Lal Ram v. Aajid Masih

Hon'ble Mr. Justice L.N. Mittal Present : Mr. Gagan Oberoi, Advocate, for the appellant L.N. Mittal, J. (Oral) Lal Ram defendant having lost in both the courts below has filed the instant second appeal. Aajid Masih plaintiff-respondent filed suit against the defendant-appellant alleging that the defendant agreed to sell the suit land measuring 1 kanal 11 marlas along with house constructed thereon to the plaintiff for total consideration of Rs 45,000/- and received Rs 31,000/- as earnest money and executed agreement to sell dated 30.5.2003. Sale deed was to be executed on 4.9.2003. However, on 4.9.2003 date for execution of the sale deed was extended to 20.4.2004 and further amount of Rs 5500/- was paid by the plaintiff to the defendant and a new agreement dated

4.9.2003 was also executed on the basis of earlier agreement dated Regular Second Appeal No. 3773 of 2010 -2-

30.5.2003. The plaintiff attended the office of Sub Registrar on 20.4.2004 to get sale deed executed in terms of the agreement but the defendant did not turn up. The plaintiff also sent notice dated 20.5.2006 to the defendant requiring him to come to the office of Sub Registrar on 5.6.2006 for executing sale deed. The plaintiff went there on 5.6.2006 with requisite money but the defendant did not turn up. The defendant, thus, committed breach of the agreement although plaintiff always been ready and willing to perform his part of the contract. Accordingly, the plaintiff sought specific performance of the agreement. The defendant denied the plaint allegations in toto. The defendant denied having executed impugned agreement dated 30.5.2003 or having received any earnest money. It was pleaded that suit property was worth more than Rs 2 lacs and therefore, there was no question of agreeing to sell it for Rs 45,000/- only. Agreement dated 04.9.2003 was also denied. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Ratia vide judgment and decree dated 8.9.2009 decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Fatehabad vide judgment and decree dated 24.7.2010. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff led sufficient evidence to prove both the agreements dated 30.5.2003 and 4.9.2003. On the other hand, the defendant simply appeared in the witness box himself and examined two Regular Second Appeal No. 3773 of 2010 -3- more witnesses in support of his version. The defendant in the evidence came out with a new version that he had purchased buffaloes from the plaintiff and when he could not pay the price thereof, the plaintiff obtained thumb impressions of the defendant on some papers as security for the said amount. However, no such version was pleaded in the written statement and the aforesaid evidence is afterthought version of the defendant. On the contrary, defendant admitted his thumb impressions on the agreements and the said thumb impressions were also proved by Fingerprint Expert examined by the plaintiff as witness. No plea of fraud has been taken by the defendant in the written statement. Consequently, the defendant's evidence beyond pleadings has been rightly ignored and the plaintiff's version has rather been substantiated by the defendant's evidence. Execution of both the agreements dated 30.5.2003 and 4.9.2003 has been duly proved by the plaintiff. Learned counsel for the appellant contended that suit was filed for specific performance of agreement dated 4.9.2003 whereas the suit has been decreed for specific performance of agreement dated 30.5.2003. This is only a clerical error or accidental slip or omission on the part of the trial court. It is the plaintiff's case that agreement dated 4.9.2003 is in continuation of agreement dated 30.5.2003. It is correct that in agreement dated 4.9.2003 there is no reference to agreement dated 30.5.2003 but bare perusal of both the agreements reveals that vide agreement dated 30.5.2003 date for execution of sale deed was fixed for 4.9.2003 and it was on

4.9.2003 that the said second agreement was executed. It is, thus, manifest that agreement dated 4.9.2003 was in continuation of agreement dated Regular Second Appeal No. 3773 of 2010 -4-

30.5.2003. The receipt of amount of Rs 36,500/- in agreement dated

4.9.2003 has been mentioned but even according to the plaintiff's version, the said amount included amount of Rs 31,000/- paid by agreement dated

30.5.2003. Learned counsel for the appellant also contended that Narvir Singh PW2 stated that he was present when the deal was finalized whereas plaintiff stated that the deal was finalized by him with defendant in the presence of Darshan Singh. However, this is not a material contradiction. On the other hand, Narvir Singh apparently meant to depose that he is witness of the agreement which he referred to as finalization of the deal. In fact execution of the agreement was culmination or finalization of the deal as stated by this witness. Learned counsel for the appellant also contended that according to Narvir Singh PW2, the deal was finalized for Rs 31,000/-. However, apparently Narvir Singh stated so because amount of Rs 31,000/- was paid as earnest money at the time of agreement dated 30.5.2003. The aforesaid contentions relate to appreciation of evidence which is within the domain of the courts below. Lower appellate court is final court of fact. Both the courts below after appreciating evidence have come to concurrent finding against the appellant. The said finding cannot be said to be perverse or illegal warranting interference in second appeal. The said finding is supported by evidence on record and cogent reasons have been assigned by the courts below to arrive at the said finding. No question of law much less substantial question of law arises for determination in the instant second appeal. The fate of the case rests on Regular Second Appeal No. 3773 of 2010 -5- finding of fact. The appeal is, thus, found to be without any merit and is accordingly dismissed in limine. September 22, 2010 'dalbir' ( L.N. Mittal ) Judge