JUDGMENT :

Nidhi Gupta, J.

Present Second Appeal has been filed by the defendant against the judgment of reversal dated 26.07.2016 passed by the learned Additional District Judge, Amritsar; whereby appeal filed by the respondent/plaintiff against the dismissal of his suit was, 'partly accepted and the impugned judgement dated 15.11.2014 is set aside and suit of the plaintiff is partly decreed granting the alternative relief of recovery of Rs.6,00,000/- to the plaintiff-appellant with interest at the rate of 9% per annum from the date of payment/agreement till its realisation. '

2. Brief facts of the case are that the respondent/plaintiff had filed a suit for possession by way of specific performance of the Agreement to Sell dated 21.07.2008 (Ex.P1) executed by the defendant in favour of the plaintiff in respect of suit land measuring 3K 8M/1700 sq.yds. @ Rs.1885 per sq.yd.; and consequential relief of permanent injunction; and in alternative, suit for recovery of Rs.12 lacs being double of the earnest money. It was pleaded in the plaint that the Agreement dated 21.07.2008 has been executed by the defendant in favour of the plaintiff for sale of suit land for total sale consideration of Rs.32,04,500/-. A sum of Rs.6 lakhs was received by the defendant from the plaintiff as earnest money at the time of execution of Agreement to Sell. Delivery of possession of the suit land was to be given to the plaintiff upon execution of Sale Deed on target date of 25.04.2009. It was the case of the plaintiff that although he had approached the defendant from time to time to execute the Sale Deed, the defendant always put off the matter on one pretext or the other. It was contended that the plaintiff possessed sufficient funds with him at all times to make payment of sale consideration. It was further pleaded that since target date of 25.04.2009 and 2 days thereafter were holidays, therefore on 28.04.2009 plaintiff had gone to the office of Sub Registrar alongwith sufficient funds for purpose of execution of Sale Deed. The plaintiff had waited for the defendant the whole day, but the defendant did not turn up. To show his bonafide, plaintiff had submitted an application alongwith his sworn Affidavit dated 28.04.2009 for marking his presence which is entered in the Tehsil Office Diary at Sr. No. 201 dated 28.04.2009. Even thereafter, despite requests, defendant had refused to execute the Sale Deed on one pretext or the other and instead threatened to alienate or transfer the suit land. With these pleadings, present suit was filed on 16.02.2011.

3. Vide judgment and decree dated 15.11.2014, learned trial Court had dismissed the suit of the plaintiff with costs on the grounds that although defendant had not denied the execution of Agreement to Sell (Ex.P1), and defendant had also not denied receipt of earnest money of Rs.6 lakhs, however, mere pleadings of readiness and willingness on behalf of the plaintiff were not sufficient to prove the same. It was held that positive evidence had to be led by the plaintiff to prove his readiness and willingness however, plaintiff did not come forward to depose his pleaded case in witness box. Rather he has only examined his GPA PW2 Mukhtiar Singh despite the fact that plaintiff was present in Amritsar at relevant time. Thus, adverse inference was drawn against the plaintiff. It was further held that PW2 was neither a witness to the Agreement, nor he was present at the time of execution of Agreement, or at the time when plaintiff marked his presence before the office of Sub Registrar; and therefore, he was not competent to prove the case of the plaintiff. Moreover, PW2 during his cross-examination had made certain statements against the pleaded case of the plaintiff to the effect that Agreement to Sell had been scribed by Deed Writer Gagan, who put his signature on the Agreement (Ex.P1). However, the Agreement did not reveal signature of any Deed Writer much less that of Deed Writer Gagan. PW2 had further stated