IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.5013 of 2010 (O&M) Date of Decision:21.12.2010 Kuldeep Parkash .....Appellant Vs. Jagraj Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. Preetwinder Singh Dhaliwal, Advocate for the appellant. **** RAKESH KUMAR GARG, J. (Oral) This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for possession of the suit land by way of specific performance of the agreement to sell dated 31.1.2006 was dismissed. Shorn of unnecessary details, it is suffice to say that while dismissing the suit, the Courts below, on the basis of evidence on record, have recorded a concurrent finding that the appellant was not ready and willing to perform his part of the contract on the stipulated date of execution of the agreement in question. It is useful to refer to the observations of the lower appellate court in this regard, which read as follows:- “The execution of agreement to sell Ex.P1 dated 31.01.2006 and receipt of earnest amount of Rs.2 lacs by defendants/ respondent has been admitted in the pleadings as well as in the R.S.A. No.5013 of 2010 (O&M) -2- evidence. It is also no denial of the fact that sale deed was to be executed on or before 30.07.2006 after receipt of balance sale consideration. Now to be seen is whether plaintiff was ready and willing to perform his part of the contract on that date or not, for that reference can be made to his statement when appeared as PW2. In the pleadings i.e. in plaint, plaintiff/ appellant has no where pleaded that he remained present in the office of Sub Registrar on 30.07.06 along with balance sale consideration, but defendant/ respondent has failed to put in appearance, rather it is his case that he requested the defendant/ respondent to execute sale deed as per terms and condition of agreement to sell and thereafter got served a legal notice. When he appeared as PW2, he in his examination-in-chief no where stated that he was ready and willing to perform his part of contract on 30.07.06 and he remained present in the office of Sub Registrar on that date. This fact is also missing from the notice served by the plaintiff- appellant upon the defendant/ respondent, copy of which has been placed on the file Ex.P3. But in the cross examination, plaintiff/ appellant has stated that he went to the office of Sub Registrar on 30.07.06 and he asked the Officer to get his presence marked, but Sub Registrar told him that there are no provisions for getting presence marked. However, he admitted that on 30.07.06, he had not moved an application for attestation of the same in the office of Sub Registrar, but voluntarily stated that he is still ready and willing to perform his part of contract. He has admitted that he has not R.S.A. No.5013 of 2010 (O&M) -3- moved any complaint against said Officer for not getting his presence marked on 30.07.06. He had denied this suggestion that on 30.07.06, he never visited the office of Sub Registrar and he has also not denied this fact that on 30.07.06, it was holiday and to prove this fact that 30.07.06 was holiday, the learned counsel for the defendant/ respondent has placed on record photo copy of Judicial case diary showing 30.07.06 as Sunday, Judicial notice of which can be taken. The aforesaid findings of the lower appellate court are based on appreciation of evidence. No material evidence has been pointed out before this Court to controvert the aforesaid findings as recorded. In this view of the matter, I find no merit in this appeal. No substantial question of law arises. Dismissed. December 21, 2010 ( RAKESH KUMAR GARG ) renu JUDGE