-1- Regular Second Appeal No. 532 of 2005 (O&M). IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: February 09, 2011. Regular Second Appeal No. 532 of 2005 (O&M). Om Parkash ... Appellant VERSUS Jatinder Kumar ... Respondent CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. R.S. Rangpuri, Advocate, for the appellant. Mr. Sushil Bhardwaj, Advocate, for the respondent. -.- MOHINDER PAL, J. Appellant-defendant No.1 Om Parkash is in second appeal aggrieved against the judgments and decrees passed by the Courts below, whereby the suit filed by the plaintiff- respondent against the defendant-appellant and others for possession of the house in dispute by way of specific performance -2- Regular Second Appeal No. 532 of 2005 (O&M). of contract dated 25.7.1996 executed between the appellant- defendant No.1 on behalf of himself and on behalf of defendants Nos. 2 to 4 (not parties before this Court) and the respondent-plaintiff relating to the said house and further for declaration that the sale deed executed by appellant- defendant No.1 and defendants Nos. 2 to 4 in favour defendants Nos.5 and 6 (not parties before this Court) relating to the said house on 7.8.1996 is null and void with consequential relief of permanent injunction restraining defendants Nos. 5 and 6 from further selling the said house was decreed to the extent that the plaintiff-respondent was held entitled to recover Rs.40,000/- with interest at the rate of 12 per cent per annum from the date of institution of the suit till the realization of the decretal amount. I have heard Mr. R.S. Rangpuri, Advocate, appearing for the appellant and Mr. Sushil Bhardwaj, Advocate, appearing for the respondent and have gone through the records of the case. The case of the plaintiff-respondent is that appellant- defendant No.1 on behalf of himself and on behalf of his brothers i.e defendants Nos.2 to 4, who had inherited the house in dispute on the death of their father, had executed agreement to sell dated 25.7.1996 in favour of the plaintiff-respondent to sell the said house for a consideration of Rs.80,000/-; that Rs.40,000/- were paid by the plaintiff-respondent to appellant- defendant No.1 as earnest money; that in the family settlement, the house in dispute had come to the share of appellant- -3- Regular Second Appeal No. 532 of 2005 (O&M). defendant No.1; and that the plaintiff-respondent was in possession of the house in dispute. The further claim of the plaintiff-respondent was that the sale deed executed by defendants Nos. 1 to 4 in favour of defendants Nos.5 and 6 in respect of the said house for a consideration of Rs.42,000/- was the result of fraud played by the defendants with the plaintiff. So far as the execution of the agreement by appellant-defendant No.1 in favour of the plaintiff- respondent is concerned, the same stands proved on record from the statement of its attesting witness namely Santokh Singh (P.W.2). Receipt of Rs.40,000/- by appellant-defendant No.1 from the plaintiff-respondent also stands proved on record. Mere denial of signatures by the appellant-defendant No.1 on the agreement in favour of the plaintiff-respondent and the receipt was not enough to deny its execution. However, the plaintiff failed to prove that defendants Nos.2 to 4, brothers of appellant- defendant No.1, had authorized appellant-defendant No.1 to sell the house in dispute to the plaintiff-respondent or that the house in dispute had fallen to the share of defendant No.1 in the family settlement. Defendants Nos. 2 to 4 denied any family settlement having taken place between the brothers. The plaintiff placed on record two letters written by defendant No.1 to the plaintiff mentioning therein that he (appellant-defendant No.1) was negotiating for family settlement with his three brothers i.e defendants Nos. 2 to 4. Obviously, a mere mention of the possibility of family settlement by the appellant-defendant in his letters written to the plaintiff did not prove that a family -4- Regular Second Appeal No. 532 of 2005 (O&M). settlement had taken place between defendants Nos. 1 to 4 and that too authorizing appellant-defendant No.1 to sell the property in dispute to the plaintiff on behalf of all the three brothers. Thus, the appellant-defendant No.1 was neither himself exclusive owner of the disputed house nor he was authorized by his brothers to sell the house in dispute to the plaintiff. Defendants Nos. 2 to 4 could not be said to be responsible for the execution of the agreement of sale by appellant-defendant No.1 in favour of the plaintiff and the same was not binding upon them. In this view of the matter, defendants Nos. 5 and 6, who had purchased the house in dispute from appellant-defendant No.1 and defendants Nos. 2 to 4 for a valuable consideration, could not, in any way, be said to have committed any fraud with the plaintiff or defendants. Defendants Nos. 5 and 6 were put in actual physical possession by defendants Nos. 1 to 4 after having received the sale consideration and executing a sale deed in favour of defendants Nos. 5 and 6 on 7.8.1996. As such, the claim of the plaintiff-respondent that he was in possession of the disputed house has rightly been disbelieved by both the Courts below. The plaintiff-respondent has rightly been held entitled by both the Courts below to the refund of earnest money of Rs.40,000/- along with interest from the appellant-defendant. The findings recorded by both the Courts below are the findings of fact. It could not be pointed out by the learned counsel for the defendant-appellant that such findings are based on misreading of evidence or that material evidence has not been taken into -5- Regular Second Appeal No. 532 of 2005 (O&M). consideration. Under the circumstances, I do not find any patent illegality or irregularity in the findings recorded by the Courts below, which may give rise to any substantial question of law in the present appeal. Resultantly, this appeal is hereby dismissed being without any merit. ( MOHINDER PAL ) February 09, 2011. JUDGE ak