of Badami, resident of village Hajwana, Tehsil and District Kaithal. ... Appellant Versus 1. Kartar Singh son of Sh. Kapoor Singh (since deceased), being represented by LRs:- (i) Smt. Ramde, daughter; (ii) Smt. Parshni Devi, daughter (iii) Gurdev Singh, son; (iv) Nafe Singh, son; (v) Ramesh Singh, son; all r/o village Hajwana, Tehsil and District Kaithal. 2. Balwant Singh son of Mian Singh, r/o village Hajwana, Tehsil and District Kaithal. 3. Hardeva son of Sh. Sheoli, r/o village Hajwana, Tehsil and District Kaithal. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. S.C. Kapoor, Senior Advocate, with Mr. Ashish Kapoor, Advocate, for the appellant. Mr. J.V. Yadav, Advocate, for respondents No. 1 and 2. Service of respondent No. 3 dispensed with. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, R.S.A. No. 5963 of 2003 2 dated 08.08.01, rendered by the Court of Civil Judge (Senior Division), Kaithal, vide which, it decreed the suit of the plaintiffs, and the judgement and decree dated 05.12.01, rendered by the Court of Additional District Judge (I), Kaithal, vide which, it dismissed the appeal. 2. The facts, in brief, are that Risali, defendant No. 1, was the owner in possession of the land, as fully detailed in para No. 1 (a) and 1 (b) of the plaint and Hardeva, defendant No. 2, was the owner, in possession of the land, as fully detailed in para No. 2 (a) and 2 (b) of the plaint. Both the defendants agreed to sell their agricultural land, in favour of Kartar Singh (deceased) predecessor-in-interest of defendants No. 1 (i) to 1 (v), vide agreement to sell dated 19.09.90, for a valuable consideration of Rs. 3 lacs. Rs. 1,60,000/-, were paid as earnest money, at the time of execution of the agreement to sell. The rest of the amount was agreed to be paid, by Kartar Singh, to the defendants, on the date of execution and registration of the sale deed on or before 24.02.91. It was stated that Kartar Singh always remained ready and willing to perform his own part of the contract. It was further stated that defendant No. 2, executed and got registered the sale deed, dated 20.02.91, in favour of Kartar Singh, in respect of the land mentioned in para No. 2(a) and 2(b) of the plaint, and, thus, performed his own part of the contract. It was further stated that defendant No. 1, was time and again requested to get the sale deed executed and registered, in respect of the land, in her possession, but she refused to accede to the same. It was further stated that, as per the agreement to sell, Kartar Singh, in order to get the sale deed executed and registered by defendant No. 1, went to the deed-writer, but she did not come present. It was further stated that on 25.02.91 (24.02.91 being Sunday), Kartar Singh, then went to the Office of R.S.A. No. 5963 of 2003 3 the Sub Registrar, Fatehpur Pundir, under whose jurisdiction, the land, in dispute fell, but defendant No. 1, did not come present there also, and failed to perform her own part of the contract. It was further stated that earlier a suit for permanent injunction bearing No. 1309/99 dated 15.12.90, titled as 'Kartar Singh etc. Vs. Smt. Risali etc.', was filed by Kartar Singh, in the Court of the then Sub Judge 1st Class, Kaithal, but the same was withdrawn by him, as the suit for specific performance of the contract was filed. Defendant No. 1, was many a time, asked to perform her own part of the contract, but to no avail. On her final refusal, left with no other alternative, a suit for possession by way of specific performance, was filed. 3. Defendant No. 1, put in appearance, and filed separate written statement, wherein she took up various objections, and contested the suit. It was pleaded by defendant No. 1, that the suit was not maintainable, in the present form. It was further pleaded that the plaintiffs had no locus-standi to file the suit. It was further pleaded that the suit was barred under Order 2, Rule 2 of the Code of Civil Procedure. It was stated that the plaintiffs, were not ready with the balance sale consideration and had not tendered the amount of sale consideration to the defendants on the stipulated date. It was further stated that the plaintiffs had not given the description of the land properly and correctly in the plaint. It was further stated that Sanand Takseem, in respect of the land, in dispute, was pending. It was further stated that defendant No. 1, was the owner in possession of the land detailed in para No. 1 (a) and 1(b) of the plaint alongwith some other land, comprising khewat No. 62. It was further stated that defendant No. 1, never entered into an agreement to sell as alleged by the plaintiffs. If any, agreement to sell existed, it was the result of fraud and misrepresentation R.S.A. No. 5963 of 2003 4 played upon her by the latter, in collusion with defendant No. 2 alongwith one Pritam Singh son of Tek Singh, resident of village Hajwana, a near relation of the plaintiffs. It was further stated that defendant No. 2 got issued the search warrant under Section 97 of the Code of Criminal Procedure, with a view to take the custody of defendant No. 1, from the Court of Sub Divisional Magistrate, Narwana, on 04.02.91,but she did not agree to accompany him, vide her statement dated 09.02.91. It was further stated that actually defendant No. 2, wanted to get the sale executed and registered illegally and fraudulently from defendant No. 1 after taking her into custody. It was further stated that the plaintiffs and defendant No. 2, were in collusion to force her to execute the sale deed on the basis of the aforesaid fabricated document, purported to be the agreement to sell. The remaining averments, were denied, being wrong. 