R.S.A. No. 1441 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1441 of 2008 Date of Decision: 15.10.2008 Smt. Sardari and others ...Appellants. Versus Dilawar Singh and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Arvind Singh, Advocate for the appellants. AJAY KUMAR MITTAL, J. Out of nine, four legal representatives of the defendant- Jagdish, who had died during the pendency of the suit, have approached this Court by way of present regular second appeal against the judgment and decree dated 11.12.2006 passed by the District Judge, Kurukshetra affirming that of the Additional Civil Judge (Senior Division), Kurukshetra dated 30.9.2005 vide which the suit of the plaintiff for specific performance, was decreed. Shorn of unnecessary details, the relevant facts of the case are that the defendant-Jagdish was owner in possession of the land measuring 5 kanals comprised in khasra No. 73/17/1 (5-0) situated in village Dhanaura Jattan, Tehsil Thanesar, District Kurukshetra (hereinafter referred to as the “suit land”) and he executed an R.S.A. No. 1441 of 2008 -2- agreement to sell dated 31.1.2000, Ex.P1, in favour of the plaintiff in respect of the suit land for a total sale consideration of Rs.1,87,500/- and received Rs.1,45,000/- as earnest money. The sale deed was agreed to be executed on or before 24.11.2000 on payment of the balance sale consideration of Rs.42,500/-. It was pleaded that on 22.11.2000, the plaintiff approached the defendant with the balance sale consideration to execute the sale deed in pursuance of the agreement to sell dated 31.1.2000. On the stipulated date, i.e. 24.11.2000, the plaintiff remained present in the office of Sub Registrar, Ladwa, District Kurukshetra for getting the sale deed executed in his favour but the defendant did not turn up and he got attested an affidavit dated 24.11.2000, Ex.P2, from the Executive Magistrate, Ladwa regarding his presence there. It was further pleaded that thereafter the plaintiff approached the defendant with a request to perform his part of the agreement to sell dated 31.1.2000 but the defendant refused to do so which gave rise to the filing of a suit for possession by way of specific performance of the agreement to sell in question. In the alternative, a prayer for the recovery of Rs.2,90,000/-, i.e. the double amount of the earnest money of Rs.1,45,000/-, was made. Upon notice, the suit was contested by the defendant by filing a written statement raising various preliminary objections. It was pleaded that the suit land was a Joint Hindu Family Property and the defendant never executed any agreement to sell in favour of the plaintiff and the agreement to sell dated 31.1.2000, raked up by the plaintiff was a result of fraud and fabrication. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. R.S.A. No. 1441 of 2008 -3- From the pleadings of the parties, the trial court framed various issues and on appreciation of the oral as well as the documentary evidence came to the conclusion that the defendant executed the agreement to sell dated 31.1.2000 in favour of the plaintiff and the plaintiff was entitled to a decree for possession regarding the suit land through specific performance of the agreement to sell dated 31.1.2000, Ex.P1, on payment of the balance sale consideration of Rs.42,500/-. Accordingly, the suit of the plaintiff was decreed by the trial court vide judgment and decree dated 30.9.2005. Feeling aggrieved, the legal representatives of the defendant-Jagdish, who are appellants herein also, approached the lower appellate court by filing the appeal under Section 96 of the Code of Civil Procedure but vide judgment and decree dated 11.12.2006 the appeal was also dismissed and the findings recorded by the trial court were affirmed. I have heard the learned counsel for the appellants and perused the impugned judgments with his assistance. Learned counsel for the appellants submitted that the findings recorded by the courts below are contrary to the evidence and are, thus, perverse. According to the learned counsel, the findings are based on misreading and misappreciation of evidence and, thus, legally unsustainable. Both the courts on appreciation of the testimonies of the witnesses particularly PW1 Singh Ram, scribe, as well as PW2 Jasbir Singh and PW3 Joginder Singh, attesting witnesses, of the agreement to sell in question, besides other documentary evidence, had recorded that defendant-Jagdish had duly executed the agreement dated R.S.A. No. 1441 of 2008 -4- 31.1.2000, Ex.P1, to sell the suit land in favour of the plaintiff. It was further recorded that the plaintiff had been ready and willing to perform his part of the agreement but it was the vendor-Jagdish who backed out from executing the sale deed. No illegality or perversity could be pointed out in the findings of fact recorded by the courts below except that the learned counsel made valiant efforts to re-appreciate the evidence so as to persuade this Court to arrive at a different conclusion than that of the courts below. No question of law, much less a substantial question of law arises in this appeal. In view of the above, finding no merit in this appeal, the same is hereby dismissed with no order as to costs. October 15, 2008 (AJAY KUMAR MITTAL) gbs JUDGE R.S.A. No. 1441 of 2008 -5- C.M. Nos. 4462-63-C of 2008 IN RSA No. 1441 of 2008 **** Present: Mr. Arvind Singh, Advocate for the applicant-appellants. ***** C.M. No. 4462-C of 2008 This is an application under Section 151 of the Code of Civil Procedure for condonation of 294 days' delay in refiling the appeal. After hearing the learned counsel for the applicant- appellants and perusing the application which is supported by an affidavit, the delay of 294 days in refiling the appeal is condoned. CM stands disposed of accordingly. C.M. No. 4463-C of 2008 This is an application under Section 149 read with Section 151 of the Code of Civil Procedure for extension of time of 294 days in making the deficiency of court fee. Learned counsel states that since the deficiency in affixing the court fee has been made good, the delay, if any, may be condoned. After hearing the learned counsel and perusing the application which is supported by an affidavit, the delay, if any, in affixing the court fee is condoned. CM stands disposed of accordingly. October 15, 2008 (AJAY KUMAR MITTAL) gbs JUDGE