R.S.A.No. 2835 of 2008(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2835 of 2008(O&M) Date of Decision:August 19, 2009 Taran Singh ---Appellant versus Sitawanti and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.Deepak Nayyar,Advocate, for the appellant *** SABINA J. Plaintiff –Banarsi Lal had filed a suit for possession by way of specific performance of agreements to sell dated 22.12.1997. Civil Judge (Junior Division), Ajnala vide judgment and decree dated 4.1.2006 decreed the suit of the plaintiff. Aggrieved by the same, defendant preferred an appeal and the same was dismissed by District Judge, Amritsar vide judgment and decree dated 13.2.2008. Hence, the present appeal by the defendant. The facts of the case as noticed by the learned District Judge, in paras2 to 4 of its judgment read as under:- “The appellant, herein, agreed to sell the suit land, morefully R.S.A.No. 2835 of 2008(O&M) 2 described in the cause title of the plaint, in favour of the respondent for consideration of Rs. 1,10,000/-, vide agreement of sale dated 22.12.1997 and received Rs. 78,000/- as imprest. Sale deed under the agreement, ibid, was to be executed on 5.7.1998, which, happened to be Sunday and on 6.7.1998, respondent, remained present in the office of the Sub-Registrar, Ajnala, for whole of the day along with remaining balance sale consideration, but, the appellant did not turn up to execute the sale deed, pursuant to the agreement of sale, ibid. Even, the respondent served legal notice dated 17.05-2000, asking the appellant to execute the sale deed, but, the latter failed to do so. So, the appellant failed to execute the sale deed of the suit land, pursuant to the agreement of sale in favour of the respondent, albeit, the latter always remained ready and willing to person his part of the agreement of sale. 3. Against this background, the respondent, herein, instituted suit before the learned trial Court possession by way of specific performance of agreement of sale dated 22.12.1997 and in the alternative for recovery of Rs. 1,56,000/-. 4. Appellant in the written statement, apart from taking preliminary objections of maintainability of suit, limitation, locus standi, suit being bad for non joinder and mis- joinder of necessary parties, cause of action, concealment of facts, valuation, jurisdiction and agreement of sale being forged and fabricated one, admitted himself to be the owner of the suit land, but, denied the other averments, contained in the plaint R.S.A.No. 2835 of 2008(O&M) 3 and prayer for dismissal of the suit was, thus, made.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether defendant executed agreement to sell with regard to suit property on 22.12.1997 after receiving Rs. 78,000/-as earnest money from the plaintiff, as alleged? OPP (2)Whether plaintiff remained ready and still ready and willing to get the sale deed executed? OPP (3)Whether the suit is not maintainable in the present form? OPD (4)Whether plaintiff has got no locus stndi and cause of action to file the present suit? OPD (5)Whether suit is within limitation? OPD (6)Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD (7)Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD (8)Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD (9)Whether the plaintiff is entitled to possession of suit property by way of specific performance of the agreement? OPP (10)Issue No. 9 is not proved, whether plaintiff is entitled to alternative relief of Rs. 1,56,000/- as alleged? OPP (11)Relief. After hearing learned counsel for the appellant, I am of the R.S.A.No. 2835 of 2008(O&M) 4 opinion that the present appeal is devoid of any merit. Plaintiff had sought specific performance of agreement to sell dated 22.12.1997(Ex. P-1). The case of the plaintiff was that Rs. 78,000/- had been paid by him as earnest money to the defendant at the time of execution of agreement to sell. The sale deed was to be executed on 5.7.1998. Since the said date was a Sunday and the office of Sub Registrar was closed, plaintiff remained present in the office of Sub Registrar, Ajnala on 6.7.1998 along with the balance sale consideration but the defendant failed to appear to perform his part of the contract. In order to prove his case, plaintiff himself appeared in the witness box as PW-3 and examined PW-2-Balbir Singh, attesting witness to the agreement to sell and PW-1 Gurmukh Singh son of the deceased Deed Writer. PW-1 and PW-2 duly proved the execution of the agreement to sell(Ex. P-1). On the other hand, defendant took up the plea that the agreement to sell was a result of fraud. In fact, he had been made to sign on blank paper and the same had been converted into an agreement to sell(Ex. P-1). In this regard, defendant examined DW-3, Hand Writing and Finger Print Expert who opined that the agreement to sell Ex. P-1 had been scribed on a paper which was already having the signatures of the defendant. However the said witness, during his cross examination had failed to disclose about the age of the writing or the signatures on Ex. P-1, agreement to sell. Defendant also examined DW- 2, who was other attesting witness to the agreement to sell. The said witness in his cross examination admitted that vide the agreement to sell in question, defendant had agreed to sell the suit land and the agreement was scribed by Balbir Singh. In these circumstances both the courts below, after appreciating the evidence on record had given a finding of fact that the R.S.A.No. 2835 of 2008(O&M) 5 agreement to sell, in question, had been duly executed by the defendant. Plaintiff in order to establish that he was ready and willing to perform his part of the contract, proved on record, copy of legal notice which was served on the defendant with regard to the execution of the sale deed Ex. P-3 and its postal receipt Ex. P-5 and acknowledgment Ex. P-4. Plaintiff also proved on record his affidavit dated 6.7.1998 (Ex. P-2) attested by the Executive Magistrate, Ajnala to corroborate his plea that he was present in the office of the Sub Registrar, Ajnala in connection with the execution of the sale deed. Hence, both the courts below have rightly decreed the suit of the plaintiff. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE August 19, 2009 PARAMJIT