R.S.A. No. 4657 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- R.S.A. No. 4657 of 2010 (O&M) Date of decision:- 6.12.2010 Babu lal ... Appellant Versus Ram Sarup ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Sanjay Mittal, Advocate, for the appellant. Gurdev Singh, J (oral) The appellant/defendant–Babu Lal has preferred this second appeal against the judgment and decree dated 25.10.2010 passed by Additional District Judge, Narnaul, vide which the appeal preferred by him against the judgment and decree dated 29.4.2009 passed by Additional Civil Judge (Sr. Division), Narnaul, decreeing the suit of the respondent/plaintiff- Ram Sarup for possession of the land in dispute measuring 2 Kanals situated in village Hamidpur consisting of four rooms and a boundary wall, by way of specific performance of the agreement dated 16.8.2002, was dismissed. The case of the plaintiff is that the defendant was the owner in possession of the land in dispute wherein he had constructed four rooms and a boundary wall. The defendant agreed to sell that land in his favour for ` 1,80,000/- vide agreement dated 16.8.2002 and received ` 1,70,000/- in cash. Sale deed was to be executed on 16.8.2003. The defendant failed to to so in spite of the fact that he always remained ready and willing to R.S.A. No. 4657 of 2010 (O&M) -2- perform his part of the contract. Even prior to 16.8.2003, he had been asking the defendant to receive balance sale consideration of ` 10,000/- and to execute the sale deed in his favour, but he failed to do so. As 16.8.2003 was Saturday and 17.8.2003 was Sunday, so 18.8.2003 was fixed for execution of the sale deed in his favour and he assured him to do so. He remained present in the office of the Sub Registrar, Narnaul, on that date, but the defendant did not turn up. The suit was contested by the defendant. In his written statement he denied the contentions of the plaintiff. He, inter alia, pleaded that he had already sold the property in dispute to one Rameshwar, vide sale deed dated 10.11.2003, who is coming in possession thereof as owner. He never agreed to sell this property to the plaintiff and the agreement put forward by the plaintiff is the result of fraud and mis-representation. There were old dealing between them. He had recovered more interest from the plaintiff as a result of which his signatures were obtained on plain papers. By using those plain papers the agreement has been fabricated. On the pleadings of the parties, following issues were framed by the learned trial Court:- 1. Whether the defendant agreed to sell his land to the plaintiff as per terms and conditions mentioned in the agreement to sell dated 16.8.2002 executed by the defendant in favour of plaintiff as alleged in the plaint?OPP 2. Whether the plaintiff was ready and willing to perform his part of contract as alleged in the plaint?OPP 3. Whether the defendant executed the sale deed in respect of suit R.S.A. No. 4657 of 2010 (O&M) -3- property in favour of Rameshwar as alleged in para no.1 of the written statement if so to what effect?OPD 4. Whether the plaintiff has no locus standi to file the present suit?OPD 5. Whether the suit is liable to be dismissed with special costs?OPD 6. Relief. To succeed in the suit the plaintiff examined himself as PW1, Abhey Singh PW2 and Sat Narain Bhardwaj Deed Writer PW3. On the other hand the defendant entered the witness box DW6 and examined Ghisa Ram DW1, Singh Ram Deed Writer DW2, Ravi Shankar Bhardwaj, Deed Writer DW3, Lachhu Singh DW4 and Ram Chander DW5. After going through the evidence so produced on the record and hearing learned counsel for both the sides, the learned trial Court decided all the issues in favour of the plaintiff and resultantly decreed his suit. I have heard learned counsel for the defendant. It has been submitted by learned counsel for the defendant that the doubt in the genuineness of the agreement is created as a result of the contradictions between the recitals of the agreement and the pleadings of the plaintiff. It has been pleaded in the plaint that the possession was never delivered and that is why the suit has been filed for possession by way of specific performance. Whereas it is recited in the agreement that the possession was delievered on the date of execution thereof. He also submitted that the plaintiff failed to prove the due execution of the agreement as the attesting witness examined by him is his neighbor and it R.S.A. No. 4657 of 2010 (O&M) -4- was never stated by deed writer that the parties were personally known to him. He also tried to challenge the findings of the lower Courts regarding the readiness and willingness of the plaintiff to perform his part of contract on the ground that the plaintiff failed to prove that he was having the balance sale consideration with him for getting the sale deed executed in his favour. According to him from these submissions it can easily be said that the substantial questions of law are involved in the present appeal. The contents of the agreement were read over by learned counsel for the defendant. As per the recital thereof, the possession of land in dispute was given to the plaintiff and the possession as owner was to be given to him at the time of the execution of the sale deed; which clearly implies that only symbolic possession was given to him. Such like recital is usually incorporated in the agreement even when the actual possession is not delievered. It cannot be said that there is any such contradiction in the agreement to sell and pleadings of the plaintiff. The statement of the attesting witness cannot be ignored merely on the ground that he is neighbour of the plaintiff and in the absence of any other substance having been brought on the record that he had animus to depose against the defendants. The statement of the scribe was never treated as the statement of attesting witness by the lower Courts and as such the arguments so advance by learned counsel for the defendant are devoid of merit. The statement of the plaintiff made before the trial Court as witness was not assailed by the learned counsel for the defendant during his cross- examination. In that statement he categorically stated that he had been asking the defendant to execute the sale deed in his favour after receiving R.S.A. No. 4657 of 2010 (O&M) -5- the balance sale consideration of ` 10,000/- and that when he went to the office of Sub Registrar, he was having that amount with him. Therefore, it cannot be said that the findings of the lower Courts regarding due execution of the agreement and the readiness and willingness of the plaintiff to perform his part of contract are based upon the mis-reading of the evidence and are perverse. No substantial question of law arises in the present appeal and the same is, therefore, dismissed. December 6, 2010 (Gurdev Singh) tripti Judge