R. S. A. No. 3892 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3892 of 2008 Date of Decision : May 14, 2010 Moman .... Appellant Vs. Shish Pal .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. G. S. Gandhi, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant Moman has filed the instant second appeal having remained unsuccessful in both the courts below. Respondent Shish Pal filed suit for symbolical possession of the suit land by specific performance of agreement to sell dated 28.01.2005 alleging that the defendant, vide agreement dated 28.01.2005, agreed to sell the suit land measuring 12 kanals to the plaintiff for Rs.5,25,000/-. The defendant received Rs.2,46,000/- as earnest money at the time of the agreement, which is registered one. Balance sale price was to be paid at the time of execution and registration of the sale deed on or before 27.12.2005. The plaintiff went to the office of Joint Sub Registrar on 27.12.2005 for R. S. A. No. 3892 of 2008 2 getting the sale deed executed and registered. The plaintiff was having with him the balance sale price and expenses of sale deed etc., but the defendant did not turn up. The defendant raised plea of fraud. The defendant alleged that plaintiff was friend of defendant's son Naresh Kumar and was on visiting terms with them. The defendant used to borrow money from the plaintiff, for which the plaintiff used to obtain thumb impressions of the defendant on some papers. The said papers might have been used to prepare the agreement. The defendant had also been taken by the plaintiff in connection with sanction of loan for the defendant. The defendant never agreed to sell the suit land to the plaintiff nor received any earnest money. Various other pleas were also raised. Learned Civil Judge (Junior Division), Kaithal, vide judgment and decree dated 09.04.2008, decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Kaithal, vide judgment and decree dated 22.07.2008. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that the plaintiff has failed to prove the execution of the agreement by the defendant. The contention cannot be accepted. The agreement is registered R. S. A. No. 3892 of 2008 3 one. The plaintiff examined Registry Clerk with record of the registration of the agreement. The witness stated about the registration of the agreement. The plaintiff has also examined deed writer, who scribed the agreement. The plaintiff also examined Mehar Singh Numberdar – one of the witnesses of the agreement. He supported the plaintiff's case in examination-in-chief, although in cross-examination, he stated that his thumb impressions were affixed in Tehsil and no transaction took place in his presence and no agreement was written in his presence. The plaintiff himself has supported his own case. On the other hand, defendant himself appeared in the witness-box and examined another witness. The agreement stands registered. It has been entered in the registration record as well. There is endorsement of Joint Sub Registrar. The plaintiff himself has proved execution of agreement by the defendant. Scribe of agreement has also proved its execution. One attesting witness has also stated about execution of the agreement in examination-in-chief, although in cross-examination, said witness Mehar Singh (PW-3) stated that no transaction took place in his presence and no agreement was written in his presence. However, even in cross-examination, Mehar Singh maintained that his thumb impressions were affixed in Tehsil. Learned counsel for the appellant emphatically referred to the aforesaid cross- examination of Mehar Singh, Numberdar to contend that the agreement is not proved. Reliance in support of this contention has been placed on a R. S. A. No. 3892 of 2008 4 judgment of Division Bench of Orissa High Court in the case of Dasarathi Chamar and another vs. Balmukunda Das and others reported as AIR 1959 Orissa 38 (V 46 C 12), wherein it was observed that the evidence of identifier is very essential before any importance can be attached to the endorsement made by Sub Registrar. I have carefully considered this contention, but find no force therein. In this case, identity of defendant is not in dispute because the agreement in question bears photographs of both the parties as well as the witnesses. Consequently, it is amply proved that agreement was executed by defendant Moman and not by anybody else. Once identity of defendant as executant of agreement has been established, due weight has to be attached to the endorsement of Joint Sub Registrar regarding execution of agreement by the defendant. The said endorsement proves that the agreement was read over and explained to the defendant, who admitted the same to be correct. The statement of Mehar Singh (PW-3) in cross- examination, as mentioned above, cannot be attached undue importance because he has admitted that thumb impressions were affixed in Tehsil. It means that he attested the agreement at the time of its registration. He submitted that no transaction took place in his presence. It is, however, insignificant because earnest money was paid by the defendant to the plaintiff in the presence of Joint Sub Registrar at the time of registration of agreement. For the same reason, the statement of scribe of the agreement R. S. A. No. 3892 of 2008 5 that earnest money was not paid in his presence does not help the defendant because in fact, the earnest money was paid at the time of registration of agreement and not at the time, when it was scribed by the said witness. The onus was on the defendant to prove that the agreement is result of fraud. However, self-serving oral statement of the defendant is not sufficient to prove fraud or to rebut the plaintiff's cogent evidence including the fact that agreement is a registered agreement and earnest money of Rs.2,46,000/- was paid by the plaintiff to the defendant in the presence of Joint Sub Registrar at the time of registration of the agreement. Learned counsel for the appellant also referred to judgments of Hon'ble Supreme Court in the case of Rajeshwari vs. Puran Indoria reported as 2005 (4) R. C. R. (Civil) 36 and in the case of P. Chandrasekharan and others vs. S. Kanakarajan and others reported as 2007 (1) R. C. R. (Rent) 543, which relate to the interpretation of Section 100 of the Code of Civil Procedure (in short – CPC). No doubt, this Court has ample power to interfere in second appeal, if any substantial question of law arises for determination. In the instant case, however, no substantial question of law arises for determination because both the courts below, on appreciation of evidence, have come to concurrent finding that execution of the agreement by defendant stands fully proved. The said finding cannot be said to be perverse or illegal. On the other hand, the said finding is very reasonable view of the evidence and is fully justified by R. S. A. No. 3892 of 2008 6 sound reasons. At the risk of repetition, it has to be emphasized that the earnest money of Rs.2,46,000/- was received by the defendant before Joint Sub Registrar at the time of registration of agreement. However, the defendant has even denied the same. Statement of defendant cannot be relied upon. Statement of defendant's other witness Ratna (DW-2) also does not prove alleged fraud because said witness was not present at the time of execution or registration of the agreement. Learned counsel for the appellant also contended that plaintiff also sought alternative relief of recovery of money and therefore, in place of relief of specific performance of the agreement, relief of recovery of money may be granted. However, the plaintiff has not claimed any such alternative relief. Moreover, even if the alternative relief of recovery of money is claimed, it is not sufficient to decline the relief of specific performance of the agreement to sell to the plaintiff. Learned counsel for the appellant also contended that suit property is coparcenary property of the defendant and therefore, specific performance of the agreement cannot be allowed. The contention is completely frivolous and meritless. Firstly, no such plea has been taken in the written statement. Secondly, there is no cogent evidence to prove this fact. No documentary evidence has been placed on record to show that it is coparcenary property of the defendant. Moreover, defendant represented himself to be owner of the suit property and even if it is coparcenary R. S. A. No. 3892 of 2008 7 property, the defendant cannot resile from the agreement. Learned counsel for the appellant relied upon a judgment of this Court in the case of Dilbagh Singh vs. Gurdial Singh alias Dial Singh reported as 1998 (1) PLJ 589. In that case, the defendant was only the joint owner with other co-owners, but was not exclusive owner. It was held that agreement could be enforced regarding share of the defendant. In the instant case, if defendant is owner of less share than the suit land, it would be the plaintiff, who would suffer and not the defendant. For the reasons recorded herein above, I find no merit in the instant second appeal, which is accordingly dismissed in limine. May 14, 2010 ( L. N. MITTAL ) monika JUDGE