RSA No.2136 of 2016 (O&M)

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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND

HARYANA AT CHANDIGARH

RSA No.2136 of 2016 (O&M)

Date of Decision.29.11.2018

Dile Ram (since deceased) through LRs & others ....Appellants

Vs

Mohinder Singh (since deceased) through LRs & others .Respondents

CORAM:HON'BLE MR. JUSTICE AMIT RAWAL

Present:

Mr. Keshav Partap Singh, Advocate

for the appellant.

Mr. Sanjiv Gupta, Advocate

for the respondents.

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AMIT RAWAL J. (ORAL)

This regular second appeal at the instance of the

appellants-defendants is directed against the judgment and decree

dated 30.01.2016 passed by the Additional District Judge, Karnal

whereby the suit of the respondent-plaintiff claiming specific

performance of agreement to sell dated 26.03.2004 dismissed by the

trial court, has been decreed.

Plaintiffs instituted the suit on 16.02.2006 claiming

specific agreement to sell dated 26.3.2004 in respect of land

measuring 35 kanals 19 malras agreed to be sold @ `2.50 lakhs per

acre against the payment of `6,25,000/- as earnest money. The

aforementioned agreement was witnessed by two attesting witnesses

Ranbir and Mahavir, scribed by deed writer PW4 and notorized by

PW5 Lalit Chopra, Notary. The stipulated date for execution and

registration of the sale deed was 31.12.2004. It was stated that on the

PANKAJ KUMAR

2019.01.09 11:44

I attest to the accuracy and

integrity of this document

RSA No.2136 of 2016 (O&M)

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said date, defendant and his sons torn the document of agreement to

sell and in this regard, FIR was lodged which ultimately led to their

conviction under Sections 420, 477, 506 and 120-B IPC, Ex.P4.

Concededly both the accused have since expired. The trial Court

rejected the plea by holding that plaintiffs have not been able to prove

transaction of `6,25,000/- and declined the discretionary relief.

However, the lower Appellate Court reversed the aforementioned

finding of the trial Court and decreed the suit.

Mr. Keshav Partap Singh, learned counsel appearing on

behalf of the appellants in support of memorandum of appeal raised

the following submissions:-

(i) Parties had not entered into transaction of agreement

to sell but it was meant for loan. Respondents-plaintiffs

had not established that both the parties had intended to

sell and purchase the land in dispute. One of the

attesting witness has not been examined. Mahavir, PW1

and deed writer PW4 were not consistent in the cross-

examination. Plaintiffs had not stepped into the witness

box.

(ii) Defendants were served with legal notice dated

07.12.2005 to appear within one month before the Sub

Registrar but the plaintiff has not established on record

his presence on 07.01.2006, therefore, readiness and

willingness was conspicuously absent.

(iii) PW5 Lalit Chopra in cross-examination spilled the

beans and created doubt with regard to entry in the

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integrity of this document

RSA No.2136 of 2016 (O&M)

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register.

(iv) In order to establish that the plaintiff did not have

sufficient funds or not withdrawn the alleged amount,

DW5 Accountant of the firm was examined. He had

brought the record of the ledger w.e.f. 01.04.2004 to

2006.

I have heard learned counsel for the appellant, appraised

the paper book and of the view that there is no force and merit in the

submissions of learned counsel for the appellant. PW1 son of

plaintiff denied that Jaswant son of defendant ever sold agricultural

produce but the aforementioned statement has not been belied by the

statement of DW2 and DW4. Cross-examination of DW4 had proved

to be a backlash as the factum of withdrawal of `6,25,000/- has been

proved. One line here and there in the cross-examination of Notary

would not help the appellants-defendants, for, Ex.PW5/A register

brought on record reflected that against entry at Sr. No.433, the

factum