Regular Second Appeals No.2811 & 2812 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal Nos.2811 & 2812 of 2010 Date of Decision:-5.7.2011 Jagdish son of Het Ram ...Appellant Versus Smt.Shanti Devi and another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.R.A.Sheoran, Advocate for the appellant. M ehinder S ingh S ullar , J . (Oral) As identical factual matrix is involved, therefore, I propose to dispose of above indicated two appeals, which were decided by the first appellate Court, vide single judgment, by virtue of this common judgment, in order to avoid the repetition. Moreover, since the Courts below duly recapitulated and described the compendium of the pleadings and evidence brought on record by the parties, so, there appears to be no necessity to again reproduce and repeat the same in this context. 2. However, the crux of the facts, culminating in the commencement, relevant for deciding the instant appeals and emanating from the record, is that Smt.Shanti Devi and others-plaintiffs in the first Civil Suit No.468 of 2001/2002 (hereinafter to be referred as “first suit”) were the owners of land in dispute. As they wanted to take the loan/Kisan Credit Card through the bank, therefore, they requested one Jee Ram Sarpanch of village Kasumbi to accompany them in procuring/obtaining the Kisan Credit Card from the bank. He brought them in the premises of old Court Complex, Sirsa and obtained their thumb impressions on blank papers in good faith, but subsequently they came to know on 30.10.2001 that Jee Ram Sarpanch has played a fraud with them and illegally prepared the Regular Second Appeals No.2811 & 2812 of 2010 -2- agreement dated 24.10.2001 to sell the land in question, purported to be in favour of Jagdish son of Het Ram defendant in first suit, wherein it was claimed that they (proposed vendors) had obtained a sum of ` 2,90,000/- as earnest money. They neither received any amount nor delivered the possession of the land in dispute in execution of the agreement to sell as alleged by him. 3. Levelling a variety of allegations and narrating the sequence of events, in all, according to the plaintiffs in the first suit that they are illiterate, they never executed any agreement to sell the land in question in favour of Jagdish- defendant nor received any earnest money. In fact, they have been cheated by Jagdish-defendant with the connivance of Jee Ram Sarpanch. That being so, the plaintiffs filed the first suit for cancellation of the alleged agreement to sell dated 24.10.2001 in the manner indicated hereinabove. 4. Sequelly, Jagdish son of Het Ram (plaintiff) filed the second civil suit No.508 of 2002 for specific performance of the agreement to sell (for brevity “second suit”) on the ground that Shanti Devi and others -defendants in second suit have entered into an agreement to sell their land in dispute in his favour for a sum of ` 7,90,000/- and received a sum of ` 2,90 000/- as earnest money. The remaining amount was payable on or before 4.1.2002. The agreement was stated to have been duly scribed by Joginder Mohan Batra, Deed-writer, which was witnessed by Jee Ram Sarpanch etc. The actual possession of the land was claimed to have been handed over to him. The proposed vendors were stated to have concocted a false version in first suit. In this manner, Jagdish son of Het Ram (plaintiff in the second suit) sought a decree for specific performance of the agreement to sell in question. On the basis of aforesaid allegations/grounds, both the parties filed their respective suits against each other in the manner described hereinbefore. 5. In the wake of pleadings of the parties, the trial Court framed the following issues in the first suit:- Regular Second Appeals No.2811 & 2812 of 2010 -3- 1. Whether the agreement of sale dated 20.10.2001 is liable to be set aside as alleged?OPP 2. Whether proceedings in the present suit are liable to be stayed under Section 10 of CPC?OPP 3. Relief. 6. Similarly, the following issues were framed in the second suit:- 1. Whether the defendants executed the agreement for sale in respect of the suit land on 24.10.2001 in favour of the plaintiff and received the earnest money to the extent of Rs.2,90,000/-?OPP 2. Whether the agreement for sale dated 24.10.2001 is a forged document?OPD 3. Relief. 7. Having completed all the codal formalities, the trial Court decreed the first suit filed by Smt.Shanti Devi etc. (plaintiffs) and dismissed the second suit filed by Jagdish (plaintiff), by way of impugned judgment and decree dated 30.10.2008. 8. Aggrieved by the judgment and decree of the trial Court, Jagdish defendant in the first suit and plaintiff in the second suit, preferred the appeals, which were dismissed as well, by the first Appellate Court, by means of impugned judgment and decree dated 24.2.2010. 9. He (Jagdish) still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the instant regular second appeals. That is how I am seized of the matter. 10. After hearing the learned counsel for the appellant, going through the records with his valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the present appeals. 