RSA No.1378 of 2011 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1378 of 2011 (O & M) Date of Decision: 23.03.2011 Joga Singh ……Appellant Versus Parveen Kumar …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Parminder Singh, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.3863-C of 2011 Allowed as prayed for. Main appeal Defendant-Joga Singh having lost in both the Courts below is in second appeal. Respondent-plaintiff-Parveen Kumar filed suit against defendant-appellant for possession of suit land measuring 8 kanals being 160/2668 share of 133 kanals 8 marlas by specific performance of the agreement to sell dated 20.05.2002. The plaintiff alleged that the defendant agreed to sell the suit land to the plaintif RSA No.1378 of 2011 (O & M) - 2 - for total consideration of Rs.1,50,000/- and received Rs.1,25,000/- as earnest money and executed the aforesaid agreement. Sale deed was to be executed upto 19.04.2003. Since there were holidays from 19.04.2003 to 21.04.2003, the plaintiff went to the office of Sub- Registrar on 22.04.2003 to get the sale deed executed in terms of the agreement, but the defendant did not turn up and committed breach of the agreement. The plaintiff served notice dated 17.09.2004 on the defendant, who received it on 18.09.2004, but the defendant did not do the needful. The plaintiff in November, 2005 also made oral request to the defendant, but without any result. Another notice dated 02.12.2005 was served on the defendant, who received it on 03.12.2005, but still the defendant did not execute the sale deed and committed breach of the agreement whereas the plaintiff always remained ready and willing to perform his part of the contract. The defendant broadly denied the plaint allegations. He denied having agreed to sell the suit land to the plaintiff or having received any earnest money or having executed the impugned agreement. The defendant alleged that plaintiff is partner in firm carrying on business as commission agent. The defendant used to sell his agricultural produce at the said shop of the plaintiff. The plaintiff might have procured defendant’s signatures on stamp paper, but the defendant never executed the impugned agreement. Various other pleas were also raised. RSA No.1378 of 2011 (O & M) - 3 - Learned Additional Civil Judge (Senior Division), Pehowa vide judgment and decree dated 16.01.2009 decreed the plaintiff’s suit. First appeal preferred by defendant has been dismissed by learned District Judge, Kurukshetra vide judgment and decree dated 29.01.2011. Feeling aggrieved, defendant has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff in order to prove his case examined scribe of the agreement, one attesting witness of the agreement and also the Notary, who had attested the agreement, in addition to the plaintiff himself stepping into the witness box. All of them have broadly stated according to plaintiff’s version. On the other hand, defendant himself appeared in the witness box and also examined another attesting witness of the agreement. Plaintiff’s evidence has been found to be cogent and credible by the Courts below and rightly so. Plaintiff’s case is supported by scribe of the agreement and by one attesting witness of the agreement and also by Mr. P. K. Harit, Advocate, who as Notary, attested the said agreement. Statements of defendant and his witness Harbhajan Singh are not sufficient to rebut the aforesaid RSA No.1378 of 2011 (O & M) - 4 - cogent evidence of the plaintiff. It is worth mentioning that the defendant has admitted his signatures on the impugned agreement. The defendant alleged that his signatures might have been obtained by the plaintiff on some paper because the defendant used to sell his crop at the shop of the plaintiff. However, the defendant would not affix his signatures on an agreement without knowing its contents nor he would affix his signatures on blank stamp paper. On the other hand, defendant’s signatures appear on both sheets of the impugned agreement. On the first sheet, his signatures appear on revenue stamp and partly on the stamp paper. The defendant would not have affixed his signatures on both the sheets of the impugned agreement including revenue stamp without entering into the agreement and without receiving the earnest money. In addition to the aforesaid, entries of the impugned agreement were made by the Deed Writer (Scribe) in his register and also by the Notary in his register and entries in both the said registers have also been signed by the defendant. However, the defendant has not explained how his signatures appear on the said entries in the registers. Moreover, Mr. P. K. Harit, Advocate as Notary would not have attested the agreement, if it had not been executed by the defendant and would not have deposed falsely in favour of the plaintiff without any reason. He is an independent and reliable witness. Of course, he did not know the defendant personally. However, there is no dispute about the identity of the defendant RSA No.1378 of 2011 (O & M) - 5 - because signatures of the defendant on the impugned agreement as executant thereof stand admitted. Moreover, the defendant was identified before the Notary, who thereupon attested the agreement. Consequently, there is no escape from the conclusion that the execution of the agreement and receipt of earnest money by the defendant stand fully proved. It is also significant to notice that plaintiff served notices dated 17.09.2004 and 02.12.2005 on the defendant requiring him to execute the sale deed in terms of the agreement. The defendant received both the said notices, but did not send any reply to the same. If the defendant had not executed the impugned agreement, he would have immediately responded to the said notice to deny the execution of the agreement, but the defendant did not do so. Learned counsel for the appellant contended that the suit has been filed on 22.12.2005 i.e two years and eight months after the date stipulated in the agreement for execution of the sale deed. However, this circumstance does not help the defendant-appellant because it is not his case that he was ever ready or willing to perform his part of the contract or that the plaintiff committed breach thereof. On the contrary, the plaintiff has led sufficient evidence to prove that he always remained ready and willing to perform his part of the contract. He attended the office of Sub-Registrar on 22.04.2003 to get the sale deed executed in terms of the agreement. The plaintiff RSA No.1378 of 2011 (O & M) - 6 - thereafter also served two notices dated 17.09.2004 and 02.12.2005 on the defendant requiring him to execute the sale deed in terms of the agreement, but the defendant neither responded to the notices by sending any reply nor executed the sale deed, forcing the plaintiff to file the instant suit. Consequently, it is fully established that the plaintiff always remained ready and willing to perform his part of the contract. Learned counsel for the appellant also contended that the plaintiff did not produce account books of the firm from which the plaintiff had withdrawn the amount of earnest money for payment to the defendant. However, this circumstance does not go against the plaintiff in any manner, when execution of the agreement and payment of earnest money by plaintiff to the defendant stands fully proved by cogent evidence led by the plaintiff. Payment of the earnest money is also recited in the agreement. The defendant affixed his signatures on revenue stamp on the agreement depicting receipt of money by him. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by both the Courts below in favour of plaintiff-respondent is based on proper appreciation of evidence and is supported by various reasons recorded by the Courts below. The said finding does not call for interference in second appeal because it is not shown to be perverse RSA No.1378 of 2011 (O & M) - 7 - or illegal in any manner nor it is based on misreading or misappreciation of evidence. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 23.03.2011 A.kaundal