RSA No.2074 of 2009 ( 1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2074 of 2009 Date of Decision: 27.7.2009 Assu Ram ......Appellant Versus Tarsem Chand .......Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri P.C. Chaudhary, Advocate, for the appellant. HEMANT GUPTA, J. (Oral). The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for specific performance of agreement to sell dated 14.6.1999 in respect of the land measuring 8 kanals situated in village Gulhar, Tehsil Samana, District Patiala, was decreed. As per the plaintiff, the defendant agreed to sell his aforesaid land @ Rs.80,000/- per acre. A sum of Rs.40,000/- was paid as earnest money and the balance was to be paid at the time of registration of the sale deed, which was to be executed on 30.6.2000. Since the defendant did not execute the sale deed on the date agreed, the plaintiff filed the present suit for specific performance. The defendant denied the execution of the agreement and asserted that he used to sell his crops at the shop of the plaintiff and the RSA No.2074 of 2009 ( 2) plaintiff might have taken the thumb impressions and got the same fabricated on the alleged agreement to sell. The defendant never agreed to sell his land nor executed the alleged agreement to sell. To support the due execution of the agreement, the plaintiff appeared as his own witness as PW1 and examined PW2-Maghi Singh, attesting witness; PW4- Rattan Lal Garg, deed writer and also examined PW4 -Dr. Inderjit Singh, Handwriting expert. On the other hand, the defendant himself appeared as his own witness and supported the case set up in the written statement. On the basis of the evidence led by the parties, the learned trial Court returned a finding that the plaintiff has proved the due execution of the agreement dated 14.6.1999 Exhibit P.1 and also the payment of earnest money and consequently decreed the suit. The learned trial Court has found that the plea taken by the defendant that the agreement to sell is a result of fraud remained unsubstantiated as the defendant has not led any evidence in support of the said plea. The learned first Appellate Court has affirmed the finding recorded by the learned trial Court and consequently maintained the decree for specific performance. Before this Court, learned counsel for the appellant has vehemently argued that Maghi Singh PW2 and Rattan Lal Garg PW4, the attesting witness and the scribe have failed to identify the defendant and, therefore, their statements that the amount of the earnest money was paid to the defendant, cannot be believed. It is also argued that in the register of scribe, the previous entry is more than year old and the subsequent entry is also a year thereafter. Therefore the genuineness of the register is seriously in dispute. The argument raised by the learned counsel for the appellant RSA No.2074 of 2009 ( 3) are in the realm of re-appreciation of evidence. The attesting witness and the scribe have deposed that the earnest money was paid to the defendant in their presence. The defendant in the written statement has set up a plea of fraud in as much as it was pleaded by the defendant that he never intended to thumb mark the papers with intention to sell the land. Except the bald statement of the defendant, there is no evidence in support of such plea. Apart from such evidence, the appellant has not been able to prove any surrounding circumstance, which could throw doubt on the plea of the plaintiff in respect of the execution of the agreement. Mere fact that the previous and subsequent entries in the register of the scribe, are one year apart by itself may not be sufficient to return a finding that the agreement itself is a fraudulent document. In the absence of any surrounding circumstance, the finding recorded by the Courts below in respect of the due execution of the agreement and payment of earnest money, cannot be disputed in second appeal as the same is a finding of fact. Learned counsel for the appellant has then argued that the decree for specific performance shall cause acute hardship to the defendant, who is an agriculturist as against the plaintiff, who is a commission agent. Since the plaintiff has claimed alternative relief, therefore, the Court should have granted alternative relief of damage rather than decree for specific performance on 28.8.2000. I do not find any merit in the aforesaid argument as well. The appellant has not pleaded hardship in the written statement. The stand of the appellant was that of denial of agreement. Once the appellant has denied the agreement and has not pleaded hardship, the appellant cannot be permitted to raise an argument in the second appeal for the first time that alternative RSA No.2074 of 2009 ( 4) relief should have been granted. Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 27-07-2009 ds