RSA No.3102 of 2010 (O&M) - 1 - ******* IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3102 of 2010 (O&M) Date of decision:12.08.2010. Randhir Singh ...Appellant Versus Birbal Singh ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Rakesh Gupta, Advocate, for the appellant. ***** RAKESH KUMAR JAIN, J. Defendant is in second appeal against judgment and decree of the Courts below, whereby suit filed by the plaintiff for possession by way of specific performance has been decreed. The case of the plaintiff, in short, is that the defendant is owner in possession of land measuring 07 Kanals 18 Marlas, being 1.58/1393 share, out of total land measuring 69 Kanals 13 Marlas, situated within the revenue estate of village Songal, Tehsil and District Kaithal. He agreed to sell his aforesaid land to the plaintiff for a consideration of Rs.2,00,000/- and on receiving a sum of Rs.1,50,000/- as earnest money, the agreement to sell was executed on 09.05.2003 and sale deed was agreed to be executed RSA No.3102 of 2010 (O&M) - 2 - ******* on 15.06.2004 on receipt of balance sale consideration. Before the target date, defendant had further received a sum of Rs.30,000/- out of balance sale consideration of Rs.50,000/- on 12.12.2003, but despite notice, requests and readiness and willingness on the part of the plaintiff, the defendant failed to honour his commitment as he did not come present before the Sub Registrar on the date of execution of sale deed. Therefore, the present suit was filed by the plaintiff for specific performance and possession. On notice, the defendant entered appearance and in his defence, denied the agreement in toto. On the pleadings of the parties, issues were framed by the learned Trial Court on 17.02.2005 and 14.02.2007, which reads as under: - 1. Whether on 09.05.2003 the defendant had agreed to sell the land measuring 7 Kanal 18 Marla as detailed in para No.1 of the plaint for a consideration of Rs.2,00,000/- and he has received the earnest money to the tune of Rs.1,50,000/-, if so its effect?OPP. 1A. Whether the defendant had received further earnest money of Rs.30,000/- from the plaintiff vide order dated 12.12.2003, as alleged?OPP. 2. Whether the defendant had agreed to execute the sale deed on 15.06.2004, if so its effect?OPP. 3. Whether the plaintiff is still ready and RSA No.3102 of 2010 (O&M) - 3 - ******* willing to perform his part of contract?OPP. 4. Whether the suit is not maintainable in the present form?OPD. 5. Whether the plaintiff has no locus standi and or cause of action to file this suit?OPD. 6. Whether the plaintiff has concealed the true and material facts from the court, if so its effect? 7. Whether the plaintiff is estopped by his own act and conduct to file this suit?OPD. 8. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction, if so its effect?OPD. 9. Relief.” In order to prove his case, the plaintiff himself stepped in the witness box as his own witness as PW1 and examined Sukhbir Singh as PW2, Ram Kishan Gupta, Deed Writer as PW3, Dharam Pal Clerk to Shri V.K.Menon, Advocate as PW4 and also produced on record agreement dated 09.05.2003 as Ex.P1, receipt dated 09.05.2003 as Ex.P2, endorsement dated 12.12.2003 as Ex.P3, jamabandi as Ex.P4, envelope as Ex.P5, legal notice as Ex.P6, application moved to Sub Registrar as Ex.P7 and postal receipt as Mark 'X'. On the other hand, defendant examined himself as DW1, Bala wife of Randhir Singh as DW2 and relied upon documents Ex.D1 to Ex.D7 `J' form. The learned Trial Court further allowed the RSA No.3102 of 2010 (O&M) - 4 - ******* defendant to lead additional evidence in which he had exhibited documents Ex.DX, Ex.DY and Ex.DZ. The question involved in this case is as to whether the agreement Ex.P1 has been duly executed between the parties and if so, the plaintiff is entitled to a decree for specific performance of agreement to sell through process of the Court. Both the Courts below have found that the plaintiff has successfully proved the execution of the agreement to sell in his evidence. In this regard, the finding recorded by the learned First Appellate Court is as under: - “The above case of the plaintiff was fully substantiated by the documentary evidence Ex.P1 to Ex.P3. The execution of these documents by the defendant stood