Mewa Singh v. Sewa Singh (dead and represented

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Raj Mohan Singh, Advocate for the appellant. Mr. V. B. Aggarwal, Advocate for LR of respondent no.1. * * * L. N. MITTAL, J. (Oral) : Defendant no.2 Mewa Singh has filed the instant second appeal after the defendants (appellant and proforma respondent no.2/defendant no.1) remained unsuccessful in both the courts below. Suit was filed by Sewa Singh – plaintiff (since deceased and represented by his legal representative) alleging that defendant no.1, vide agreement to sell dated 28.02.1997, agreed to sell half share of the suit plot to the plaintiff for Rs.40,000/- and received entire sale consideration and R. S. A. No. 4343 of 2008 2 executed the aforesaid agreement and delivered possession of half share of the plot to the plaintiff, who was already owner in possession of remaining half share of the plot. Defendant no.1 also executed General Power of Attorney in favour of the plaintiff on the same day, but later on, defendant no.1 got the same cancelled on 05.05.2003. Plaintiff gave notice to defendant no.1 for execution of the sale deed, but defendant no.1 did not do so and committed breach of the contract. Defendants have raised construction over the suit plot without any authority. Accordingly, the plaintiff sought possession of the suit plot by specific performance of the agreement along with other necessary reliefs. Defendants contested the suit. They did not dispute the impugned agreement. However, it was pleaded that defendant no.2 is having a plot towards north of the suit plot. Defendant no.2 is running dairy since the year 1996 in his own plot as well as in the suit plot and was already in possession of the suit plot. Plaintiff agreed to sell the suit plot to defendant no.2 for Rs.3,20,000/- and received Rs.50,000/- as earnest money. Sale deed was to be executed up to 31.05.2003, failing which the sale consideration was to be Rs.3,50,000/-. Defendant no.2 raised construction of boundary wall and filled earth in the suit plot by spending Rs.2,00,000/- Plaintiff has become dishonest because of increase in the price of the suit plot and has refused to execute the sale deed. Various other pleas were also raised. R. S. A. No. 4343 of 2008 3 Learned Civil Judge (Junior Division), Kurukshetra, vide judgment and decree dated 12.06.2008, decreed the plaintiff's suit. First appeal preferred by both the defendants (who are brothers) has been dismissed by learned Additional District Judge, Kurukshetra vide judgment and decree dated 30.08.2008. Feeling aggrieved, defendant no.2 only has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. As noticed herein above, execution of impugned agreement Ex.PW-6/B dated 28.02.1997 by defendant no.1 in favour of the plaintiff is not disputed and has also been proved by cogent evidence. The entire sale consideration stood paid by plaintiff to defendant no.1 at the time of agreement itself. The whole case of the defendants rests on writing Ex.D-1. Learned counsel for the appellant vehemently contended that vide this writing, the plaintiff agreed to sell the suit plot to defendant no.2 for Rs.3,20,000/- and received Rs.50,000/- as earnest money. It was contended that the plaintiff has admitted that he had scribed this writing and it has also been signed by him as well as by defendant no.2-appellant and consequently, case of appellant is fully proved. Learned counsel for plaintiff-respondent no.1 vehemently contended that this writing was written by the plaintiff regarding the sale of a shop by Sultan Singh to defendant no.1 and this writing has nothing to do R. S. A. No. 4343 of 2008 4 with the suit plot. I have carefully considered the rival contentions. Perusal of writing Ex.D-1 reveals that at the top of it, `10.11.2002' has been written with earnest money of Rs.50,000/-. Date of registry (sale deed) has been mentioned to be 31.05.2003, then figure of Rs.3,20,000/- is mentioned, then it is mentioned that price after 31.05.2003 would be Rs.3,50,000/-. The writing has been signed by the plaintiff with date underneath as 20.08.2002. It has also been signed on the other side by defendant no.2. From this writing, it cannot be said by any stretch of imagination that plaintiff agreed to sell the suit plot to defendant no.2. No particulars of any property whatsoever have been mentioned in this document nor it is mentioned that plaintiff has agreed to sell any property to defendant no.2. From this writing, it could be the other way round also that defendant no.2 agreed to sell some property to the plaintiff. It is nowhere mentioned as to who is the vendor and who is the purchaser. In fact, this document does not even mention that it is an agreement to sell. Moreover, version of defendants is that defendant no.2 had paid Rs.50,000/- to the plaintiff vide this writing. However, this version is falsified by the writing itself. The writing purports to be dated 20.08.2002. The amount of Rs.50,000/- as earnest money was to be paid on 10.11.2002. However, defendants' evidence is that the amount of Rs.50,000/- was paid on

20.08.2002 at the time of execution of this writing, but this plea of the R. S. A. No. 4343 of 2008 5 defendants is falsified by the writing itself. No amount whatsoever is recited to have been paid through this writing on 20.08.2002. On the contrary, even interpreting this writing very liberally in favour of defendants, it may at best be said that earnest money of Rs.50,000/- was to be paid on 10.11.2002. It is not the case of the defendants that they ever paid the said amount of Rs.50,000/- on 10.11.2002 or on any other date except at the time of this writing, but at the time of writing, no amount is recited to have been paid. At the risk of repetition, it has to be highlighted that this document Ex.D-1 does not mention any property at all and consequently, it cannot be said that this document pertains to the suit plot. For the reasons aforesaid, I find no infirmity, much less illegality or perversity in the impugned judgments of the courts below. Concurrent finding recorded by both the courts below is fully justified by the evidence on record and is not shown to be perverse or illegal in any manner. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is bereft of any merit and is accordingly dismissed. October 29, 2010 monika ( L. N. MITTAL ) JUDGE