JUDGMENT :

(Sanjay Vashisth, J.)

CM-7403-C-2019

For the reasons set out in the application, the same is allowed. Consequently, the delay of 117 days in re-filing the accompanying appeal is condoned.

RSA-2679-2019

1. The present appeal has been filed by the plaintiff-Prahlad Singh (appellant herein) against the concurrent findings qua the dismissal of the suit filed by him.

2. Civil Suit No.379-CS, was instituted by plaintiff-Prahlad Singh against the defendant-Sewak Ram (respondent herein), for seeking a decree for possession by way of specific performance. In the said suit, plaintiff pleaded that defendant being owner of the house constructed over plot measuring 5 Marla consisting of two rooms, latrine, bathroom and boundary wall, situated within the Lal Laqir of Khan Mohammad, Fatehabad, Tehsil & District Fatehabad (for brevity, 'the house in question'), entered into an agreement to sell dated 08.04.2013, with the plaintiff for its sale in favour of the plaintiff, for a total sale consideration of Rs.4,00,000/-. Said agreement to sell was executed in the presence of one Arun Kumar (DW1) and Pawan Kumar (PW2). As per the pleaded case of the plaintiff, at the time of execution of the agreement to sell, earnest money of Rs.3,90,000/- was received by the defendant on 08.04.2013. Date of execution of sale-deed was fixed as 08.08.2013.

Agreement to sell dated 08.04.2013, was typed by one typist, and the amount of Rs.3,90,000/-, as earnest money was also received by the defendant in the presence of said typist. After typing of the agreement to sell, same was got attested by the notary public namely; Bansi Lal (PW4).

3. In the written statement filed by the defendant, it was pleaded that never any such agreement to sell was executed between the parties regarding the sale of the house in question. In fact, plaintiff, fraudulently got prepared the agreement to sell in question from the defendant. Fraud played by the plaintiff is itself clear because on the one hand, it is alleged that out of the total sale consideration of Rs.4,00,000/-, an amount of Rs.3,90,000/- as earnest money, was handed over to the defendant at the time of agreement to sell, but on the other hand, possession is still with the defendant.

It is also pleaded that defendant's son 'Mukesh Kumar' was working in the shop of the plaintiff for a monthly salary of Rs.12,000/- p.m., since January 2013. An amount of Rs.2,50,000/- was due towards the plaintiff regarding the salary of his son Mukesh Kumar. Plaintiff along with his brother in order to grab the said amount told the defendant in the month of April 2013, that his son has embezzled a sum of Rs.10.00-15.00 lakhs from their shop, and therefore, threatened to register a criminal case against the defendant's son 'Mukesh Kumar'. Thereafter, plaintiff obtained signatures of the defendant on some blank stamp papers, and took him to the shop of Arun Kumar, where, they also obtained the writing of the defendant on the said blank stamp papers regarding receiving of Rs.3,90,000/- from the plaintiff in the presence of said Arun Kumar.

4. On 16.08.2013, defendant received a legal notice from the plaintiff, and came to know of the forged agreement to sell, regarding the sale of his house in favour of the plaintiff, which is in question in the suit filed before the Trial Court. Immediately thereafter, defendant moved an application before the Superintendent of Police, Fatehabad, but no action was taken by the police thereon. Thereafter, one criminal complaint was also instituted by the defendant against the plaintiff.

5. Considering the pleadings of the parties, learned Trial Court vide order dated 21.04.2014, framed the following five issues:-

"1. Whether the plaintiff is entitled for symboli