Punjab-Haryana High Court
Richhpal Singh vs Sandhura Singh on 4 March, 2013
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No. 4292 of 2012 (O&M)
Date of Decision : March 04, 2013
Richhpal Singh
....Appellant
Versus
Sandhura Singh
.... Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. S.K. Garg Narwana, Senior Advocate with
Mr. Naveen Gupta, Advocate
for the appellant.
T.P.S. MANN, J.
Suit for possession by way of specific performance of agreement to sell dated 20.2.2006 filed by the appellant stands dismissed by both the Courts below. Hence, the present appeal by him under Section 100 of the Code of Civil Procedure.
The case, as set up by the appellant while filing the suit was that the defendant-respondent, who was having 1/4th share in land measuring 150 kanals 2 marlas situated in village Dher, Tehsil Tohana, District Fatehabad, agreed to sell his share of the land measuirng 37 kanals 10 marlas to the appellant on 20.2.2006 at the rate of Rs.5,00,000/- per acre. At the time of agreement to sell, the respondent Regular Second Appeal No. 4292 of 2012 (O&M) -2- received a sum of Rs.20,00,000/- as earnest money in the presence of the witnesses. The sale deed was to be executed by the respondent on 25.4.2006 after receiving remaining sale consideration. On the stipulated date, the appellant remained present in the office of Sub Registrar alongwith sufficient amount but the respondent failed to turn up. Accordingly, it was prayed that the possession of the suit land be given by way of specific performance of agreement to sell dated 20.2.2006.
The respondent opposed the suit wherein he denied ever agreeing to sell the suit property in favour of the appellant. He also denied that he had received an amount of Rs.20,00,000/- as earnest money or executed any agreement to sell. According to him, there was a dispute going on between him and Thakar Singh, father of the appellant for the last more than three years. Earlier, the respondent used to lend money to the father of the appellant on interest. He further alleged that his thumb- impressions appearing on the agreement were obtained by the police in February 2006, when he alongwith others had visited Police Post Meyond as one Mahender Singh moved an application against Teja Singh.
Both the Courts below, after hearing counsel for the parties and going through the evidence available on the record, held that the genuineness of the alleged agreement to sell was in Regular Second Appeal No. 4292 of 2012 (O&M) -3- doubt, more so, when there was prior enmity between the parties. Accordingly, the appellant stood non-suited in his suit for possession by way of specific performance of agreement to sell.
On 10.12.2012, when the appeal came up for preliminary hearing, counsel for the appellant submitted that during the pendency of the first appeal, the appellant had filed an application under Order XLI Rule 27 C.P.C. for leading additional evidence but the said application was never decided. Instead, lower appellate Court confined itself to the evidence already available on the record while dismissing the appeal.
In view of the stand taken by counsel for the appellant, this Court requisitioned the record of the lower appellate Court. The same has been received and on its examination, it is found that the application filed by the appellant for additional evidence was heard and allowed by the lower Appellate Court on 26.7.2012 and on the same date, the final arguments heard in the appeal and while pronouncing the judgment the appeal was dismissed with costs.
Counsel for the appellant has submitted that even though the lower appellate Court allowed the application for additional evidence but did not formally take on record the enquiry report dated 31.10.2006 of the Deputy Superintendent of Police, Regular Second Appeal No. 4292 of 2012 (O&M) -4- Fatehabad as no statement of the appellant was recorded that he had tendered in evidence the said enquiry report. It is also submitted that the enquiry report, copy of which has been placed on record of the present appeal as Annexure A-2, was also not taken into consideration by the lower appellate Court while deciding the appeal.
A perusal of the application preferred by the appellant under Order XLI Rule 27 C.P.C. before the lower appellate Court shows that he wanted permission to produce enquiry report dated 31.10.2006 of the Deputy Superintendent of Police. Reply to the same was filed by the respondent. After hearing arguments on the aforementioned application for additional evidence, the lower appellate Court vide order dated 26.7.2012, which is available on page 17 of its record, allowed the said application and pursuant thereto, counsel for the appellant placed on record the enquiry report as Mark 'A'. Once the application for additional evidence had been allowed and counsel for the appellant had placed on record the enquiry report, there was no further necessity of recording of formal statement of the appellant or his counsel that he was tendering in evidence the aforementioned enquiry report. It may also be mentioned here that while disposing of the appeal, the lower appellate Court, in para 15 of the impugned judgment, considered the said report in its proper perspective to hold that Regular Second Appeal No. 4292 of 2012 (O&M) -5- there was some money transaction between the respondent on the one hand and Thakur Singh, father of the appellant, on the other and in a dispute between Teja Singh and Mahender Singh, the respondent had participated in the proceedings which were conducted in the Police Station. Therefore, the appellant cannot be heard saying that the additional evidence was not taken into consideration by the lower appellate Court while disposing of his appeal.
As regards the stand of the appellant that the respondent had agreed to sell the suit property to him at the rate of Rs.5,00,000/- per acre and after receiving Rs.20,00,000/- from him had executed an agreement to sell, it may be noticed that the appellant did not care to produce the scribe of the agreement to sell Ex.P1.Only the scribe could have deposed about the contents of the agreement having been read over and explained to the executant. As the appellant withheld best evidence despite it being available, the Courts below were justified in drawing the adverse influence against him. Even otherwise, the agreement in question had not been written by a regular scribe. Had it been so, such a scribe would have made an endorsement in this regard in his register and the same would have ruled out the possibility of agreement in question being ante-dated. The agreement is also not written on regular stamp paper. On the other hand, special Regular Second Appeal No. 4292 of 2012 (O&M) -6- adhesive stamps were affixed on a plain paper which were purchased by the appellant and not by the respondent. The appellant also failed to explain as to how he had arranged a huge amount of Rs.20,00,000/-, said to have been paid as earnest money. Explanation of the appellant that he had not withdrawn the money from the bank or taken the same from the commission agent but it was lying at his house as his father had 12 acres of land, cannot be accepted. Further, the suit land was situated within the jurisdiction of Sub Tehsil Jakhal and the Sub Registrar used to sit at Jakhal, the document is shown to have been executed at Tohana.
In view of the above, no case is made out for any interference in the judgments passed by the Courts below whereby the suit for possession by way of specific performance of agreement to sell preferred by the appellant was dismissed. None of the substantial questions of law, formulated by counsel for the appellant, arises for determination.
The appeal is without any merit and, therefore, dismissed.
( T.P.S. MANN )
March 04, 2013 JUDGE
satish