JUDGMENT :

VIRINDER AGGARWAL , J .

1. The appellant-defendant has preferred this Regular Second Appeal (here-in-after to be referred as “RSA”) impugning the judgment and decree dated 24.02.1997 passed by the learned First Appellate Court, whereby the appeal filed by the respondent-plaintiff was allowed, the judgment and decree of the learned Additional Senior Sub-Judge, Rajpura, were reversed, and the suit instituted by the respondent-plaintiff was decreed.

2. The brief factual matrix reveals that the respondent-plaintiff instituted a suit for specific performance of an agreement to sell dated 05.04.1990. It was contended that Naib Singh and his brother, Ajaib Singh, had entered into an agreement for the sale of a two-thirds share in the suit land for a total consideration of `1,55,000/- per acre for a total of four bighas. Pursuant to the agreement, earnest money of `45,000/- was paid, of which `22,500/- was adjusted against the half share sold by Ajaib Singh. It was further averred that the defendant subsequently reneged on the contract, motivated by an increase in market value, thereby necessitating the present suit.

3. The defendant contested the suit, asserting that the respondent- plaintiff was a property dealer colluding with others to defraud him. It was alleged that he was coerced into executing a power of attorney, purportedly to facilitate the sale, while no consideration was actually remitted to him. The defendant further contended that Ajaib Singh alone received the earnest money and that the signatures of the defendant were obtained through misrepresentation and undue influence by the plaintiff and other property dealers at Zirakpur Chowk. The defendant also denied attending the office of the Sub-Registrar, Dera Bassi, on 14.06.1990, and claimed that both he and his brother were harassed to secure their signatures on certain documents, thereby praying for dismissal of the suit.

4. The respondent-plaintiff, in replication, categorically denied the assertions and objections raised in the written statement, reiterating and reaffirming all material averments contained in the plaint. Following a careful and exhaustive scrutiny of the pleadings, documents, and rival contentions, the learned Trial Court crystallized the points in controversy and, for the purposes of a systematic and legally coherent adjudication, proceeded to frame the issues for determination:-

1. Whether the defendant executed an agreement on 5.4.90 to sell the suit land in favour of the plaintiff? OPP.

2. Whether the plaintiff remained and is ready and willing to perform his part of the sale contract in suit? OPP.

3. Whether the plaintiff is entitled to decree for possession of the suit land by way of specific performance of the sale agreement insuit? OPP.

4. Relief.

5. Following the framing of issues, both parties were afforded full opportunity to adduce evidence. Upon hearing arguments and perusal of the evidentiary material, the learned Additional Senior Sub-Judge, Rajpura, dismissed the suit. Aggrieved by this judgment and decree, the respondent-plaintiff preferred an appeal, which was allowed by the learned Additional District Judge, Patiala, vide judgment and decree dated 24.02.1997. The resultant order prompted the filing of the present Regular Second Appeal. The appeal was admitted for hearing vide order dated 21.08.1998.

5.1. Upon service of notice, the respondent appeared through Sh. Som Nath Saini, Advocate. The records were requisitioned and made available on DMS for perusal.

7. As regards the scope of second appeal, it is now a settled proposition of law that in Punjab and Haryana, second appeals preferred are to be treated as appeals under Section 41 of the Punjab Courts Act, 1918 and not under Section 100 CPC. Reference in this regard can be made to the judgment of the Supreme Court in the case of Pankajakshi (Dead) through LRs and others V/s Chandrika and others, (2016)6 SCC 157 followed by the judgments in the case of Kirodi (since deceased) thr