IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3766 of 2006 Date of Decision : July 15, 2008 Kuldeep Kaur and others ....Appellants Versus Sanjeev Kumar and another .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. G.N. Malik, Advocate for the appellants. Mr. Arihant Jain, Advocate for the respondents. T.P.S. MANN, J. Suit for possession by way of specific performance of agreement to sell dated 18.9.1999 and writing dated 19.4.2000 filed by plaintiffs/respondents was decreed by learned Civil Judge (Junior Division), Malerkotla on 15.6.2004. The defendants challenged the aforementioned judgment and decree by filing an appeal, which was dismissed by learned District Judge, Sangrur vide judgment dated 29.7.2006. Aggrieved of the same, the defendants filed the present second appeal under Section 100 of the Code of Civil Procedure. Regular Second Appeal No. 3766 of 2006 -2- The case of the plaintiffs/respondents, as set up by them in their suit, was that Rupinder Singh, predecessor-in-interest of the defendants/ appellants, entered into an agreement on 18.9.1999 to sell his land measuring 10 Bighas 0 Biswas to the plaintiffs/respondents at the rate of Rs. 35,000/- per bigha. He received a sum of Rs. 2,50,000/- as earnest money. The sale deed was to be executed on 20.4.2000. However, on 19.4.2000, with the consent of the parties, the date for execution of the sale deed was extended to 20.10.2000 and writing to that effect was scribed by the Deed Writer at the back of the agreement dated 18.9.1999. In May, 2000, aforementioned Rupinder Singh, however, died. On 9.10.2000, the plaintiffs served a legal notice on the defendants reminding them of their obligation to execute the sale deed. On 20.10.2000, the plaintiffs remained present in the office of Sub Registrar, Malerkotla along with balance sale consideration but none of the defendants came present. Even, thereafter, the plaintiffs had been requesting the defendants many times but it had no effect on the defendants. Instead, the latter started threatening the plaintiffs that they would transfer the suit land to someone else. The defendants opposed the suit wherein they denied that Rupinder Singh entered into any agreement of sale or received Rs. 2,50,000/- as earnest money. The agreement in question was false, forged, fabricated and fictitious document. The plaintiffs were clever persons and were able to obtain the agreement in their favour by way of fraud and misrepresentation, therefore, the agreement was inadmissible. Regular Second Appeal No. 3766 of 2006 -3- On the pleadings of the parties, following issues were framed by the learned trial Court :- 1. Whether Rupinder Singh son of Beant Singh predecessor-in-interest of defendant executed an agreement to sell the suit property to the plaintiffs on 18.9.1999 and received Rs. 2,50,000/- as earnest amount ? OPP. 2. Whether the date of execution and registration of sale deed was subsequently extended to 20.10.2000 ? OPP. 3. Whether the plaintiffs always remained ready and willing to execute their part of agreement ? OPP. 4. Whether agreement to sell dated 18.9.1999 is false, forged and fabricated documents ? OPD. 5. Whether the plaintiffs have no cause of action to file the present suit ? OPD. 6. Relief. The dispute between the parties revolved around issues No. 1 to 4. After referring to the evidence led by the parties, learned trial Court held that Rupinder Singh executed the agreement in question on 18.9.1999 to sell the suit land and received Rs. 2,50,000/- as earnest money. The sale deed was to be executed on 20.4.2000. However, on 19.4.2000, the date was extended to 20.10.2000. The plaintiffs remained ready and willing to perform their part of the agreement. Holding that the defendants failed to Regular Second Appeal No. 3766 of 2006 -4- prove that the agreement was false, fabricated or a fictitious document, the suit for specific performance of the agreement was decreed. These findings were upheld in appeal by the first appellate Court. Learned counsel for the appellants submitted that Raj Kumar Sharma, uncle of Naresh Kumar-plaintiff is an advocate by profession and practising at Malerkotla. Besides, the agreement Ex. P.1 and writing Ex. P.2 were attested by two persons, who were also practising advocates at Malerkotla. All this established that the agreement Ex. P.1 was got executed by the plaintiffs by playing fraud and misrepresentation upon Rupinder Singh. Mere fact that relative of one of the plaintiffs is an advocate by profession is no ground to come to such a conclusion as is sought to be deduced by the