RSA No.3263 of 2009 (O&M) -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3263 of 2009 (O&M) Date of decision:30.09.2010. Kaur Singh ...Appellant Versus Devi Lal and anothe ...Respondents CORAM: HON’B LE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Atul Lakhanpal, Senior Advocate, with Mr. Arjun Lakhanpal, Advocate, for the appellant. Mr. V.K.Jain, Senior Advocate, with Mr. Parshant Vashisht, Advocate, for respondent No.1. ***** RAKESH KUMAR JAIN, J. Defendant No.1 is in second appeal against the judgment and decree of the Courts below by which the suit filed by the plaintiff for possession by way of specific performance of agreement to sell dated 14.05.2002, has been decreed. The plaintiff's case is that vide agreement to sell dated 14.05.2002, defendant No.1 had agreed to sell 11 Kanals 19 Marlas of land, being 1/4th share of total land measuring 47 Kanals 19 Marlas, situated at village Khabra Kalan, Tehsil and District Fatehabad, for a total sale consideration of `2,00,000, against which he had paid earnest money of `1,86,000 at the time of execution of agreement to sell and the date for execution and registration of sale deed was fixed as 13.05.2003. He has alleged that on 13.05.2003, he visited the house of defendant No.1 with balance sale consideration and requested him to execute and register the RSA No.3263 of 2009 (O&M) -2- ****** sale deed, but he did not give any satisfactory reply. On 14.05.2003, the plaintiff remained present in the office of the Joint Sub Registrar, Bhattu Kalan for the purpose of execution and registration of the sale deed, but defendant No.1 did not turn up, therefore, the plaintiff had got his presence marked before the said officer. It is also alleged that defendant No.1, in order to wriggle out of the agreement to sell, executed a release deed No.304 dated 27.05.2003 in respect of the land measuring 13 Kanals 07 Marlas which included some part of the suit property, in favour of defendant No.2. Thus, it was alleged that the release deed, being collusive, was illegal. Defendant No.1 filed a separate written statement in which he denied the execution of agreement to sell and also receipt of earnest money. He rather alleged that he was a habitual drunkard, who used to borrow some money from the plaintiff, and the plaintiff might have obtained his thumb impression on blank papers while he was in ebriated condition and forged the agreement to sell dated 14.05.2002. Defendant No.2 filed his separate written statement, in which identical pleas were taken as that of the written statement filed by defendant No.1. Plaintiff filed separate replications to both the written statements, in which he denied the contentions of the defendants and reiterated the stand taken by him in his plaint. Consequently, the parties went to trial on the issues framed by the Trial Court on 09.11.2004. Learned Courts below discussed issue Nos.1 to 3 together and held that the agreement to sell was duly executed and the release deed by defendant No.1 in favour of defendant No.2 was collusive and ineffective on the rights of the plaintiff. Aggrieved against the judgment and decree of the Courts below, present appeal has been filed, in which two questions have been raised in the grounds of appeal. First question is regarding misreading of the evidence by the Courts below and second question is with regard to the registration of un-stamped agreement to sell. Unfortunately, learned counsel for the appellant has failed to point out any misreading of the RSA No.3263 of 2009 (O&M) -3- ****** evidence by the Courts below nor could he point out any error of law in the registered agreement to sell, rather he has argued that the amount of consideration was never passed on, therefore, the agreement to sell could not have been relied upon by the Courts below. In reply, learned counsel for respondent No.1 has submitted that the question of payment of consideration has never been raised as a question of law in the grounds of appeal or before the Courts below, therefore, the appellant cannot take this plea for the first time before this Court. Moreover, the payment of earnest money is clearly mentioned in the registered agreement to sell which has been duly proved by the plaintiff before the Courts below. If the defendants were not paid amount of consideration, when they appeared before the Sub Registrar, they could have easily brought this fact to his notice. This plea cannot be taken for the first time in second appeal before this Court as it is a pure question of fact. No other point has been raised by learned counsel for the appellant. In view of above discussion, the present appeal is found totally without any merit and as such, the same is hereby dismissed. The parties shall bear their own costs. September 30, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE