Pleadings—Evasive denial with regard to the specific averments—Pleadings in the corresponding paragraph are deemed to be admitted.

Mr. Amit Rawal J. (Oral) - Appellant - defendant No.1 is aggrieved of the concurrent findings of facts and law, whereby, civil suit No.302 of 1997 seeking possession by way of specific performance of the agreement to sell dated 16.08.1993 and consequential relief of permanent injunction, has been decreed by both the Courts below.

2. Mr. Aakash Singla, learned counsel appearing on behalf of appellant/defendant No.1, in support of grounds of appeal has raised the fo llowing arguments:-

i) Both the Courts below have erroneously arrived at a finding that agreement to sell dated 16.08.1993 was admitted, whereas, it does not show that there has been gross misreading of the written statement.

ii) The respondents failed to prove the payment of earnest money of ‘90,000/-, much less, did not even examine the handwriting expert vis-a-vis signatures of Attorney of the appellant.

iii) The readiness and willingness was conspicuously absent as the suit was filed on 16.01.1997, whereas, the target date for execution and registration of the sale deed was 15.01.1994. In this regard, no explanation has come forth in the pleadings and evidence.

iv) The affidavit dated 15.01.1994 has been attested by the Oath Commissioner and his register has not been brought on record, much less, the same has been lost. All these factors, if read in conjunction, there would not have been any occasion for the Court below to exercise the discretionary powers under Section 20 of Specific Relief Act, 1963 (hereinafter referred to as “1963 Act”).

3. He further submits that on the target date, the respondents were not present with the entire balance sale consideration and thus, urges this Court for setting aside the findings rendered by both the Courts below by fo rmulating the substantial questions of law as culled out in the memorandum of appeal.

4. Mr.G.S.Nagra, learned counsel appearing on behalf of respondents No.1 to 5 submits that Power of Attorney dated 12.04.1993 executed by vendor in favour of Kewal Singh had never been cancelled or revoked. Kewal Singh acted on the basis of the power given in the Attorney as an agent and he appeared in the witness box and admitted his signatures. The agreement to sell had the signatures of two attesting witnesses, namely, Gurmit Singh son of Harbans Singh and Gurmit Singh son of Avtar Singh. Though Gurmit Singh son of Harbans Singh has been examined by the defendants as DW1 and another Gurmit Singh as PW2. The testimony of the attesting witnesses, if read in entirety, would leave no manner of doubt that agreement to sell has been proved, much less, the payment of earnest money. Kewal Singh also admitted the signatures on the Power of Attorney. There has been a categoric pleading in paragraph 10 of the plaint regarding admission in the suit by the appellant for execution and registration of the sale deed but in the written statement, there has been a vague and evasive denial, therefore, the plaintiffs cannot be thrown out on the ground of readiness and willingness, much less, assume it for an argument sake, agreement to sell is deemed to have been denied, the defendants cannot take up the plea of readiness and willingness, in view of the ratio decidendi culled out by this Court in two judgments rendered in Lal Chand vs. Tek Chand 2013(5) RCR (Civil) 104 and Jora Singh vs. Lakwinder Kumar and others [2010(3) Law Herald (P&H) 2517], 2011 (1) RCR (Civil) 130. He further submits that in pursuant to agreement to sell, sale deed has been executed and only possession has to be taken and thus, urges this Court for affirming the findings rendered by both the Courts below as no substantial question of law arises for adjudication of the present appeal.

5. I have heard learned counsel for the parties and appraised the paper book and of the view that there is no force and merit in the submissions of Mr. Aakash Singla, for the following reasons:-

6. It would be apt to reproduce paragraph 10 of the plaint and corresponding paragraph of the w