defendants. Similar would be the situation regarding the attestation of the agreement Ex. P.1 and writing Ex.P.2 by two advocates of Malerkotla. Learned lower appellate Court after referring to the statements of two attesting witnesses held that during their cross-examination, the veracity of the witnesses could not be shaken. These witnesses stated that Rupinder Singh was known to them personally. However, no material was available on the record from which it could be inferred that they had any reason to depose falsely in favour of the plaintiffs or against the defendants. Regular Second Appeal No. 3766 of 2006 -5- It is then submitted that Rupinder Singh was not keeping good health during the days when he was said to have entered into an agreement to sell in favour of the plaintiffs. Learned counsel referred to the testimony of one of the witnesses, who while being cross-examined by the plaintiffs, stated that Rupinder Singh was not well six months before the stipulated date of execution of sale deed as initially agreed. No material has come on the file to say as to whether Rupinder Singh was suffering from any ailment which could impair his senses. A person may not be well on a given day, but on any other day he may be perfectly alright and having full control of his senses and knowing consequence of his acts. Mere fact that Rupinder Singh died in 2000 was also no ground to hold that on 18.9.1999, when he executed the agreement Ex.P.1 in favour of the plaintiffs/respondents, he was not in his proper senses. It is also submitted on behalf of the defendants/appellants that out of the entire consideration of Rs. 3,50,000/-, an amount of Rs. 2,50,000/- already stood paid as earnest money. Inspite of the same, possession of the suit land was not delivered to the plaintiffs. This is an indication of the fact that no such agreement to sell was executed by Rupinder Singh. In fact, he had only borrowed a sum of Rs. 2,50,000/- as loan which was to be returned by him later on. Regular Second Appeal No. 3766 of 2006 -6- The defendants have taken all possible pleas in the case. At one point of time, they claimed that no such agreement as Ex. P.1 was executed by Rupinder Singh in favour of the plaintiffs. On the other, they allege that the agreement Ex. P.1 was obtained by the plaintiffs after playing fraud and misrepresentation upon Rupinder Singh. Both these pleas are self- contradictory. It appears that defendants were not sure as to whether they were to take the first plea or the second. While taking up the second plea, they practically admitted that Rupinder Singh did execute the agreement Ex.P.1 in favour of the plaintiffs-respondents. However, in support of that plea they did not give any details of fraud or misrepresentation. It may not be out of place to mention here that on May 02, 2008, when notice of motion was issued, learned counsel for the appellants had stated that the appellants were willing to part with some of the land in question to the plaintiffs-respondents so as to amicably settle the matter. Further that the appellants were also willing to deposit a sum of Rs. Five Lacs with the executing Court to show their bonafides. Under these circumstances, notice of motion was issued and operation of the impugned decree was stayed subject to the appellant depositing Rs. Five Lacs with the executing Court. The said amount was duly deposited. After the completion of the service, the parties sought adjournment of the matter on two occasions so as to explore the chances of compromise. Today, when the matter came up for hearing, no commonly acceptable solution could be found out by the parties. The appellants expressed their willingness to part Regular Second Appeal No. 3766 of 2006 -7- with six bighas of land in favour of the plaintiffs/respondents, whereas the latter insisted that they should be given at least seven bighas. When the differences could not be ironed out, it was only then that learned counsel for the parties proceeded to argue the matter. The concurrent findings of facts arrived at by the learned lower Courts are based on proper appreciation of the evidence led by the parties. These findings do not suffer from any illegality or infirmity. The substantial questions of law, as framed by the appellants do not arise for consideration. The appeal is without any merit and, therefore, dismissed. The appellants are at liberty to withdraw the amount of Rs. 5,00,000/- deposited by them with the executing Court in pursuance of interim order passed on 2.5.2008. ( T.P.S. MANN ) July 15, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO