08.04.2025 Ashok Kum k Kumar and another v. Rajinder K der Kumar
Case Details
RSA-4472-2014 (O 014 (O&M) 1 [128] IN THE HIGH COURT OF PU AT CHANDIGAR IGARH OF PUNJAB AND HARYANA RSA-4472 Date of De 4472-2014 (O&M) of Decision : 08.04.2025 Ashok Kum k Kumar and another …Appellants versus Rajinder K der Kumar ….Respondent Coram : HON’BLE MR. JUSTICE PA PANKAJ JAIN Present: ocate Ms. Shubreet Kaur, Advocate for the appellants. Mr. Ashok Bhardwaj, Advocat for the respondent. dvocate *** PANKAJ J KAJ JAIN, J. (ORAL) [1] [2] Defendants are in second appe appeal. Plaintiff filed a suit for p for possession by way of specif specific performanc rmance. As per the pleadings raise s raised in the plaint, the defendant endants- appellants llants agreed to sell the suit property roperty as detailed out in the plaint laint in favour of th ur of the plaintiff vide agreement to sel t to sell dated 27.10.2004. The plot wa plot was agreed to o be sold @ 1375/- per sq. yard q. yard. At the time of execution o ution of agreement ment to sell, sum of Rs.2 lacs was cs was paid as earnest money by th by the plaintiff to tiff to the defendants in the presence resence of attesting witnesses. Partie Parties agreed to g d to get the sale deed executed on ed on or before 30.04.2005. Plainti
Legal Reasoning
Plaintiff remained p ined present in the office of the S the Sub Registrar on 29.04.2005 a 2005 as 30.04.2005 .2005 was a Saturday. Plaintiff claim f claims that he remained present in th nt in the office of th e of the Sub Registrar with balance s lance sale consideration. Message wa age was RAJNEESH SHARMA 2025.05.03 12:05 I attest to the accuracy and integrity of this document conveyed t eyed to the defendants to come presen present and execute sale deed in favou n favour RSA-4472-2014 (O 014 (O&M) 2 of the plain e plaintiff. However, they failed to t d to turn up. Plaintiff thereafter aga er again came prese present in the office of Sub Registrar istrar on 02.05.2005. Defendants aga again failed to co d to come present for execute the sale d e sale deed. [3] [4] Suit was contested by the defen defendants. Execution of agreement to se t to sell was denied. The defendan fendants claimed th ed that on 26.04.2004, they agr y agreed to sell their vacant lan nt land ad-measuri easuring 583 sq. yards in favour of Ha of Harpreet Singh son of Ajit Singh fo ingh for a considera sideration of Rs.2500/- per sq. yard. yard. They received earnest money o oney of Rs.2,50,000 ,000/-. Possession was delivered to red to the defendants. Sale deed was s to be executed ecuted on or before 25.04.2006. The The agreement to sell propounded b nded by the plaintif laintiff is illegal, null and void, forg d, forged, fabricated and unauthorize thorized document. ment. The same was manufactured b ured by the plaintiff in connivance wi ce with the attestin ttesting witnesses. Defendants need s needed some money for marriage o riage of their daugh daughter. On the asking of the pla the plaintiff, defendants signed certa certain blank pape papers as a security to return the a the amount with interest @ 12% p 2% per annum. m. The defendants never had any any intention to sell the plot to th t to the plaintiff. [5] On the basis of the pleadings, f - ings, following issues were framed:- “1. Whether defendants agre agreed to sell the property described bed in the head note of plaint v int vide agreement dated 27.10.2004 004 in PP favour of plaintiff ? OPP 2. Whether defendants have ave received earnest money of Rs.2 la s.2 lacs D from the plaintiff? OPD 3. Whether plaintiff has alw s always ready and willing and is st is still ready and willing to perfo erform his part of contract? OPP 4. Whether plaintiff is entitl ntitled to relief of possession by way way of RAJNEESH SHARMA 2025.05.03 12:05 I attest to the accuracy and integrity of this document specific performance of ag PP of agreement dated 27.10.2004? OPP 5. Whether plaintiff is entitle ntitled to permanent injunction as pray prayed for? OPP 3 RSA-4472-2014 (O 014 (O&M) 6. Whether suit is not mainta PD aintainable in the present form ? OPD 7. Whether plaintiff has got s got no cause of action to file the prese resent suit? OPD 8. Whether plaintiff has not s not come to the Court with clean hand hands, if so its effect ? OPD 9. Whether plaintiff had kn d knowledge of agreement to sell an ll and possession of suit plot lot between defendants and Harpre rpreet Singh proposed vendee, if e, if so its effect? OPD 10. Whether suit is bad for for non joinder of necessary partie arties? OPD” 11. Relief. ” [6] The two attesting witnesses esses to the agreement to sell, Saru l, Sarup Chand and d and Bhim Sain were examined as P ed as PW-1 and PW-2. Scribe-Parvee Parveen Kumar G ar Garg appeared as PW-4. PW- -2/Bhim Sain though tendered h ered his testimony b ony by way of affidavit (Exhibit PW ibit PW-2/A) but never came forth fo orth for cross-exam examination. His statement was not as not led into the evidence. Trial Cou al Court after analy analyzing evidence threadbare answe answered Issue No.1 in favour of th r of the plaintiff, h tiff, holding that the plaintiff suc ff successfully proved execution o tion of agreement ment (Exhibit P-1). Issue No.2 wa .2 was also decided in favour of th r of the plaintiff, ho tiff, holding that the payment of earn of earnest money of Rs.2,00,000/- wa was proved. ed. Court of the first instance f nce further found that the plainti plaintiff successfully essfully proved his readiness and willi d willingness and decreed the suit file uit filed by the plai e plaintiff. The aforesaid findings r ings returned by the Court of the fir the first instance sta nce stand affirmed by the Lower Appe Appellate Court. [7]
Legal Reasoning
Ms. Shubreet Kaur, counsel f unsel for the appellants-defendants ha s has assailed the led the findings recorded by the Cour e Courts below. It has been contende ntended that the pla the plaintiff failed to prove the agreem agreement to sell. PW-1/Sarup Chan Chand being close close relative of respondent-plaintif s. PW- laintiff is an interested witness. PW RAJNEESH SHARMA 2025.05.03 12:05 I attest to the accuracy and integrity of this document RSA-4472-2014 (O 014 (O&M) 4 2/Bhim S Sain despite being related to the p the plaintiff opted not to appear in th ar in the witness bo ess box. Neither Stamp Vendor no or nor Typist were examined. Eve . Even Stamp Ven endor was not produced. She s e submits that testimony of PW f PW-4 cannot be ot be relied upon. He is practicing a cing as a Notary Public. He failed ailed to produce hi uce his register. In Civil Appeal N eal No.34 of 2012, there are finding findings recorded a ded against him of being negligent ligent in performing his functions tions as Notary Pub ry Public. The witness being tainted inted ought not have been relied upo d upon. She further further submits that even readiness a ness and willingness of the plaintiff intiff is under cloud r cloud, as no evidence was led by the by the plaintiff to prove the same. Sh e. She further sub er submits that value of property has y has escalated in the last two decade decades. Thus, gran , grant of main relief of specific pe ific performance would be against inst the equity. In y. In order to hammerforth her conten contentions, she relies upon ‘R. Sham Shama Naik versu versus G. Srinivasan, SLP (Civil) Civil) No.12933 of 2021, decided o ided on 28.11.2024 .2024, U.N. Krishnamurthy versus ersus A.M. Krishnamurthy, (2023) 1 023) 11 SCC 775, 775, Ritu Saxena versus J.S. G .S. Grover (2019) 9 SCC 132 an 32 and Nanjappan appan versus Ramasamy’, 2015 (2) 5 (2) RCR (Civil) 224. [8] Per contra, Mr. Bhardwaj, co aj, counsel for the plaintiff-responde pondent has drawn a rawn attention of this Court to the tes the testimony of plaintiff, who appeare ppeared as PW-3. H 3. He submits that plaintiff in his te his testimony proved his readiness an ess and willingness ngness. Not even a suggestion was pu was put to him by the plaintiff. Furth Further attention is tion is drawn to Para No.10 of the pla the plaint, wherein the plaintiff pleade pleaded his readine eadiness and willingness. In response sponse thereto in the written statemen atement, apart from from bare denial, no plea has been rai een raised by the defendants. [9] Mr. Bhardwaj, counsel for the for the plaintiff-respondent submits th its that once the the defendants pleaded that the agre e agreement to sell propounded by th by the RAJNEESH SHARMA 2025.05.03 12:05 I attest to the accuracy and integrity of this document plaintiff wa tiff was result of fraud and misrepres srepresentation, the onus was upon th pon the RSA-4472-2014 (O 014 (O&M) 5 defendant dants not only to plead the particula rticulars of fraud, but also to prove th rove the same by le by leading cogent evidence. He fu He further submits that testimony o ony of Handwritin writing Expert DW-1/Ms. Rana Ban a Bansal cannot be looked into as th o as the same is aga against the pleaded case of the defe defendants. [10] I have heard counsel for the r the parties and have carefully gon ly gone through rec gh records of the case. [11] The defendant in her written s itten statement claims that blank pape k papers signed by h d by her have been misutilized. It is . It is to create agreement to sell. Th . The defendant dants had no intent to execute agree agreement to sell. The blank pape papers were signed signed only as a security qua the loan loan availed by the defendant(s) fro from the plaintiff laintiff. Thus, the signatures are not not disputed by the defendants. On th On the other hand hand, Handwriting Expert-Ms. Rana . Rana Bansal examined by defenda fendant has opined opined that the signatures on the ag the agreement to sell are not of th t of the defendant dants. [12] The evidence is thus, not in ot in sync with the pleaded case of th e of the defendant dants. Once defendants took specifi specific plea of fraud, defendants w were required to d to plead the details thereof. Ap f. Apart from bald assertion that th that the agreement ment was manufactured using the bla the blank singed stamp papers, there there is no detail pl etail pleaded. Opinion of the Handwr andwriting Expert does not support th port the pleaded cas ed case. In view of this, Courts belo elow rightly held that the plaintif laintiffs successfully essfully proved execution of the agreem agreement to sell. [13] Coming on the issue of readi f readiness and willingness in terms o erms of Section 16 on 16 of the Specific Relief Act, there there can’t be any denial to the settle e settled proposition osition of law that it is the plaintif laintiff, who has to plead and prov d prove readiness a ness and willingness. In Para No.10 No.10 of the plaint, plaintiff pleade pleaded RAJNEESH SHARMA 2025.05.03 12:05 I attest to the accuracy and integrity of this document readiness a ness and willingness. The same w me was reiterated by plaintiff in h f in his RSA-4472-2014 (O 014 (O&M) 6 testimony a ony as PW-3. Not even a suggestion estion was put to him by the defendan fendants that he was he was not ready and willing to perfor perform his part. As per agreement ment to sell propo propounded by the plaintiff, the , the agreed date was 30.04.200 4.2005. 30.04.2005 .2005 being Saturday, plaintiff claim claims to have appeared and remaine emained present bef before the office of Sub Registrar, gistrar, Sangrur, along with the balanc balance sale consid consideration on 29.04.2005 and t and thereafter again on 02.05.200 5.2005. Affidavits avits to the said effect have been pro een proved on record. The instant su tant suit was filed filed promptly on 10.05.2005. In view n view of the aforesaid facts, this Cou is Court does not fi not find any reason to interfere in we in well reasoned pure findings of fa s of fact recorded by ded by the Courts below. [14] Pure findings of facts have be s below. ave been recorded by the Courts below There bein e being no question of law involved, olved, re-appreciation of evidence an nce and substitution titution of the opinion formulated by ed by the Courts below, is beyond th ond the scope of ins e of instant appeal. [15] Scope of second appeal under under Section 41 of the Punjab Cour Courts Act, 1918 c 1918 came up for consideration befor n before Apex Court in Randhir Kau ir Kaur Versus Pri us Prithvi Pal Singh & Ors. 2019(17 019(17) SCC 71 wherein it was held a held as under :- RAJNEESH SHARMA 2025.05.03 12:05 I attest to the accuracy and integrity of this document “14. The Division Bench of Pu f Punjab and Haryana High Court in rt in a judgment reported in Sadhu v. M v. Mst. Kishni, 1980 AIR (Punjab) 8 ab) 85 set aside the judgment of the lea e learned Single Bench in an intra cou court appeal in terms of the provision isions of law as it existed prior to 197 1976, and