Regular Second Appeal No.2071 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2071 of 2009 Date of decision: September 03, 2009 Ruldu Singh …..APPELLANT Versus Raj Kumar …..RESPONDENT CORAM: HON’BLE MR JUSTICE T.P.S.MANN PRESENT:Mr Rakesh Gupta, Advocate T.P.S.MANN, J. Suit filed by the plaintiff-respondent for possession by way of specific performance of agreement to sell was decreed by Additional Civil Judge (Sr. Division), Guhla on 17.10.2007 for recovery of an amount of Rs. 1,50,000/- alongwith proportionate costs and interest at the rate of 9% per annum from 21.6.1999 till the decision of the suit and at the rate of 6% per annum from the date of the decision of the suit till realization. Aggrieved of the same, the defendant-appellant filed an appeal, which was partly allowed by modifying the findings of the trial Court to the extent that the plaintiff- respondent would be entitled to recover Rs.1,50,000/- from the defendant-appellant along with interest at the rate of 6% per annum from 21.6.1999 till realization. Still not satisfied, the defendant is before this Court by way of second appeal filed Regular Second Appeal No.2071 of 2009 -2- under Section 100 of the Code of Civil Procedure. According to the plaintiff, the defendant entered into an agreement to sell his agricultural land, measuring 11 kanals 14 marlas in his favour along with all the rights appurtenant thereto at the rate of Rs. 1,80,000/- per acre. The defendant received an amount of Rs.1,50,000/- as earnest money at the time of execution of agreement to sell dated 21.6.1999. It was agreed that the sale deed would be executed and registered by 15.12.2000 and the possession would also be delivered at the said time. The plaintiff contacted the defendant in his village on 13.12.2000 and asked him to get the sale deed executed and registered in his favour. The defendant assured that he would come present in the office of Sub Registrar, Siwan on 15.12.2000 for getting the sale deed executed and registered in his favour. However, the defendant did not turn up on 15.12.2000, though the plaintiff kept on waiting for him in the office of Sub Registrar, Siwan, alongwith the balance sale consideration, amount for purchasing the stamp papers and registration expenses. He also got his presence marked by moving an application dated 15.12.2000 before the Sub Registrar. He got issued a registered notice through his counsel calling upon the defendant to come present in the office of Sub Registrar. However, the defendant did not turn up. Hence, the Regular Second Appeal No.2071 of 2009 -3- suit for specific performance of agreement to sell. While filing his written statement, the defendant pleaded that the plaintiff ran a commission agent shop in the grain market of Cheeka, at which shop he had been bringing his crop for sale. After selling the wheat crop for the year 1999, the defendant stopped bringing his produce to the said shop as the plaintiff played some foul game against him. The defendant was an illiterate person and taking advantage of the said fact, the plaintiff got prepared the alleged agreement to sell in question fraudulently. No such agreement to sell was ever executed by him in favour of the plaintiff. He did not sign on the same. It was result of fraud and misrepresentation and without consideration. Hence, he prayed for dismissal of the suit. Both the learned Courts below, while decreeing the suit for recovery only, held that after receiving the amount of Rs. 1,50,000/- in cash, the defendant signed the agreement dated 21.6.1999. However, the plaintiff failed to show that he really intended to purchase the suit land and in such circumstances, it was not equitable to grant relief of specific performance in his favour on the basis of the aforementioned agreement. Instead, the plaintiff was entitled to recover the amount of Rs.1,50,000/- paid as earnest money. On the basis of the evidence available on the record, Regular Second Appeal No.2071 of 2009 -4- it stands established that there was some money transaction between the parties and the agreement dated 21.6.1999 was executed only to secure the payment of the money. Though the defendant pleaded that he was illiterate, yet while appearing before the trial Court, he stated that he had not put his signatures on the agreement in question. When the witnesses of the plaintiff were in the witness box, it was never suggested to them that the defendant did not know how to sign. Apparently, it was an after thought on the part of the defendant to deny his signatures with a view to wriggling out of the commitment made in the agreement. The execution of the agreement stood mentioned in the register maintained by PW-3 Rajinder Kumar, Document Writer at Sr. No.134. While appearing as PW-7, the plaintiff stated that he had withdrawn the amount of Rs. 1,50,000/- from the account of the firm and there was an entry in the bahi also, which he could produce. Despite the same, the defendant did not make any request to the Court for issuance of a direction to the plaintiff for production of the bahi. The non-examination of Handwriting Expert by the plaintiff was not fatal to his case as the defendant specifically denied that he did not know how to sign. Though the learned trial Court while decreeing the Regular Second Appeal No.2071 of 2009 -5- suit for recovery of Rs.1,50,000/- had awarded interest at the rate of 9% per annum from 21.6.1999 till the decision of the suit and for the period subsequent thereto at the rate of 6% per annum, yet the learned lower Appellate Court reduced the interest for the pre-litigative stage by holding that the plaintiff would be entitled to recover the amount of Rs.1,50,000/- with interest at the rate of 6% per annum from 21.6.1999 till realization. No case is made out for granting any further relief to the defendant in respect of interest awarded on the decretal amount. The concurrent findings of facts arrived at by the learned Courts below are found to be based upon correct appreciation of the material evidence available on the record. These findings are neither perverse nor suffering from any illegality or infirmity. Therefore, they cannot be upset, more-so in a second appeal, which is maintainable only on some substantial question of law and not otherwise. None of substantial questions of law, as formulated by learned counsel for the appellant, arises for determination. In view of the above, the appeal is without any merit and therefore, dismissed. September 03, 2009. (T.P.S.MANN) Pds. JUDGE