4. Defendant No. 2, in his written statement, admitted the claim of the plaintiffs. 5. On the pleadings of the parties, the following issues, were struck:- (i) Whether the defendants entered into an agreement dated 19.09.90 to sell the land to the plaintiffs as alleged and received an amount of Rs. 1,60,000/- earnest money? OPP (ii) Whether the defendants have failed to perform their part of the contract? OPP (iii) Whether the plaintiffs have always been ready and willing and still ready to perform their part of contract? OPP (iv) Whether the suit is time barred under Order 2, Rule 2 of the Code of Civil Procedure? OPD R.S.A. No. 5963 of 2003 5 (v) Whether the suit is barred under Order 23, Rule 3, of the Code of Civil Procedure? OPD (vi) Relief. 6. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, decreed the suit of the plaintiffs. 7. Feeling aggrieved, an appeal was preferred, by defendant No. 1/appellant, which was dismissed, by the Court of Additional District Judge (I), Kaithal, vide judgement and decree dated 05.12.01. 8. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by defendant No. 1/appellant. 9. I have heard the Counsel for the parties, and have gone through the evidence, on record, carefully. 9-A. The following substantial questions of law arise, in this appeal, for the determination of this Court:- (i) Whether the Courts below, recorded perverse finding that a legal and valid agreement to sell dated 19.09.90, was executed by defendants No. 1 and 2, in favour of the plaintiffs, in respect of the land, in dispute? (ii) Whether the Courts below recorded perverse findings that the plaintiffs were always ready and willing to perform their own part of the contract? (iii) Whether the Courts below recorded perverse finding, that the suit was not barred by Order 2, Rule 2 of the Code of Civil Procedure? 10. The Counsel for the appellant, submitted that the Courts below, by misreading and misappreciation of evidence, recorded a perverse finding that the agreement to sell was executed by defendants No. 1 and 2, in favour R.S.A. No. 5963 of 2003 6 of the plaintiffs. He further submitted that mere thumb marking of a document, did not mean that the execution thereof was proved. He further submitted that no earnest money was ever paid to the defendants, by the plaintiffs, at the time of the alleged execution of the agreement to sell. He further submitted that some impostor was produced, in place of Risali, appellant, and her thumb impression was obtained on the agreement to sell. He further submitted that Risali, appellant, was having strained relations with her husband Hardeva, and, as such, it could not be imagined that she would thumb mark the agreement to sell alongwith him. He further submitted that even Hardeva, had filed a petition under Section 97 of the Code of Criminal Procedure, on 04.12.91, against the appellant, and, in these circumstances, Risali, was not expected to thumb mark the agreement to sell. He further submitted that even the suit was barred under the provisions of Order 2, Rule 2 of the Code of Civil Procedure, as the cause of action accrued to the plaintiff for specific performance, when he filed a suit for permanent injunction on 14.12.90. He further submitted that the plaintiffs were not ready and willing to perform their part of the contract. He further submitted that the Courts below, were, thus, wrong in decreeing the suit of the plaintiffs. He further submitted that the judgements and decrees, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondents submitted that the agreement to sell P1, dated 19.09.90, was executed by the appellant and Hardeva, her husband, in respect of the land in dispute, in their sound disposing mind. He further submitted that the agreement to sell bore the thumb impression of the appellant. He further submitted that the receipt regarding the payment of earnest money P2, was also executed by them. He R.S.A. No. 5963 of 2003 7 further submitted that no impostor, in place of Risali, appellant, was produced, at the time of execution of the agreement to sell. He further submitted that the earlier suit filed by the plaintiff, was for permanent injunction, as by that time cause of action to file a suit for specific performance had not arisen. He further submitted that the sale deed was to be executed and got registered, as per the terms and conditions of the agreement to sell, on or before 24.01.91. He further submitted that the suit for specific performance was not barred under the provisions of Order 2, Rule 2 of the Code of Civil Procedure. He further submitted that filing of a petition, under Section 97 of the Code of Criminal Procedure, by the husband of Risali, appellant, against her, was an act subsequent to the execution of the agreement to sell, and, as such, had no effect on the validity and legality of the same. He further submitted that the concurrent findings of fact, recorded by the Courts below, leading to the decreeing of the suit, could not be interfered with, by this Court, in the Regular Second Appeal. He