held as under: "12. The scope of second ond appeal as envisaged by section 10 n 100 of the Civil Procedure C re Code and section 41 of the Punja unjab Courts Act has been a ma a matter of judicial scrutiny a number ber of times by this court as we s well as by the final court, that is, t is, the RSA-4472-2014 (O 014 (O&M) 7 Supreme Court of India. T ia. The learned counsel for the appella pellant has actually made a r a reference in this regard to Det Detty Paitabhiramaswami v. S v. S. Hanymayya [AIR 1959 Suprem preme Court 57.], Madamanchi nchi Ramappa v. Muthaluru Bojjapp jjappa [AIR 1963 Supreme Cou Court 1633.], Bithal Dass Khanna nna v. Hafiz Abdul Hai [1969 S 69 S.C. Notes 481.] and Afsar Shaikh aikh v. Soleman Bibi [(1976) 2 S ) 2 SCC 142: AIR 1976 Supreme Cou Court 163.]. These pronouncem ncements; in a nutshell, lay down th n that there is no jurisdiction to on to entertain a second appeal on t on the ground of a erroneous ous finding of fact, however gross oss or inexecusable the error ma r may seem to be. Nor does the fact th ct that the finding of the first first appellate Court is upon som some documentary evidence ma e make it any the less a finding of fact. fact. A Judge of the High Cour ourt has, therefore, no jurisdiction ion to interfere in second appea ppeal with the findings of fact given ven by the first appellate court urt based upon an appreciation of t of the relevant evidence. Their L eir Lordships have further observed th ed that the only ground on which hich such an appeal can be said to to be competent is where there ere is an error in law or procedure an re and not merely on an error on r on a question of fact. xx xx xx
Decision
14. In view of the above d ve discussion, we are clearly of the vie e view that the learned Single gle Judge exceeded his jurisdiction ion in setting aside the finding dings of the fact on issue No. 2. T 2. The provisions of section 100 100 being clear and unambiguous, the , there was no scope for interfe terference with those findings. We th e thus allow the appeal and set set aside the judgment of the learn earned Single Judge and affirm irm the judgment and decree passed sed by the District Judge. The pa e parties are, however left to bear the r their own costs. 15. A perusal of the aforesa resaid judgments would show that t at the jurisdiction in second appeal is l is not to interfere with the findings ings of fact on the ground that finding dings are erroneous, however, gross oss or inexcusable the error may seem seem to be. The findings of fact will al ll also include the findings on the ba e basis of documentary evidence. T e. The RAJNEESH SHARMA 2025.05.03 12:05 I attest to the accuracy and integrity of this document jurisdiction to interfere in the se he second appeal is only where there here is RSA-4472-2014 (O 014 (O&M) 8 an error in law or procedure an e and not merely an error on a questio estion of fact.” [16] The said dictum was further el ther elaborately echoed by three Judge Judges Bench in h in Satyender and Ors. Versus Saro s Saroj and Ors. 2022 AIR (Suprem upreme Court) 473 t) 4732 as under: “xxxx xxxx xxxx 17. Be that as it may, though ugh the requirement of formulation of n of a substantial question of law was was not necessary, yet Section 41 of t of the Punjab Courts Act, requires th es that only such decisions are to to be considered in second appeal wh l which are contrary to law or to som some custom or usage having the for e force of law or the court below ha have failed to determine some materi aterial issue of law or custom or usa usage having the force of law. Ther herefore, what is important is still still a "question of law". In other wo words, second appeal is not a foru forum where court has to re-examine ine or re-appreciate questions of fa of fact settled by the Trial Court and the d the Appellate Court......…” [17] In view of above, finding no m g no merit in the present second appea appeal, the same is ame is ordered to be dismissed. All pending miscellaneous app us application(s), if any, stand dispose posed (PANKAJ JAIN) JUDGE Whether speaking/ reasoned Whether reportable : : Yes/No Yes/No [18] off. .2025 08.04.2025 ‘R. Sharma' RAJNEESH SHARMA 2025.05.03 12:05 I attest to the accuracy and integrity of this document