R.S.A.No. 356 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 356 of 2009 (O&M) Date of decision: 19.11.2009 Pavittar Singh ......Appellant Versus Nirmal Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. B.D.Sharma, Advocate for Mr.Surinder Garg, Advocate, for the appellant. None for caveator-respondent No.1. **** SABINA, J. Plaintiff -respondent No.1 filed a suit for possession through specific performance, which was decreed by the Additional Civil Judge (Sr.Divn.), Faridkot vide judgment and decree dated 5.5.2008. In appeal filed by defendant No.1, the said judgment and decree were upheld by the District Judge, Faridkot vide judgment and decree dated 12.8.2008. Hence, the present appeal by defendant No.1. R.S.A.No. 356 of 2009 (O&M) 2 Brief facts of the case, as noticed by the trial Court in para Nos. 1 and 2 of its judgment, are as under:- “ The brief facts of the case as alleged by the plaintiff are that defendant agreed to sell the suit land to the plaintiff vide agreement dated 11.10.2005 @ Rs.6,25,000/- per acre and received Rs.50,000/- as earnest money. It is alleged that it was agreed that sale deed was to be executed on 10.4.2006 after receiving the remaining sale consideration and defendant also promised to deliver the possession of the suit land on that date. It is alleged that plaintiff had been ready and willing to perform his part of agreement but defendant failed to execute the sale deed. It is further alleged that on the date, when the sale deed was to be executed, plaintiff went to the office of Sub Registrar and duly sworn in an affidavit but the defendant did not turn. The cause of action accrued to the plaintiff a week back when the defendant finally refused to admit the lawful claim of the plaintiff. The property in dispute is situated within the local limits of Civil Court at Faridkot and as such, the Civil Court at Faridkot has got the territorial jurisdiction to entertain and try the present suit. The value of the suit for the purpose of court fee and jurisdiction is assessed as Rs. 3,12,500/- and the R.S.A.No. 356 of 2009 (O&M) 3 requisite court fee is affixed. A decree for possession through specific performance is prayed for. 2. Notice of the suit was given to the defendants, who came present and filed written statement taking preliminary objections that sit is not maintainable and that plaintiff has no locus standi to file the present suit. On merits, the allegations made in the plaint are denied being wrong. It is alleged that defendant never entered into an agreement as alleged by the plaintiff nor received any amount as earnest money. It is alleged that the alleged agreement is forged and fabricated and is a result of fraud and the same is not binding upon the defendants. It is alleged that no agreement as alleged by the plaintiff was ever executed by the defendant. All other allegations were denied. Prayer for the dismissal of the suit is made.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled to possession by way of specific performance of the agreement, as alleged? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff is not entitled to file the present suit? OPD R.S.A.No. 356 of 2009 (O&M) 4 4. Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 11.10.2005. In order to prove the due execution of the agreement to sell, plaintiff himself appeared in the witness box as PW-3 and examined PW-2 Suba Singh, attesting witness of the agreement to sell. The agreement to sell in question is Ex.P-2. The execution of the same was duly proved by the plaintiff as well as the attesting witness of the agreement to sell. The defendant, however, could not establish the plea of fraud taken by him. In order to establish that the plaintiff was always ready and willing to perform his part of the contract, plaintiff proved on record his affidavit Ex.P-10 as per which the plaintiff had remained present in the office of Sub Registrar on the date fixed for execution of the sale deed but the defendant had failed to appear. There is no force in the argument raised by learned counsel for the appellant that there is no occasion for the defendant to execute an agreement to sell in favour of the plaintiff as a criminal case under Section 307 of the Indian Penal Code etc. was registered against the appellant and his relatives at the instance of the son of the plaintiff. A compromise was effected between the parties and consequently, the appellant and other accused were acquitted in the criminal case. However, this does not lead to the inference that the agreement to R.S.A.No. 356 of 2009 (O&M) 5 sell in question was a result of forgery or fabrication. Both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the plaintiff was ready and willing to perform his part of the contract. The said finding of fact arrived at by the Courts below cannot be interfered with in this appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 19, 2009 anita