IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CM No. 3350-C of 2009 CM No. 3352-C of 2009 and RSA No. 1148 of 2009 Date of decision: 17.3.2009 Ajay Kumar and others … Appellants. Versus Ranjit Singh and another … Respondents Present: Mr. Kuldip Sanwal, Advocate, for the applicant-appellants. … ARVIND KUMAR, J: CM No. 3350-C of 2009: For the reasons mentioned in the application, the delay of 71 days in refiling the appeal is condoned. CM stands disposed of accordingly. CM No. 3352-C of 2009: C.M. is allowed. Legal representatives of defendant- deceased, Dharam Pal, as mentioned in para 3 of the application are ordered to be brought on record as appellants. RSA No. 1148 of 2009: Appellants before this Court are the legal representatives of defendant who lost concurrently before the Courts below whereby the suit of the plaintiffs for specific performance of agreement to sell dated 30.8.2002 and also for possession, has been decreed. Plaintiffs brought the present suit stating therein that the defendant, Dharam Pal, owner of the suit property, vide agreement to sell dated 30.8.2002, agreed to sell to them the said property for a total consideration of Rs.4,60,000/-. Out of the said amount, defendant received Rs.4,50,000/- as earnest money while the balance amount of Rs.10,000/- was to be paid at the time of execution and registration of sale-deed on or before 1.3.2003. The entire expenses for execution of the sale-deed were to be borne by the plaintiffs and it was agreed that in the event of failure of defendant to get the sale-deed executed in favour of the plaintiffs, the plaintiffs could get the sale-deed executed through Court. As per the case RSA No. 1148 of 2009 -2- of the plaintiffs, they always remained ready and willing to perform their part of the contract. However, on the date of registration and execution of sale-deed, the defendant did not turn up in the office of the Sub Registrar. They requested the defendant many times to execute the sale-deed but he did not do so. Upon notice of the suit, defendant filed written statement whereby he denied to have executed an agreement to sell the suit property to the plaintiffs vide agreement to sell dated 30.8.2002 and further denied to have received Rs.4,50,000/- as earnest money; rather he pleaded that the said agreement to sell is a forged and fabricated document. Trial Court upon appreciation of evidence adduced by the parties, vide judgment and decree dated 9.10.2006 decreed the suit of the plaintiffs for specific performance of agreement to sell dated 30.8.2002, as also for possession, with regard to the suit property and therefore, granted one month's time to the plaintiffs to deposit the balance amount. Aggrieved therefrom, the defendant preferred an appeal which came to be dismissed by the first appellate Court vide judgment and decree dated 21.8.2008. Now, the present second appeal challenging the judgment and decrees of the Courts has been preferred by the appellants ( who are the legal heirs of the defendant, since deceased). Both the Courts below, on appreciation of evidence adduced on record, have concurrently held that besides the testimony of plaintiff, Ranjit Singh, the due execution of agreement to sell dated 30.8.2002, Exhibit P- 2, and receipt of payment of Rs.4,50,000/- as earnest money has been fully corroborated by the attesting witnesses, namely, PW-3 Dana Singh and PW- 4 Gurcharan Singh. Both these witnesses have stated that on 30.8.2002, the defendant Dharam Pal entered into an agreement to sell in favour of the plaintiffs regarding land measuring 250 sq. yards situated at Haripura Basti, Sangrur, consisting of 3 rooms, one kitchen, one Verandah, one store and a hand-pump. Further, PW-1 Pawan Kumar, deed-writer while stepping into the witness-box had stated that he scribed the agreement to sell, Exhibit P- 2, at the asking of defendant Dharampal, and entered the agreement to sell in his register at Serial No. 1002. He further stated that he read over the contents of the said agreement to defendant Dharam Pal vendee as well as witnesses and after admitting the correctness thereof, the plaintiffs, defendant and the witnesses appended their signatures thereon. That RSA No. 1148 of 2009 -3- apart, Ajay Kumar son of defendant Dharam Pal also gave his consent upon the agreement to sell while giving a note in regard to receipt of Rs.4,50,000/- as earnest money. It may be mentioned that defendant Dharam Pal did not step into the witness-box to rebut the evidence of the plaintiffs despite the grant of number of opportunities for the purpose and also to prove his allegation that agreement to sell dated 30.8.2002, Exhibit P-2, is forged and fabricated document. Thus, by this act and conduct of the defendant by non-appearing into the witness-box, an adverse inference has been drawn by the Courts below against the defendant and the agreement to sell dated 30.8.2002, Exhibit P-2, has been held to be a genuine document having been executed by the defendant Dharam Pal on receipt of earnest money of Rs.4,50,000/-. Plaintiff was also found to have remained ready and willing to perform his part of the contract by virtue of submission of his affidavit, Exhibit P-3, which was got attested from the Executive Magistrate on 3.3.2003 as 1.3.2003 and 2.3.2003 were declared holidays. Nothing has been shown that the findings of fact so recorded by the Courts below suffer from any infirmity or are contrary to the record. No question of law, muchless substantial, arises in the present appeal. Consequently, the appeal being without any merit is hereby dismissed in limine. March 17, 2009 ( ARVIND KUMAR) JS JUDGE