R.S.A. No.1710 of 2010 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S. A. No. 1710 of 2010 (O&M) Date of Decision: 08.12.2011 Niranjan Singh ...... Appellant Versus Dhara Singh ...... Respondent R.S. A. No. 606 of 2010 (O&M) Niranjan Singh ...... Appellant Versus Dhara Singh and another ...... Respondents CORAM: HON'BLE MR. JUSTICE A.N. JINDAL Present: Mr. G.P.S. Bal, Advocate for the appellant. ------- A.N. JINDAL. J. This judgment of mine shall dispose of two connected regular second appeals bearing No.1710 and 606 of 2010, against the common judgment and decree dated 07.12.2009 passed by Addl. District Judge-I, Ambala City, dismissing the two suits filed by the plaintiff/appellant for permanent injunction and the other for the possession by way of specific performance. Niranjan Singh-appellant filed a suit for possession by way of specific performance of agreement dated 31.05.1997. The stipulated date of execution and registration of the sale deed was fixed as 10.07.1997. Since the defendant/respondent failed to execute the sale deed within the prescribed time, therefore, the suit for specific performance was filed. However, the defendant in his R.S.A. No.1710 of 2010 (O&M) - 2 - written statement denied the execution of the agreement dated 31.05.1997 and receiving the amount of `4 lacs as earnest money. Similarly, another suit was filed by Niranjan Singh against Dhara Singh and Rajender Kumar for permanent injunction for restraining them from alienating or digging the earth or causing any such damage to the suit land alleging that respondent No.1 had started digging earth from the suit land. On 19.02.2001, when he had visited the suit land, he saw respondent No.2 digging the earth from the suit land. The said suit was also contested by respondent No.1 by stating that he has every right to use the land being owner of the suit land. Having considered the pleadings, the trial Court framed the following issues:- " 1. Whether the defendants had agreed to sell the suit land to the plaintiff vide agreement to sell dated 31.5.1997 at the rate of Rs.2,80,000/- per acre after receiving Rs.4,00,000/- as earnest money?OPP 2. Whether the plaintiff was willing and is still willing to perform his part of the contract?OPP 3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?OPP 4. Whether suit of the plaintiff is not maintainable in the present form?OPD 5. Whether plaintiff has concealed true and material facts from the court?OPD 6. Whether plaintiff has no locus-standi and cause of action to file the present suit against defendants?OPD R.S.A. No.1710 of 2010 (O&M) - 3 - 7. Whether plaintiff is estopped to file the suit by his own act and conduct?OPD 8. Relief." The trial Court had dismissed both the suits. Later on, on the application of the appellant, learned First Appellate Court framed the following additional issues: "(i) Whether the agreement to sell dated 31.5.1997 executed by the defendant in favour of the plaintiff for the sale of his land as an out come of fraud, mis-representation and by making forged and fabricated documents?OPD (ii) Whether the defendant signed the said agreement as a witness being the Lamberdar and the plaintiff dishonestly with malafide intention converted the same into agreement dated 31.5.1997? " However, when the order impugning the additional issues was challenged in revision then the High Curt directed the Court to proceed under order 41 Rule 25 CPC, if it required to frame such issues. Appellate Court also dismissed both the appeals by a common judgment. Arguments heard. Record perused. As far as ownership is concerned, there is no dispute that the defendant is the owner of the suit land. In order to establish the payment of earnest money, the plaintiff examined PW-1 Sanjeev Kumar Gupta, Deed Writer. During his cross examination, he had admitted that the payment of the amount as shown in the receipt Ex.P-2 was not made in his presence. Further, the plaintiff has stated that he is an electrician and has no sale tax number but he has been R.S.A. No.1710 of 2010 (O&M) - 4 - paying income tax. He has also stated that he did not show the amount of Rs.4 lacs in his income tax assessment. He has specifically stated that the amount was taken by him from one Amarnath son of Vijay Ram and in order to establish the said fact he examined Balbir Singh (PW-3), who has proved on record the statement on account of Amar Nath showing that he had drawn a sum of Rs.4,95,000/- from his account on 31.05.1997. As far as the statement of account of Amar Nath is concerned, the same shows the withdrawal of Rs.4,95,000/- but it is not established that the amount so withdrawn by Amar Nath was given to the plaintiff. Amar Nath being the best witness to prove that he had given the said amount to the plaintiff has not been examined by the plaintiff. With the non-examination of this witness, the advancement of Rs.4 lacs to the plaintiff is not established. It is the specific case of the defendant that the agreement to sell is forged and fictitious document and he did not receive the earnest money from the plaintiff. In this regard he had also complained to the Deputy Commissioner, Ambala, alleging that the plaintiff having obtained his signatures could misuse the same. While going through the entire evidence, it is clear that due execution of agreement of sale is not proved on record. The agreement is a written document, which is surrounded with suspicion as discussed above. The payment of earnest money has also not been established by plaintiff, as such the question of readiness and willingness of plaintiff does not arise. After going through the records as well as the case file, it transpires that both the Courts below have returned the concurrent R.S.A. No.1710 of 2010 (O&M) - 5 - findings of fact that the appellant/plaintiff has failed to prove the execution of agreement dated 31.5.1997 and payment of earnest money to defendant. Hence, suit of plaintiff for possession by way of specific performance of agreement is not maintainable and he has got no locus-standi and cause of action to file the present suit. Since no right is vested in the plaintiff quo the suit land, therefore, he is estopped from filing the suit for permanent injunction. No substantial question of law arises for determination. Consequently, both the appeals being devoid of any merit, are dismissed in limine. (A.N. JINDAL) 08.12.2011 JUDGE sarita