11. Ex facie, the argument of learned counsel for the appellant that since the Courts below have misread the evidence and relied upon the minor discrepancies in it as regards to payment of earnest money is concerned, so, the impugned judgments and decrees are illegal, is not only devoid of merit but misplaced as well. Regular Second Appeals No.2811 & 2812 of 2010 -4- 12. As is evident from the record that the plaintiffs in the first suit claimed that Jagdish-defendant has committed a fraud with the connivance of Jee Ram Sarpanch, who took them to the old Court Complex, Sirsa to facilitate their case of loan/Kisan Credit Card through the bank. He obtained their thumb impressions on blank papers and fraudulently executed the alleged agreement to sell their land in dispute in favour of Jagdish. They neither executed any agreement to sell nor received any earnest money as alleged by him (Jagdish). 13. On the contrary, according to appellant Jagdish, plaintiff in second suit, that Shanti Devi and others have executed the agreement dated 24.10.2001 to sell the land in dispute to him for a consideration of ` 7,90,000/- and received the earnest money of ` 2,90,000/-. The trial Court, after taking into consideration the entire oral as well as documentary evidence, age and illiteracy of the proposed vendors, recorded a finding of fact that the alleged agreement to sell dated 24.10.2001 is the result of fraud and mis-representation, as according to agreement (Ex.P2), the sale deed was required to be executed on or before 4.1.2002, but Jagdish did not approach the Sub Registrar for registration of the sale deed alongwith the sale consideration. Moreover, no cogent evidence is forth coming on record that when, how and in what manner, the appellant paid the earnest money to the poor illiterate proposed vendors. The mere recital in the agreement to sell (Ex.P2) that the earnest money was paid to the proposed vendors, is not sufficient to prove the actual payment of alleged earnest money, particularly when Joginder Mohan Batra, scribe has stoutly denied and deposed that no consideration amount was paid to them in his presence in this respect. 14. Not only that, the first appellate Court, while affirming the decree of the trial Court, observed (para 19) as under :- “So far as, the second suit is concerned, the appellant produced PW1 Joginder Mohan Batra, Deed-Writer. His deposition Ex.PW1/A is on the lines as deposed by him in the first suit. He was categoric that earnest money of Rs.2,90,000/- was not paid by the appellant to the respondents in Regular Second Appeals No.2811 & 2812 of 2010 -5- his presence. Witness Jee Ram with his deposition Ex.PW2/A has also deposed the same/similar facts as deposed by him while appearing as DW3 in the first suit. Similarly, PW3 Pat Ram and PW4 Vijay Kumar Monga have also made similar statements as deposed by them while appearing as DW3 and DW5 respectively in the first suit. PW5 Khumba Ram in the second suit, has proved affidavit Ex.P2, sworn in by the appellant before the Sub Registrar, Sirsa on 23.1.2002 whereas, PW6 Jagdish (appellant) has also deposed the facts as deposed by him in the first suit while appearing as DW5. As opposite to the said deposition, DW1 Subhash Patwari has proved the revenue records Ex.D4 to Ex.D7. The said documents show the possession of the respondents over the suit land. Smt.Shanti respondent no.1 has appeared as DW2. She has also reiterated the contents of the written statement in the second suit and also the contents of the plaint in the first suit. DW3 Puran Ram has deposed that he know the parties very well but the respondent Jaimal was an addict to alcohol. As per him, for quite long time, he was under the influence of the appellant and witness Jee Ram Sarpanch. As per his deposition Ex.DW3/A, when on 24.10.2001, the police came to investigate one of the criminal cases lodged by the respondents, it found that the appellant and the two marginal witnesses of the agreement to sell in question had committed fraud upon the respondents on the pretext of arranging loan for them. As per him, the said agreement to sell was based upon fraud and misrepresentation. Hence, in the second suit, Smt.Shanti Devi appeared as DW2 with Subhash Patwari as DW1 and Puran Ram as DW3. So far as the appellant is concerned, his witnesses are the same as were produced in the first suit in defence. They testimony of the witnesses recorded in both the suits, therefore, with the documents adduced therein, are being considered and discussed jointly.” 15. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the concurrent findings of fact that the execution of the agreement to sell is the result of fraud and mis-representation. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and Regular Second Appeals No.2811 & 2812 of 2010 -6- until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard. 16. In this manner, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant. 18. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeals are hereby dismissed as such. (Mehinder Singh Sullar) 5.7.2011 Judge AS Whether to be referred to reporter?Yes/No