Regular Second Appeal No. 2273 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2273 of 2011(O&M) Date of decision : May 23, 2011 Chander Parkash ....Appellant versus Smt. Sarita ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Kulvir Narwal, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 6293.C of 2011 Allowed as prayed for. CM No. 6294.C of 2011 For reasons mentioned in the application which is accompanied by affidavit, delay of 46 days in refiling the appeal is condoned. RSA No. 2273 of 2011 Defendant Chander Parkash who was successful in the trial court but has been unsuccessful in lower appellate court has filed the instant second appeal. Respondent-plaintiff Sarita Devi filed suit against defendant- Regular Second Appeal No. 2273 of 2011(O&M) -2- appellant for possession of suit land measuring 385 square yards (1/30th share of 3 bighas 17 biswas pukhta) by specific performance of the agreement to sell dated 6.8.1991. The plaintiff alleged that defendant being owner in possession of the suit land agreed to sell the same to the plaintiff for Rs 2310/- and received Rs 1000/- as earnest money and executed impugned agreement dated 6.8.1991. Sale deed was to be executed within five months on payment of balance sale consideration. However, on 1.1.1992 (few days just before expiry of five months mentioned in the agreement) with mutual consent of both the parties, balance sale consideration of Rs 1310/- was paid by the plaintiff to the defendant vide separate receipt and it was stipulated that plaintiff can get the sale deed executed at any time. The plaintiff always remained ready and willing to perform her part of the contract but the defendant even after receiving legal notice from the plaintiff failed to execute the sale deed necessitating the filing of the suit. The defendant broadly denied the plaint averments. It was denied that he agreed to sell the suit land to the plaintiff or received earnest money or executed impugned agreement. He never signed impugned agreement. The agreement is result of fraud. Various other pleas were also raised. Learned Civil Judge (Junior Division), Rohtak vide judgment and decree dated 12.5.2010 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Rohtak vide judgment and decree dated 20.10.2010 and Regular Second Appeal No. 2273 of 2011(O&M) -3- thereby suit filed by the plaintiff stands decreed. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Plaintiff examined her father and attorney Sunder Lal Jain as PW1 who broadly stated according to her version. He was also present at the time of execution of the impugned agreement and even signed the impugned agreement on behalf of the plaintiff being her attorney. His statement stands unrebutted. The defendant did not dare to enter the witness box and therefore, adverse presumption arises against the defendant. The defendant also did not led any other evidence. Consequently, the lower appellate court rightly held that the impugned agreement was executed by the defendant who received Rs 1000/- as earnest money and subsequently the defendant received the balance sale consideration of Rs 1310/- on 1.1.1992 vide separate receipt. It may be added that Raghu Nath witness of the impugned agreement had since died and therefore, could not be examined by the plaintiff. It may be added that it was suggested to Sunder Lal Jain PW1 that he obtained signatures of defendant on blank papers to grab the defendant's land. This suggestion would imply that the defendant admitted his signatures on the impugned agreement and receipt. It has not been explained by the defendant as to on what pretext Sunder Lal Jain obtained signatures of the defendant on blank papers. There is no plea in the written statement to this effect nor there is any evidence on record that the defendant's signatures were obtained on blank papers. Regular Second Appeal No. 2273 of 2011(O&M) -4- Consequently, not only plaintiff's evidence stands unrebutted but also defendant's signatures on agreement and receipt stand admitted, therefore, execution of impugned agreement and receipt by the defendant has been rightly held proved by the lower appellate court. Learned counsel for the appellant vehemently contended that plaintiff has failed to depict that she has always been ready and willing to perform her part of the contract. The contention cannot be accepted. Entire sale consideration already stood paid to the defendant. Consequently, it was the defendant who was to execute the sale deed and therefore, it cannot be said that the plaintiff was not ready and willing to perform her part of the contract. It is not the case of the defendant that he ever asked the plaintiff to get the sale deed executed in terms of the agreement and the plaintiff refused to do so. On the contrary, the defendant even denied the execution of the impugned agreement. Consequently, it cannot be said that plaintiff was not ready or willing to perform her part of the contract. Learned counsel for the appellant also contended that notice sent by the plaintiff was received undelivered to the defendant and has been produced in evidence by the plaintiff and therefore, there was no question of refusal of performance of the agreement by the defendant. The contention cannot be accepted. It has come in the statement of Sunder Lal Jain PW1 that defendant refused to perform his part of the contract. Moreover, denial of the execution of the agreement itself in the written statement would also depict refusal on the part of the defendant to perform his part of the Regular Second Appeal No. 2273 of 2011(O&M) -5- contract. No question of law much less substantial question of law arises for adjudication in the instant second appeal. Finding recorded by the lower appellate court is fully justified by unrebutted evidence of the plaintiff and is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) May 23, 2011 Judge 'dalbir'