Punjab-Haryana High Court
Lachhman Son Of Shri Molu Ram vs Jangsher Son Of Shri Molu Ram on 13 January, 2009
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
R.S.A. No. 11 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.S.A. No. 11 of 2009
Date of Decision: 13.1.2009
Lachhman son of Shri Molu Ram
...Appellant.
Versus
Jangsher son of Shri Molu Ram
...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
PRESENT: Mr. R.S. Mamli, Advocate for the appellant.
*****
AJAY KUMAR MITTAL, J.
The defendant has approached this Court by way of present regular second appeal against the judgment and decree dated 22.9.2008 passed by the first appellate court affirming that of the trial court dated 16.11.2005 vide which the suit of the plaintiff for possession by way of specific performance of the agreement to sell dated 1.4.1998, was decreed.
Succinctly stated the facts of the case are that on 1.4.1998 the defendant entered into an agreement to sell the land measuring 5 marlas being 1/4th share of 1 kanal 2 marlas comprised in khewat/ khatauni No. 188/275, khasra No. 224 (Gair Mumkin Bara) situated in R.S.A. No. 11 of 2009 -2- village Balachaur, Hadbast No. 312, Tehsil Jagadhri, District Yamunanagar (hereinafter referred to as the "suit property") for a sale consideration of Rs.10,000/- and had received the entire amount of the sale consideration. The sale deed was agreed to be executed and registered on or before 1.6.1998 and later on the same was extended by mutual consent upto 15.11.1998. It was pleaded that the plaintiff had always been ready and willing to perform his part of the contract. It was further pleaded that on 13.11.1998 and 16.11.1998 (14.11.1998 and 15.11.1998 were holidays) the plaintiff went to the office of concerned Sub Registrar but the defendant did not turn up and the plaintiff had sworn affidavits on both the days. He requested the defendant many a times to execute the sale deed but he refused to do so which gave rise to the filing of the suit for possession by way of specific performance of the agreement dated 1.4.1998 directing the defendant to execute the sale deed of the suit property in his favour.
Upon notice, the defendant filed a written statement raising various preliminary objections. It was pleaded that the defendant never entered into an agreement to sell the suit property. It was further pleaded that two civil suits were pending between the parties and papers regarding partition of the suit property and compromise were prepared on 1.4.1998. The defendant being an illiterate person put his thumb impression on the said papers at the behest of his brother and those papers might have been used by the plaintiff for preparing a false agreement. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made.
The trial court vide judgment and decree dated 16.11.2005, R.S.A. No. 11 of 2009 -3- on appreciation of the oral as well as the documentary evidence led by the parties decreed the suit of the plaintiff holding that he was entitled for possession by way of specific performance of the agreement to sell dated 1.4.1998. Further, the trial court while holding that the plaintiff had been ready and willing to perform his part of the contract, directed the defendant to get the sale deed executed and registered within a period of two months from the date of decree. Feeling aggrieved, the defendant plaintiff approached the lower appellate court which vide judgment and decree dated 22.9.2008 affirmed the findings recorded by the trial court and dismissed the appeal. Hence the present appeal.
I have heard the learned counsel for the appellant and perused the record with his assistance.
Learned counsel for the appellant submitted that the findings recorded by the courts below being contrary to the evidence available on record are perverse. According to the learned counsel, when the findings are based on misreading and misappreciation of the evidence and also contrary thereto, a substantial question of law arises for consideration of this Court.
Both the courts on appreciation of the testimonies of the witnesses and the documentary evidence, had recorded a finding of fact that the plaintiff had proved the execution of the agreement to sell dated 1.4.1998 as well as the payment of Rs.10,000/- as sale consideration to the defendant and that he was ready and willing to perform his part of the contract whereas the defendant had failed to do so. No illegality or perversity could be pointed out in the findings of fact recorded by the courts below except that the learned counsel made valiant efforts to R.S.A. No. 11 of 2009 -4- persuade this Court to re-appreciate the evidence and arrive at a different conclusion than that of the courts below, but the same is outside the purview of Section 100 of the Code of Civil Procedure. It is only the perverse findings based on misreading and misappreciation of the evidence that can be corrected by this Court in the second appeal.
In this case, no question of law much less a substantial question of law arises for consideration of this Court.
In view of the above, finding no merit in this appeal, the same is hereby dismissed with no order as to costs.
January 13, 2009 (AJAY KUMAR MITTAL) gbs JUDGE