REGULAR SECOND APPEAL No.4070 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4070 OF 2010 DATE OF DECISION: FEBRUARY 4, 2011 Mahender Singh Lakha .... Appellant Versus Krishan Kumar Jain & another .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Parvesh Saini, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) CM No.1210-C of 2011 The application is allowed and annexed bank guarantee is taken on record. CM No.12131-C of 2011 For reasons mentioned in the application, which is accompanied by affidavit, delay of 117 days in filing the appeal is condoned. CM No.12135-C of 2011 Allowed as prayed for. Main Case Defendant Mahender Singh Lakha having failed in both the courts below has filed the instant second appeal. Respondents/plaintiffs Krishan Kumar Jain and his wife Seema Jain filed suit against defendant-appellant for recovery of Rs.1,50,000/- alleging that the plaintiffs sold house No.955, Sector 13-P, Hisar to the REGULAR SECOND APPEAL No.4070 OF 2010 -2- defendant. At the time of execution of sale deed, it was agreed that in case Haryana Urban Development Authority (HUDA) refunds any amount on account of reduction in the enhanced compensation, the plaintiffs shall be entitled to the same. Defendant also furnished affidavit in this regard. Subsequently HUDA refunded Rs.1,43,453/- out of enhanced amount of the price of the plot pursuant to reduction of compensation for the acquired land ordered by this Court. Defendant received the aforesaid amount from HUDA as he had become owner in possession of the house. However, defendant did not pay the said amount to the plaintiffs as per agreement between the parties. Notice dated 08.12.2005 served by plaintiffs on defendant also did not bear any fruit. Accordingly, plaintiffs filed suit for recovery of Rs.1,50,000/- i.e. Rs.1,43,453/- as principal amount and Rs.6,547/- as interest thereon since 22.09.2005 till filing of the suit. The defendant while admitting that he purchased the aforesaid house from the plaintiffs, broadly denied the other plaint allegations. The plaintiff alleged that plaintiffs had entered into agreements dated 25.02.2001 and 31.12.2003 to sell the house to the defendants and accordingly the plaintiffs executed sale deed dated 18.03.2004 of the said house in favour of defendant. Affidavit of defendant set up by the plaintiff is dated 09.04.2005. Plaintiffs were left with no right, title or interest in the house after sale deed dated 18.03.2004 and, therefore, there was no occasion for the defendant to furnish the alleged affidavit dated 09.04.2005 regarding refund of enhanced price by HUDA to the plaintiffs. Defendant denied the aforesaid affidavit and pleaded that the same is result of fraud etc. It was alleged that plaintiffs had obtained signatures of defendant on various blank papers/stamp papers to complete formalities of sale of the house and the affidavit has been forged on REGULAR SECOND APPEAL No.4070 OF 2010 -3- one of the aforesaid stamp papers. Various other pleas were also raised. Learned Civil Judge (Junior Division), Hisar vide judgment and decree dated 16.07.2009 decreed the plaintiff's suit for recovery of principal amount of Rs.1,43,453/- with interest thereon @ 6% per annum w.e.f. 22.09.2005 till recovery. First appeal preferred by the defendant stands dismissed by learned Additional District Judge, Hisar vide judgment and decree dated 16.03.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The defendant has admitted his signatures on the affidavit in question. The said affidavit categorically states that plaintiffs shall be entitled to receive the amount that may be refunded by HUDA. Plaintiffs have proved the said affidavit by leading cogent evidence. The affidavit was attested by Naib Tehsildar as Executive Magistrate. Reader of the Naib Tehsildar has been examined as witness and he proved the said affidavit. Plaintiff No.1 himself also stepped into the witness box and stated according to his version. On the other hand, the defendant himself appeared in the witness box as DW-1 and broadly stated according to his own version. Affidavit has been attested by Executive Magistrate. Signatures of defendant on the affidavit stand admitted. It cannot be said that Executive Magistrate attested the affidavit without the deponent being present before him. It is, therefore, manifest that self serving oral statement of the defendant is not sufficient to prove the alleged fraud. It is also worth mentioning that defendant is vendee and plaintiffs are vendors of the house. Registered sale deed for sale of the house was REGULAR SECOND APPEAL No.4070 OF 2010 -4- executed by plaintiffs in favour of the defendant. Consequently, there was no occasion for the defendant to have signed on blank papers and blank stamp papers to complete the formalities of the sale deed. It could be the other way round. Signatures of the plaintiffs could possibly have been obtained to complete the sale deed, but there was no occasion for the defendant-vendee to affix his signatures on blank papers or blank stamp papers to complete the formalities of the sale deed. Thus the plea of fraud set up by the defendant on the aforesaid averments is intrinsically and inherently improbable and unreliable. Learned counsel for the appellant contended that the stamp vendor who sold the stamp paper for the affidavit has not been examined as witness by the plaintiffs. The argument does not help the defendant-appellant because nothing prevented the defendant-appellant from examining the stamp vendor as his own witness. Moreover, the stamp paper for the affidavit was purchased by the defendant himself and not by the plaintiffs. It is also worth mentioning that defendant-appellant is highly educated person and was Class-I Gazetted officer at the relevant time. It would also depict that the Executive Magistrate would not have attested the affidavit of the defendant without the defendant himself being present and affirming the affidavit in the presence of Executive Magistrate. It also reasonably rules out that the defendant affixed his signatures on blank stamp paper. Learned counsel for the appellant also contended that there was no occasion for the defendant-appellant to affirm the affidavit more than a year after the sale deed. The contention cannot be accepted. Affirmation of affidavit more than a year after the sale deed would depict that till then neither REGULAR SECOND APPEAL No.4070 OF 2010 -5- party was dishonest. As per settlement between the parties, defendant affirmed the affidavit undertaking that the amount refunded by HUDA shall be paid to the plaintiffs. The fact that the affidavit was affirmed more than a year after the sale deed would rather go in favour of the plaintiffs and would depict that plaintiffs are entitled to the refunded amount. Learned counsel for the appellant also contended that affidavit cannot prevail over the contents of the sale deed and in the event of contradiction, sale deed would prevail over the affidavit. This contention is also of no help to the appellant, because learned counsel for the appellant failed to point out any contradiction between the affidavit and the sale deed. On the contrary, learned counsel for the appellant conceded that sale deed is silent regarding entitlement of plaintiffs or defendant to the amount that may be refunded by HUDA. Consequently, there is no contradiction in the sale deed vis-a-vis the contents of the affidavit. Recital in the sale deed that henceforth defendant has become absolute owner in possession of the house along with all rights, title and interest as referred to by counsel for the appellant, does not go against the contents of the affidavit according to which plaintiffs are entitled to the amount that may be refunded by HUDA. It is undisputed that HUDA has refunded Rs.1,43,453/- which has been received by the defendant. This fact has also been proved by examining official from HUDA as PW-3. Consequently, plaintiffs have been rightly held entitled to the said amount from the appellant-defendant with interest at modest rate of 6% per annum only. Concurrent finding recorded by both the courts below in favour of the plaintiffs and against the defendant is based on proper appreciation of evidence. The said finding is not shown to be perverse or illegal in any REGULAR SECOND APPEAL No.4070 OF 2010 -6- manner so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is found to be lacking any merit and is accordingly, dismissed in limine. Bank guarantee furnished by defendant-appellant in this court be sent to trial court so that the same may be utilized for execution of the decree if need arises for the same. (L. N. MITTAL) JUDGE 4th February, 2011 'raj'