R. S. A. No. 2950 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2950 of 2010 (O&M) Date of Decision : August 06, 2010 Mange Ram .... Appellant Vs. Surender Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Parmod Parmar, Advocate for the applicant-appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 8826-C of 2010 : Allowed as prayed for, subject to all just exceptions. C. M. No. 8827-C of 2010 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 17 days in filing the appeal is condoned. C. M. No. 8828-C of 2010 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 147 days in re-filing the appeal is condoned. R. S. A. No. 2950 of 2010 (O&M) 2 Main Appeal : Defendant Mange Ram has filed the instant second appeal having remained unsuccessful in both the courts below. Surender Singh – respondent/plaintiff filed suit against appellant for possession of suit land by specific performance of agreement to sell. The plaintiff alleged that the defendant agreed to sell 20 kanals 11 marlas land, being 1/3rd share of 61 kanals 13 marlas land, to the plaintiff for Rs.3,50,000/- and received Rs.3,10,000/- as earnest money and executed agreement dated 26.05.2000. Sale deed was to be executed up to 25.05.2001. The defendant also had the option to return the earnest money before the said date. The defendant failed to return the earnest money and also failed to execute the sale deed. The plaintiff remained present in the office of Sub Registrar on 25.05.2001 and also on 28.05.2001 to get the sale deed executed and registered in terms of the agreement, but the defendant failed to turn up. The defendant also mentioned in the agreement that the land was free from incumbrances, but it was learnt that the defendant had obtained loan of Rs.1,38,000/- from Primary Co-operative Bank on 08.05.2000 by mortgaging the suit land. The defendant inter alia pleaded that although he is recorded to be owner of 1/3rd share in 61 kanals 13 marlas land, but in fact, the said share is ancestral coparcenary property and defendant's share comes to 1/9th in the said land and his two sons have the remaining 2/9th share. The R. S. A. No. 2950 of 2010 (O&M) 3 defendant also pleaded that in fact, he had taken loan of Rs.1,50,000/- from the plaintiff, but the plaintiff got executed agreement to sell as security for return of the said amount with interest @ 2% per month. The plaintiff also included interest amount and bank loan amount in the agreement. The defendant went to plaintiff on 25.05.2001 to return the loan amount, but the plaintiff refused to receive the same and demanded Rs.3,10,000/- with interest. The defendant also raised various other pleas. Learned Additional Civil Judge (Senior Division), Jhajjar, vide judgment and decree dated 09.03.2009, decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Jhajjar, vide judgment and decree dated 28.08.2009. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The defendant himself has admitted the execution of the agreement in the written statement itself. Moreover, the plaintiff himself appeared in the witness-box and examined Mangat Ram Saini, Advocate (PW-3), who has scribed the agreement and also examined Sub Registrar, who had registered the agreement. All of them have stated that the defendant had executed the aforesaid agreement. The agreement is registered one. Consequently, the onus was very heavy on the defendant to establish that he has received Rs.1,50,000/- only from the plaintiff and not R. S. A. No. 2950 of 2010 (O&M) 4 Rs.3,10,000/-, as recited in the agreement. However, the defendant has miserably failed to prove his said version. Mangat Ram Saini, Advocate (PW-3) is an independent witness. He has stated that the plaintiff paid Rs.3,10,000/- to the defendant in his presence. There is nothing on record to doubt the testimony of the said witness. Both the courts below, after appreciating evidence led by both the parties, have given concurrent finding against the defendant. The said finding, being based on proper appreciation of evidence, cannot be said to be perverse or illegal in any manner warranting interference in second appeal. Learned counsel for the appellant contended that the plaintiff has not examined any attesting witness of the agreement. However, the plaintiff was not required to examine any attesting witness, when the defendant in his written statement, admitted execution of the agreement. However, the plaintiff examined scribe of the agreement, who is an Advocate and is an independent witness and has stated that in his presence, the plaintiff had paid Rs.3,10,000/- to the defendant. On the other hand, the defendant could also examine the attesting witnesses of the agreement in support of his version. However, the defendant put in witness-box one attesting witness of the agreement, but did not present him for cross- examination and therefore, examination-in-chief of the said witness cannot be read in evidence. The defendant did not examine the other attesting R. S. A. No. 2950 of 2010 (O&M) 5 witness of the agreement. Thus, the defendant has failed to examine both the attesting witnesses of the agreement, whereas the plaintiff has examined scribe of the agreement and also the Sub Registrar, who registered the agreement. In addition thereto, there is admission of defendant himself regarding execution of the agreement as well as regarding his signatures on the agreement. The defendant's version that he had received Rs.1,50,000/- only from the plaintiff and not Rs.3,10,000/-, as recited in the agreement, is not supported by any evidence except self-serving bald and oral statement of the defendant himself. The said statement is not sufficient to rebut the plaintiff's evidence including recital in the agreement regarding payment of Rs.3,10,000/- by the plaintiff to the defendant. Even otherwise, the defendant's version is unreliable because even according to his own version, the plaintiff included the amount of bank loan and his own loan and also future interest on both the loan amounts to make the figure of Rs.3,10,000/- in the agreement. However, interest @ 2% per month on the loan amount of Rs.1,50,000/- for one year, as pleaded by the defendant himself, would come to Rs.36,000/-. Interest on bank loan amount of Rs.1,38,000/- @ 14½% per annum, as per mortgage deed executed by the defendant in favour of the bank, would also come to more than Rs.20,000/-. So, the total amount of both the loans and interest would add up to Rs.3,45,000/- approximately, whereas according to recital in the agreement, the plaintiff R. S. A. No. 2950 of 2010 (O&M) 6 had paid Rs.3,10,000/- to the defendant. So, the defendant's own version in this regard cannot be accepted. There is also no cogent evidence to prove that the defendant went to the plaintiff to return the loan amount with interest on 25.05.2001. The defendant has of course examined Bijender Kumar (DW-3) in support of his version. However, it is not difficult for a party to procure the services of one person, who may depose according to the choice of the party examining him. The plaintiff was present in the office of Sub Registrar on 25.05.2001 to get the sale deed executed in terms of agreement. It is not the version of the defendant or his witness Bijender Kumar that defendant had gone to the plaintiff in the office of Sub Registrar to repay the loan amount. Thus, the defendant's evidence in this regard is not reliable. Moreover, the defendant did not send any notice to the plaintiff that the plaintiff had refused to receive back the loan amount with interest. Consequently, recital in the impugned agreement that defendant had option of returning the earnest money of Rs.3,10,000/- does not come to the rescue of the defendant because admittedly, the defendant did not go to return the amount of Rs.3,10,000/-. On the other hand, the defendant's version that he went to return the loan amount of Rs.1,50,000/- with interest is also not proved. Learned counsel for the appellant also contended that the defendant has only 1/9th share and not 1/3rd share in 61 kanals 13 marlas land because his two sons are also coparceners with him in the total 1/3rd R. S. A. No. 2950 of 2010 (O&M) 7 share. The contention is untenable. The defendant is estopped from raising this plea having agreed to sell 1/3rd share in 61 kanals 13 marlas land to the plaintiff by way of impugned agreement. Moreover, there is also no evidence on record to prove that 1/3rd share in the aforesaid land recorded in the name of defendant is ancestral or coparcenary property of the defendant. In addition thereto, even while raising loan from the bank, the defendant mortgaged 1/3rd share of the aforesaid land. It is thus apparent that the aforesaid plea has been raised by the defendant only to defeat the legitimate claim of the plaintiff. For the reasons recorded herein above, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. August 06, 2010 ( L. N. MITTAL ) monika JUDGE