R. S. A. No. 4593 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4593 of 2009 Date of Decision : July 06, 2010 Jeet Singh .... Appellant Vs. Lal Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sanjiv Gupta, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Jeet Singh defendant, having remained unsuccessful in both the courts below, has approached this Court by way of instant second appeal. Suit was filed by Lal Singh respondent against the appellant for possession of suit land by way of specific performance of agreement dated 11.06.1999. The plaintiff alleged that the defendant agreed to sell suit land measuring 18 bighas @ Rs.32,000/- per bigha to the plaintiff for total sale price of Rs.5,76,000/- and received Rs.4,50,000/- as earnest money and executed the impugned agreement dated 11.06.1999. Sale deed was to be executed on or before 15.06.2000. There being holidays from 15.06.2000 to 18.06.2000, the plaintiff went to the office of Sub Registrar on 19.06.2000 R. S. A. No. 4593 of 2009 2 to get the sale deed executed as per agreement, but the defendant did not turn up. Notice dated 22.01.2001 sent by the plaintiff to the defendant by registered post also failed to evoke any response. The defendant denied the plaint allegations and pleaded that he never entered into the impugned agreement to sell the suit land to the plaintiff. The alleged agreement, if any, is result of fraud and misrepresentation. The suit has been filed in connivance with Bir Bhan Goyal, Commission Agents, who might have procured thumb impressions of the defendant because the defendant used to sell his agricultural produce at the shop of Bir Bhan Goyal. Various other pleas were also raised. Learned Civil Judge (Junior Division), Malerkotla, vide judgment and decree dated 31.07.2003, decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Sangrur, vide judgment and decree dated 29.09.2009. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. At the outset, it has to be noticed that appellant has also moved C. M. No. 13783-C of 2009 for additional evidence. The appellant wants to produce entries from register of deed writer Annexure-A to Annexure-H to depict that there were several similar agreements between the parties, which were never acted upon. The application cannot be accepted because R. S. A. No. 4593 of 2009 3 the proposed additional evidence is completely beyond the pleadings. No such plea has been taken in the written statement that there were other agreements to sell between the parties and the same were not acted upon. There is also no reason why the proposed additional evidence could not be produced before the trial court at appropriate stage. The application for additional evidence is completely misconceived and without substance and is accordingly dismissed. Learned counsel for the appellant contended that the defendant never agreed to sell the suit land to the plaintiff and in fact, there was money transaction between the defendant and the Commission Agent Bir Bhan Goyal. The defendant has pleaded that Bir Bhan Goyal might have obtained thumb impressions of the defendant. However, the defendant has not explained as to why he affixed his thumb impressions at the asking of Bir Bhan Goyal, when defendant has not even pleaded to have borrowed any amount even from Bir Bhan Goyal. Consequently, there was no occasion for the defendant to affix his thumb impressions at the asking of Bir Bhan Goyal. On the other hand, plaintiff has led cogent evidence to prove his case. The plaintiff, besides himself entering into witness-box, has examined scribe as well as one attesting witness of the agreement. The plaintiff has also examined finger-print expert, who has opined that thumb impressions on the disputed agreement have been affixed by the defendant. R. S. A. No. 4593 of 2009 4 The said evidence has been found to be cogent and sufficient by both the courts below to prove plaintiff's case. The defendant also examined finger print expert, who stated that agreement is forged and fabricated. However, plaintiff's evidence proved that the agreement is not forged and fabricated. Its due execution has been fully proved. No nexus of plaintiff with Bir Bhan Goyal – Commission Agent has either been pleaded or established. Consequently, the contention raised by counsel for the appellant cannot be accepted. Learned counsel for the appellant also contended that specific performance of the agreement would cause undue hardship to the defendant- appellant. This contention is liable to rejection being completely beyond pleadings. There is also no material on record to substantiate this contention. Consequently, judgment of Hon'ble Apex Court in the case of Bal Krishna and another vs. Bhagwan Das (Dead) and others reported as 2008 (3) Civil Court Cases 153, cited by counsel for the appellant, has no applicability to the facts of the instant case. For the reasons recorded herein above, I find no merit in the instant second appeal. Both the courts below have appreciated the evidence on record and have arrived at concurrent finding in favour of the plaintiff. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant R. S. A. No. 4593 of 2009 5 second appeal. Accordingly, the appeal is dismissed in limine. July 06, 2010 ( L. N. MITTAL ) monika JUDGE