proved beyond doubt. The plaintiff himself deposed that the defendant had executed these documents. His testimony was further corroborated by the testimony of the attesting witness of this agreement Ex.P1 and receipt Ex.P2, Sukhbir Singh who appeared as PW2. In addition to that the plaintiff had also examined Ram Kishan Gupta, deed writer, as PW3. He also deposed that he had scribed these documents at the instance of the parties and had read over the contents thereof to the parties. He further deposed that the defendant, having admitted the correctness of the contents of these documents had RSA No.3102 of 2010 (O&M) - 5 - ******* thumb marked the same in his presence. This testimony further substantiated the claim of the plaintiff. Once the execution of these documents stood proved the onus shifted upon the defendant to establish on file that these documents were not bearing his signatures/thumb impressions. But except himself, who appeared as his own witness as DW1, he did not lead any other evidence to satisfy the court that the documents were not executed by him in this behalf or the same were not bearing his signatures/thumb impressions. In such a situation there is no reason to disbelieve the findings recorded by the lower court on these issues that the documents were executed by the defendant as such.” Aggrieved against the judgment and decree of the Courts below, the present appeal has been preferred by the defendant in which learned counsel for the appellant has submitted that the circumstances around the document Ex.P1 are suspicious because firstly, the prospective buyer/plaintiff after paying substantial amount of earnest money would not keep the date for execution of sale deed beyond the period of one year, secondly, the plaintiff has not specifically pleaded the additional payment of Rs.30,000/- vide endorsement on the agreement to sell and thirdly, PW1 has specifically admitted that Gulab Singh is working as Commission Agent. It is, thus, submitted that the defendant has RSA No.3102 of 2010 (O&M) - 6 - ******* been trapped by the plaintiff and has prepared a bogus document on the basis of which the decree has been granted by the Courts below. He further submitted that as per Section 20 of the Specific Relief Act, 1962, the Courts below should not have decreed the suit. He also relied upon a decision of the Supreme Court in the case of Tejram Vs. Patirambhau, AIR 1997 Supreme Court 2702. I have heard learned counsel for the appellant and perused the record with his able assistance. The question involved in this case is with regard to due execution of document Ex.P1 which has been proved by the plaintiff. He had himself appeared as PW1 and the attesting witness and Deed Writer had been examined as PW2 and PW3 respectively. It has come on record that contents of the document Ex.P1 were read over to the defendant and having admitted the correctness of the contents, he had thumb-marked it in the presence of the scribe. Therefore, even if the plaintiff has given some longer time to the defendant for execution of the sale deed, it would not be a sufficient reason to suspect the genuineness of the agreement to sell. Insofar as the judgment relied upon by learned counsel for the appellant in the case of Tejram Vs. Patirambhau (supra) is concerned, in that case, the respondent was a money vendor, who entered into an agreement for purchase of 11.76 acres of land for Rs.50,000/- and Rs.48,000/- was paid by him as part of the sale consideration and Rs.2,000/- was required to be paid RSA No.3102 of 2010 (O&M) - 7 - ******* within one year. The balance sale consideration of Rs.2,000/- was neither paid by him nor possession was taken, rather he kept quiet for 3 years and, thereafter, filed suit on the last date of limitation. In these circumstances, the document was looked at with suspicion and the discretionary power of the Court was exercised for return of the amount without interest. Thus, this judgment is distinguishable on facts. Looking from any angle, I do not find any merit in the present appeal as no substantial question of law is involved in this case as envisaged under Section 100 of the Code of Civil Procedure and as such the present appeal is dismissed. No costs. August 12, 2010 (RAKESH KUMAR JAIN) vinod* JUDGE