further submitted that the judgements and decrees, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived R.S.A. No. 5963 of 2003 8 at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. The Courts below, while relying upon the evidence of Bhagwandass, PW1, scribe of the agreement to sell P1, and receipt P2, regarding the payment of earnest money, Sadhu Ram, PW4, Ex-Sarpanch and an attesting witness of the agreement to sell P1, and receipt P2, and Kartar Singh, one of the plaintiffs, who appeared as PW5, rightly came to the conclusion that the agreement to sell P1 and receipt P2, were executed by the defendants and the same were thumb marked by them after admitting and understanding the contents thereof to be correct. No doubt, Risali, one of the defendants, when appeared as PW3, stated that she did not thumb mark the agreement to sell P1 and receipt P2, nor did she receive any earnest money, at the time the alleged execution thereof. She further stated that fraud was played upon her. It may be stated here, that in case Risali, appellant, had not thumb marked the agreement to sell, she could get compared her questioned thumb impressions on the agreement to sell P1, and the receipt P2, with her specimen thumb impressions by summoning a Handwriting and Finger Prints Expert. She, however, did not do so. Even no evidence with regard to the mode and manner in which the fraud was allegedly played, upon her, and her husband at the time of execution of the agreement to sell was produced. Under these circumstances, it could be said that the Courts below, were right, in coming to the conclusion, that no impostor in place of Risali, R.S.A. No. 5963 of 2003 9 was produced, at the time of execution of the agreement to sell, nor any fraud was played upon her at that time. Even Hardeva, the other executant of the agreement to sell P1, did not appear in the witness box to deny the execution of the agreement to sell. The Courts below, thus, were right, in holding that a legal and valid agreement to sell P1, was executed by Risali and Hardeva, her husband, after receipt of a sum of Rs. 1,60,000/-, as earnest money, vide receipt P2. 13. From the evidence of Krishan Lal, PW2, Subhash Chand Gupta, PW3, and Kartar Singh, one of the plaintiffs, PW5, the Courts below, also rightly came to the conclusion that the plaintiffs were ever ready and willing to perform their own part of the contract and the defendants breached the terms thereof. Had it been the intention of the defendants to execute the sale deed in pursuance of the agreement to sell P1, in favour of the plaintiffs, Risali, would not have disputed the execution of the same. Once the Courts below, came to the conclusion that a legal and valid agreement to sell was executed by the defendants, in favour of the plaintiffs and that the latter remained ever ready and willing to perform their own part of the contract, the suit for specific performance was rightly decreed. 14. The next question, that arises for consideration, is, as to whether the suit was barred under the provisions of Order 2, Rule 2 of the Code of Civil Procedure, or not. The earlier suit for permanent injunction was filed on 25.10.90. The date for the execution and registration of the sale deed, had not yet arrived by that time. The date for execution and registration of the sale deed was fixed as 24.02.91. In the plaint of the previous suit, filed on 25.10.90, copy whereof, is P10, no doubt in para No. 6, it was stated by the plaintiff that cause of action accrued to her on R.S.A. No. 5963 of 2003 10 15.10.90, the date of final refusal of the defendants and continued arising daily. In para No. 10 of the plaint, copy whereof, is P10, it was stated by the plaintiffs that the cause of action accrued to them on 13.12.90, the date of final refusal of the defendants. The fact remains that the earlier suit was for permanent injunction, which was filed by the plaintiffs, when the defendants, threatened to alienate the property. That suit was dismissed as withdrawn on 11.03.91. As stated above, by that time, cause of action to file the suit for specific performance had not arisen. The cause of action, for filing the suit for specific performance, arose on 24.02.91, the date, fixed for execution and registration of the sale deed, and thereafter, on final refusal of the defendants to perform their own part of the contract. Under these circumstances, it could be very well said that the cause of action on the basis whereof the suit for permanent injunction was filed by the plaintiffs, was totally different and distinct from the cause of action, which accrued to them for filing a suit for specific performance. As such, the suit was not barred under Order 2, Rule 2 of the Code of Civil Procedure. Similar principle of law was laid down in Sohan Singh (Deceased by L.R.'s) and others Vs. Fauja Singh and others, AIR 1997(P&H), 136, and Harbans Singh and others Vs. Mohinder Singh and others, AIR 2003(P&H), 294. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference by this Court. The judgements and decrees of the Courts below, are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. The substantial questions of law, depicted above, are answered against the R.S.A. No. 5963 of 2003 11 appellant. 15. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed, with costs. 11.08.2009 (SHAM SUNDER) Amodh JUDGE