Regular Second Appeal No. 1549 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1549 of 2009 Date of decision : November 26, 2010 Sher Singh ....Appellant versus Bagicha Ram ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Deepak Agnihotri, Advocate, for the appellant Mr. RS Mittal, Senior Advocate with Mr. Atul Gaur, Advocate, for the respondent L.N. Mittal, J. (Oral) Defendant Sher Singh having failed in both the courts below has come up by way of instant second appeal. Respondent Bagicha Ram filed suit against defendant-appellant for possession of the suit land by specific performance of agreement to sell dated 1.3.1999. The plaintiff alleged that the defendant agreed to sell the suit land measuring 26 kanals 7 marlas (being 527/1374 share of 68 kanals 14 marlas land described in the plaint) to the plaintiff at the rate of ` 90,000/- per acre and received ` 1,50,000/- as earnest money and the sale deed was to be executed upto 29.2.2000. However, on 26.2.2000 date for Regular Second Appeal No. 1549 of 2009 -2- execution of the sale deed was extended to 30.6.2000 by endorsement on the back of the agreement. Thereafter on 30.6.2000, the defendant received ` 30,000/- as further earnest money and date for execution of the sale deed was extended to 1.9.2000 by endorsement on the back of last sheet of the agreement. The suit land was already under mortgage with plaintiff's father Lal Chand vide mortgage deed dated 30.1.1996 and mortgage money of ` one lac was to be deposited out of the sale consideration. On 1.9.2000, the plaintiff went to the office of Sub Registrar with requisite amount to get the sale deed executed and registered in terms of the agreement but the defendant did not turn up and committed breach of the agreement although the plaintiff has always been ready and willing to perform his part of the contract. The defendant in his written statement admitted that he had mortgaged suit land with plaintiff's father for ` one lac vide mortgage deed dated 30.1.1996. The defendant, however, pleaded that he has got the mortgage of the suit land redeemed by moving application before the Collector, Sirsa. The defendant also alleged that on 12.9.1996 without paying any consideration, an agreement to sell was got executed in favour of plaintiff's father which was got extended from time to time. The defendant also alleged that impugned agreement dated 1.3.1999 is also without consideration. Various other pleas were also raised. Learned Civil Judge (Junior Division), Sirsa vide judgment and decree dated 15.12.2005 decreed plaintiff's suit. First appeal preferred by defendant has been dismissed by learned Additional District Judge, Fast Track Court, Sirsa vide judgment and decree dated 1.12.2008. Feeling Regular Second Appeal No. 1549 of 2009 -3- aggrieved, the defendant has preferred the instant second appeal. Pursuant to order of the preceding date, records of the courts below have been received. I have heard learned counsel for the parties and perused the case file including records of the courts below with the assistance of the counsel for the parties. The plaintiff has examined Joginder Mohan Document Writer as witness. He stated that he had scribed impugned agreement Ex. P1 dated 1.3.1999 and also endorsement Ex. P2 dated 26.2.2000 and endorsement Ex. P3 dated 30.6.2000 on the back of the agreement regarding extension of date of execution of sale deed. The plaintiff has also examined Jagdish Chander PW4 who is witness of the agreement as well as of endorsement Ex. P2. Joginder Singh PW5 is witness of endorsement Ex. P3. Plaintiff has himself stepped into witness box as PW3. All of them have stated according to the plaintiff's version. On the other hand, the defendant examined Joginder Mohan Deed Writer (who already appeared as PW1). He stated about entries in his register relating to agreement dated 12.9.1996 by defendant Sher Singh in favour of plaintiff's father and subsequent entry dated 1.9.1998 regarding payment of further earnest money and extension of date of execution of sale deed. Similarly, Satish Kumar DW2 proved entry from his register dated 27.8.1998 whereby date for execution of sale deed pursuant to agreement dated 12.9.1996 was further extended. The defendant himself stepped into witness box as DW3 and reiterated his version. The defendant in his cross-examination admitted his signatures Regular Second Appeal No. 1549 of 2009 -4- at five places on the impugned agreement including two endorsements on the back of it. He also admitted writing in his own hand on the agreement Ex. P1 regarding receipt of ` 1,50,000/- and writing below endorsement Ex. P3 regarding receipt of further amount of ` 30,000/-, under his own signatures. The plaintiff has led sufficient evidence to prove the impugned agreement and endorsement by examining scribe and attesting witnesses and also by appearing himself in the witness box. The defendant has impliedly admitted the execution of the agreement. Moreover, he admitted his signatures on the agreement as well as on the endorsement made on the back thereof. The defendant's stand is that under pressure of the mortgage and to secure the mortgage money, the impugned agreement was obtained from the defendant. However, this stand of the defendant is inherently and intrinsically devoid of any merit. Mortgage of the suit land in favour of the plaintiff's father was created on 30.1.1996. Consequently, more than three years thereafter, on 1.3.1999 the defendant was under no compulsion to execute the impugned agreement. The defendant's version that the impugned agreement was obtained to secure payment of the mortgage money is also completely absurd and untenable because mortgage money was already secured by way of mortgage deed. Moreover, the defendant further made endorsements dated 26.2.2000 and 30.6.2000 for extension of date of execution of sale deed under the agreement. At that time also there was no occasion for the defendant for doing so if there had been no genuine transaction between the parties. Learned counsel for the appellant emphatically contended that payment of consideration under the impugned agreement is not proved. Regular Second Appeal No. 1549 of 2009 -5- This contention is also completely devoid of merit because the defendant has mentioned in his own handwriting and under his own signatures regarding receipt of ` 1,50,000/- as earnest money vide agreement Ex. P1 and also regarding receipt of further amount of ` 30,000/- vide endorsement Ex. P3. Consequently, it cannot be said that the impugned agreement was without consideration. Learned counsel for the appellant also contended that the impugned agreement was intended to be security for mortgage. However, as already discussed hereinbefore, agreement could not be security for the mortgage money because the mortgage money was already secured by way of registered mortgage deed. There is concurrent finding by both the courts below against the defendant-appellant and in favour of plaintiff-respondent. The said finding is fully justified by the evidence on record and is supported by cogent reasons recorded by the courts below. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is completely devoid of any merit and is accordingly dismissed. ( L.N. Mittal ) November 26, 2010 Judge 'dalbir'