Regular Second Appeal No. 2059 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2059 of 2011(O&M) Date of decision : May 10, 2011 Ram Kala ....Appellant versus Wakil Chand ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Baljinder Singh, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 5750.C of 2011 Allowed as prayed for. RSA No. 2059 of 2011 Ram Kala defendant having lost in both the courts below has filed the instant second appeal. Respondent-plaintiff Wakil Chand filed suit against defendant- appellant for possession of the suit land measuring 7 kanals 19 marlas by specific performance of the agreement to sell dated 9.5.2002 alleging that the defendant agreed to sell the suit land to the plaintiff for Rs 1,29,188/- and received Rs 50,000/- as earnest money and executed aforesaid Regular Second Appeal No. 2059 of 2011(O&M) -2- agreement. Sale deed was to be executed upto 20.5.2003. Accordingly, on 13.4.2003, the plaintiff approached the defendant for execution of the sale deed on or before the stipulated date. The defendant assured to execute the sale deed on 19.5.2003. Accordingly, plaintiff remained present in the office of Sub Registrar on 19.5.2003 but the defendant did not turn up. The plaintiff again approached the defendant who promised to execute the sale deed on 21.5.2003. Accordingly, the plaintiff again remained present in the office of Sub Registrar on 21.5.2003 but the defendant did not come present. The plaintiff also served notice dated 10.5.2005 on the defendant to perform his part of the contract but the defendant did not do so although the plaintiff always remained ready and willing to perform his part of the contract. The defendant broadly denied the plaint allegations. The defendant denied having agreed to sell the suit land to the plaintiff or having executed the impugned agreement or having received any earnest money. The defendant alleged that market price of the suit land is about Rs 7 lacs per acre. The defendant also pleaded that the plaintiff and his brother and their father were running joint business of commission agent. Defendant used to sell his crop through them. They did not settle the account of the defendant. They also obtained thumb impressions of the defendant on blank stamp papers on the pretext of claiming bonus for the crop sold by the defendant but no bonus was paid by them to the defendant. On the contrary, the plaintiff and his brother and father also kept on obtaining thumb impressions of the defendant on various stamp papers and in registers Regular Second Appeal No. 2059 of 2011(O&M) -3- of deed writers. The same might have been misused by the plaintiff. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Moonak vide judgment and decree dated 17.9.2010 decreed the plaintiff's suit. First appeal preferred by defendant stands dismissed by learned Additional District Judge, Sangrur vide judgment and decree dated 10.2.2011. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff himself appeared in the witness box as PW1 and examined Ram Niwas PW2 and Rasala PW3, both attesting witnesses of the agreement. All of them have broadly stated according to plaintiff's version. On the other hand, there is solitary self serving bald statement of defendant as DW1 according to his version. The defendant also put Rasala Ram in the witness box as DW2 who tendered his affidavit of examination-in-chief but he was not produced for cross-examination and therefore, his statement cannot be read in evidence. Even otherwise, Rasala could not be examined by the defendant as witness because Rasala had already appeared as witness of the plaintiff and had been cross-examined by the defendant. Plaintiff has led cogent evidence as his testimony is corroborated by both attesting witnesses of the agreement. In these circumstances, bald and oral self serving statement of the defendant is not sufficient to rebut the plaintiff's cogent evidence. In addition to the aforesaid, defendant's statement is also not Regular Second Appeal No. 2059 of 2011(O&M) -4- reliable. In the written statement he pleaded that the plaintiff and his brother and father had been running joint business as commission agent but in the witness box the defendant stated that he did not know as to what business was being carried on by the plaintiff. The defendant even went to the extent of stating that he did not know the plaintiff at all although the plaintiff was of his village. Thus, the statement of the defendant is completely unreliable. The defendant has also not produced any evidence to depict that he had been selling his crop at the shop of plaintiff and his brother and father. Thus, the entire version of the defendant stands unsubstantiated. On the contrary, the defendant has admitted his thumb impressions not only on the impugned agreement but also in the register of the deed writer against entry of the agreement by pleading that the plaintiff and his father and brother had been obtaining his thumb impressions on blank stamp papers and in the registers of the deed writer. However, due execution of the impugned agreement by the defendant has been proved by the statements of plaintiff and both the attesting witnesses of the impugned agreement. Learned counsel for the appellant contended that the plaintiff did not attend the office of Sub Registrar on 20.5.2003, the date stipulated in the agreement for execution of sale deed. However, on the basis of this contention, it cannot be said that plaintiff was not ready and willing to perform his part of the contract. On the other hand, it is the case of the plaintiff that the defendant himself had assured to execute the sale deed on 19.5.2003 and accordingly the plaintiff went to the office of Sub Registrar Regular Second Appeal No. 2059 of 2011(O&M) -5- on 19.5.2003 to get the sale deed executed in terms of the agreement but the defendant did not turn up. It is also the plaintiff's case that he again approached the defendant who promised to execute the sale deed on 21.5.2003 and accordingly, the plaintiff again remained present in the office of Sub Registrar on 21.5.2003 but the defendant did not turn up. Consequently, it cannot be said that the plaintiff was not ready and willing to perform his part of the contract. Moreover, time is not essence of the contract of sale of immovable property unless so made expressly or impliedly by the parties. In the instant case, however, the parties neither expressly nor impliedly made the time to be essence of the contract nor it is even the case of the parties. In addition to it, the defendant even denied the execution of the agreement and it is not his case that he was ever ready or willing to perform his part of the contract. It is, thus, apparent that plaintiff always remained ready and willing to perform his part of the contract whereas the defendant committed breach of the agreement. It is also worth mentioning that defendant alleged that market price of the suit land was about Rs 7 lacs per acre but the defendant failed to substantiate his said version. No sale deed was produced in evidence in support of this plea. For the reasons aforesaid, no ground is made out for interference with concurrent finding recorded by both the courts below in favour of the plaintiff-respondent. Said finding is based on appreciation of evidence and is supported by cogent evidence led by plaintiff whereas the defendant's evidence is completely unworthy of credence. The said finding Regular Second Appeal No. 2059 of 2011(O&M) -6- cannot be said to be perverse or illegal nor it is based on misreading or misappreciation of evidence so as to warrant interference in exercise of second appellate jurisdiction. No question of law much less substantial question of law arises for adjudication in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine. ( L.N. Mittal ) May 10, 2011 Judge 'dalbir'