RSA No.3848 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3848 of 2010 (O & M) Date of Decision: 14.03.2011. Bogha Singh and others ……Appellants Versus Prem Kumar …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Gautam Dutt, Advocate for the appellants. L.N. MITTAL, J (ORAL) CM No.11512-C of 2010 Allowed as prayed for. Main Appeal. Defendants-Bogha Singh etc. sons of Ishar Singh, who were successful in the trial Court, but have been unsuccessful in the lower appellate Court, have filed the instant second appeal. Suit was filed by respondent-plaintiff Prem Kumar against defendants/appellants for possession of suit land measuring 26 kanals by specific performance of agreement dated 16.08.2004. The RSA No.3848 of 2010 (O & M) - 2 - plaintiff alleged that the defendants agreed to sell the suit land to the plaintiff at the rate of Rs.3,25,000/- per acre and received Rs.3,25,000/- as earnest money and agreed to execute the sale deed upto 30.11.2004. Defendants executed the impugned agreement. The plaintiff always remained ready and willing to perform his part of the contract and he even appeared before Joint Sub-Registrar on 30.11.2004 and 01.12.2004 to get the sale deed executed in terms of the agreement, but the defendants committed breach thereof. Defendants broadly denied the plaint allegations. They alleged that they never agreed to sell the suit land to the plaintiff nor executed the impugned agreement. Defendants pleaded that they are agriculturists whereas plaintiff is commission agent. Defendants had been selling their crop through the plaintiff. The plaintiff had paid them Rs.45000/- in cash and some amount in kind by way of purchase of pesticides, fertilizers etc. Plaintiff obtained defendants’ thumb impressions on blank pronotes and account books, but never settled the account. Accordingly, defendant No.1 filed suit against plaintiff for rendition of account. Thereupon plaintiff approached the defendants and settled the accounts and a sum of Rs.1,10,000/- was found due from the defendants to the plaintiff. In this manner, plaintiff obtained thumb impressions of the defendants on blank pronote and then prepared impugned agreement in connivance with witnesses. Various other pleas were also raised. RSA No.3848 of 2010 (O & M) - 3 - Learned Additional Civil Judge (Senior Division), Barnala vide judgment and decree dated 12.10.2009 dismissed the plaintiff’s suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Barnala vide judgment and decree dated 15.05.2010 and plaintiff’s suit has been decreed for recovery of Rs.3,25,000/- with interest at the rate of 6% per annum from the date of agreement till recovery. Relief of specific performance of the agreement has, however, been declined to the plaintiff. Feeling aggrieved, defendants have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants states that he has deposited the costs amount of Rs.1000/- imposed on 10.02.2011 vide receipt No.853 dated 11.03.2011 in High Court Lawyers Welfare Fund. Learned counsel for the appellants vehemently contended that the trial Court rightly held that the impugned agreement was not executed by the defendants and a sum of Rs.1,10,000/- only was due from the defendants to the plaintiff. It was pointed out that Subhash Kumar Bansal PW-1, who scribed the impugned agreement, admitted that he did not enter the said agreement in the register of Deed Writer. It was also pointed out that plaintiff has not claimed additional amounts of Rs.80,000/- and RSA No.3848 of 2010 (O & M) - 4 - Rs.90,000/- which were also allegedly due from the defendants to the plaintiff. I have carefully considered the aforesaid contentions, but find no merit therein. Subhash Kumar Bansal PW-1 was not having license of Deed Writer while scribing the impugned agreement and, therefore, the question of making entry of the agreement in the register of the Deed Writer by him did not arise. Consequently his testimony cannot be doubted on this ground. As regards plea regarding amounts of Rs.80,000/- and Rs.90,000/-, it was not the case of either party in the pleadings and consequently, plaintiff’s case could not be discarded on the said ground. On the other hand, the plaintiff has examined scribe of the impugned agreement and also attesting witnesses Ujagar PW-2 and Rajinder Pal PW-3. The plaintiff also himself stepped into the witness box as PW-4. All of them have stated according to plaintiff’s version. This evidence is sufficient to prove due execution of the impugned agreement by the defendants. Statements of aforesaid witnesses of the plaintiff could not be impeached in cross- examination. On the contrary, defendants by their plea in the written statement have impliedly admitted their thumb impressions on the impugned agreement. In fact they have also not led any evidence to depict that the impugned agreement does not bear their thumb impressions. Statement of Bogha Singh defendant No.1 as DW-2 coupled with testimony of Ram Singh DW-1 is not sufficient to rebut RSA No.3848 of 2010 (O & M) - 5 - the cogent evidence led by the plaintiff. On the contrary, testimony of defendant No.1 himself is sufficient to discard the version of the defendants. Defendant No.1 stated that after he had filed suit against the plaintiff for rendition of accounts, the plaintiff called the defendants to settle the accounts and at that time, a sum of Rs.1,10,000/- was found due from the defendants to the plaintiff, who obtained thumb impressions of the defendants on blank papers which were subsequently converted into impugned agreement. It is completely improbable and unreliable that after defendant No.1 had filed suit against the plaintiff for rendition of accounts, the defendants still affixed thumb impressions on blank papers at the asking of the plaintiff. This testimony of defendant No.1 himself is, therefore, sufficient to demolish the entire version pleaded by the defendants. However, keeping in view the fact that the agreement had been executed to secure repayment of the due amount from the defendants, lower appellate Court has not granted the relief of specific performance of the impugned agreement to the plaintiff and has rather granted relief of recovery of the due amount of Rs.3,25,000/- with interest at very moderate rate of 6% per annum only. Consequently, judgment and decree of the lower appellate Court do not warrant interference in second appeal. Finding recorded by the lower appellate Court to the aforesaid extent in favour of the plaintiff-respondent is fully justified by the evidence on record and does not suffer from any perversity or illegality nor it is based on misreading or misappreciation of evidence. Consequently RSA No.3848 of 2010 (O & M) - 6 - the said finding does not warrant interference in second appeal. On the contrary, the said finding is supported by cogent reasons recorded by the lower appellate Court. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 14.03.2011 A.kaundal