RSA No.4349 of 2008 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4349 of 2008 (O & M) Date of Decision: 15.01.2010. Rajwant Singh .……Appellant Versus Jaswinder Kaur and another ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Amit Mehta, Advocate for Mr. M. S. Sidhu, Advocate for the appellant. L. N. MITTAL, J (ORAL) CM No.12912-C of 2008 For reasons mentioned in the application, which is accompanied by affidavit, delay of 94 days in refiling the appeal is condoned. CM No.12913-C of 2008 Allowed as prayed for. CM No.12914-C of 2008 This is application for permission to the appellant to affix requisite Court fee on the regular second appeal as and when the appellant would be able to arrange the same. This application is dated 24.04.2008 i.e more than one year and eight months old, but requisite Court fee has not yet been paid. The application is accordingly dismissed. Main Appeal. The instant second appeal is liable to be rejected on ground of non-payment of requisite Court fee. Even on merits, the appellant has no case. This is second RSA No.4349 of 2008 (O & M) -2- appeal by Rajwant Singh-defendant No.1, who has been unsuccessful in both the Courts below. Jaswinder Kaur respondent No.1 filed suit against appellant and proforma respondent No.2 herein alleging that defendant-respondent No.2 executed General Power of Attorney dated 17.10.2000 appointing defendant No.1 as his General Attorney and on its basis, defendant No.1 executed agreement to sell dated 05.01.2001 in favour of the plaintiff for sale of 40 kanals land of defendant No.2 at the rate of Rs.1,00,000/- per acre and earnest money of Rs.4,90,000/- was paid by plaintiff to defendant No.1. However, later on, it transpired that General Power of Attorney dated 17.10.2000 had already been cancelled by defendant No.2 vide cancellation deed dated 26.10.2000, but defendant No.1 concealing the said fact entered into the aforesaid agreement, although defendant No.1 was no longer General Attorney of defendant No.2 on the date of agreement. Consequently, the plaintiff sought recovery of Rs.4,90,000/- along with interest thereon at the rate of 18% per annum till recovery. The plaintiff also sought relief of permanent injunction restraining the defendants from alienating their respective lands so as to defeat the right of recovery of the plaintiff. Defendants in their separate written statements inter alia pleaded that defendant No.1 was not General Attorney of defendant No.2 on 05.01.2001, the date of agreement. Defendant No.1 pleaded that he never executed the alleged agreement and in fact plaintiff's father got signatures of defendant No.1 by fraud and misrepresentation stating that defendant No.1 was required to be a witness to a mortgage deed to be executed by plaintiff's father and accordingly defendant No.1 signed blank papers at the seat of Deed Writer and also appeared before Sub-Registrar and supplied his photograph. Defendant No.2 pleaded that there is no privity of contract between plaintiff and defendant No.2. RSA No.4349 of 2008 (O & M) -3- Learned Civil Judge (Junior Division), Ajnala vide judgment and decree dated 21.12.2005, dismissed the suit as against defendant No.2, but decreed the suit with costs against defendant No.1 for recovery of Rs.4,90,000/- with interest thereon at the rate of 6% per annum from the date of filing of suit till recovery. However, relief of injunction has been declined against defendant No.1 as well. First appeal preferred by defendant No.1 has been dismissed by learned Additional District Judge, Amritsar vide judgment and decree dated 21.01.2008. Feeling still aggrieved, defendant No.1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that marginal witnesses of the agreement, who were examined as witnesses by the plaintiff, have not stated that the amount of Rs.4,90,000/- was paid in their presence by plaintiff to defendant No.1 and so said payment is not proved. The contention cannot be accepted because as per recital in the agreement, the money had already been paid by plaintiff to defendant No.1 and this fact was admitted by defendant No.1 by recital in the agreement. Since the said amount was not paid in the presence of witnesses of the agreement, obviously the said witnesses could not state about the said payment. However, payment of the said amount by the plaintiff to defendant No.1 is proved by specific recital in the agreement as well as by endorsement of Sub-Registrar on the agreement. The agreement itself has been duly proved by the statement of the plaintiff as well as by the statements of marginal witnesses of the agreement. In addition to the aforesaid, it has to be noticed that the agreement in question is a registered agreement. Defendant No.1 has admitted his signatures thereon. He also admittedly appeared before the RSA No.4349 of 2008 (O & M) -4- sub-Registrar at the time of registration of the agreement. Photograph of defendant No.1 has also been affixed on the agreement as executant thereof. Consequently, no doubt is left about the due execution of agreement by defendant No.1. Perusal of agreement reveals that defendant No.1 had received Rs.4,90,000/- from the plaintiff. Admittedly, defendant No.1 was not General Attorney of defendant No.2 on 05.01.2001, the date of agreement, but in spite thereof, defendant No.1 executed the agreement as General Attorney of defendant No.2 and thereby cheated the plaintiff. The suit has thus been rightly decreed against defendant No.1. It may also be noticed that the contention raised by counsel for the appellant as noticed hereinabove relates to finding of fact. However, in second appeal, only substantial question of law, if any arising, can be determined. Second appeal cannot be entertained on question of fact. There is concurrent finding of fact by both the Courts below based on appreciation of evidence that defendant No.1 had executed the aforesaid agreement and had received Rs.4,90,000/- from the plaintiff. The said finding is not shown to be perverse or illegal in any manner. For the reasons recorded hereinabove, I find no merit in the instant appeal which is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 15.01.2010 A. Kaundal