Full Judgment
Regular Second Appeal No.4099 of 2014(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.4099 of 2014(O&M) Date of Decision: August 11, 2014 Devender Gupta .......Appellant Versus Babu Lal Bhardwaj and others .......Respondents CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA Present: Present Mr.PK Chugh, Advocate for the appellant. Mr.Sanjay Vij, Advocate for the respondents/caveators. <><><> TEJINDER SINGH DHINDSA, J.
CM No.9520-C-2014 For the reasons stated in the application, prayer is allowed. Delay condoned.
2. CM disposed of. RSA No.4099 of 2014 3. Plaintiff-appellant is in second appeal before this Court having remained unsuccessful in both the Courts below.
4. Plaintiff-appellant filed a suit for specific performance against Nand Kishore (since deceased) to execute and get registered the sale-deed in respect of the land in terms of agreement to sell dated 15.9.2000 on receipt of balance sale- consideration and expenses towards the stamp and registration charges and to deliver possession of the suit land to the plaintiff. It was pleaded that initially on 23.5.2000, an agreement to sell SUSHAMA RANI MALIK201408.22 16:30 I attest to the accuracy and integrity of this document Regular Second Appeal No.4099 of 2014(O&M) 2 had been entered into between the plaintiff-appellant and Nand Kishore as regards sale of 1/4th of the suit property for a total consideration of `14 lacs. Plaintiff was stated to have paid a sum of `1,40,220/- to the defendant under such agreement and the sale-deed was to be executed within a period of three months. On 22.8.2000, the plaintiff is stated to have gone to the office of the Sub Registrar with the remaining sale-consideration as also stamp and registration expenses, but as Nand Kishore had not obtained the requisite Income Tax Clearance Certificate, sale- deed was not executed and it had been reduced into writing and the sale-deed would now be executed on or before 15.9.2000. Plaintiff is stated to have paid a further sum of `1,40,220/- in cash. Further pleadings were that on 15.9.2000, the plaintiff remained present in the office of Sub Registrar along with balance sale-consideration, but yet again the sale-deed could not be executed on account of non-obtaining of requisite clearance from the income tax authorities. Pursuantly, agreement dated 15.9.2000 was again entered into and the date of execution of the sale-deed was extended to 14.9.2001 and the plaintiff is stated to have paid yet another sum of `2,20,000/- in cash. Plaintiff further averred that the requirement of obtaining income tax clearance certificate was subsequently dispensed with and as such, the defendant had been called upon to execute the sale-deed. On 13.9.2001, the plaintiff is stated to have got a demand draft of `8,08,310/- prepared in the name of Nand Kishore (deceased) i.e. towards the balance sale-consideration of the land in question. The defendant having failed to execute the sale-deed the suit for SUSHAMA RANI MALIK201408.22 16:30 I attest to the accuracy and integrity of this document Regular Second Appeal No.4099 of 2014(O&M) 3 specific performance in respect of agreement to sell dated 15.9.2000 was instituted on 7.10.2001.
5. Suit was contested and the legal heirs of defendant No.1 (Nand Kishore) filed a written statement denying the execution of the agreement to sell.
6. Upon the pleadings of the parties, the following issues were framed by the trial Court:
1. Whether the plaintiff is entitled for specific performance of agreement to sell dated 23.5.2000 on the grounds as alleged?.OPP2 Whether the plaintiff was/is ready and willing to perform his part of contract?. OPP3 Whether the plaintiff has no cause of action to file the suit?. OPD4 Whether the suit is not maintainable in the present form?. OPD5 Whether the plaintiff has no locus standi to file the suit?. OPD6 Whether the suit is time barred?. OPD7 Relief.
7. Vide judgment dated 9.6.2012 passed by the Civil Judge, Senior Division, Gurgaon, suit filed by the plaintiff was dismissed. Being dissatisfied by the same, plaintiff-appellant preferred appeal and the same has been dismissed in the light of order dated 1.5.2013 passed by the Additional District Judge, Nuh. Resultantly, the instant second appeal before this Court.
8. Having heard learned counsel for the appellant at length and having perused the case paper book, this Court is of the considered view that the instant appeal merits dismissal.
9. The suit for specific performance was instituted by the SUSHAMA RANI MALIK201408.22 16:30 I attest to the accuracy and integrity of this document Regular Second Appeal No.4099 of 2014(O&M) 4 plaintiff-appellant on the strength of agreement to sell dated 15.9.2000, Exhibit P3. The concurrent finding of fact recorded by both the Courts below is that the plaintiff-appellant have not examined any attesting witness in whose presence the alleged agreement in question was executed and the execution of the agreement, Exhibit P3, has not been proved by way of examining the executant as also any of the attesting witnesses. There was no admission regarding execution of the agreement to sell on the part of the defendant. It has also gone unrebutted that the plaintiff had examined Naresh Kumar, DRK Gurgaon, Shri Amit Gupta, Advocate, Gurgaon, Vijay Anand, Assistant Manager, Vijaya Bank, Defence Colony, New Delhi and Nabha Joon Bhatacharya, but all the afore-noticed witnesses did not even utter a single word as regards execution of alleged agreement to sell dated 15.9.2000, Exhibit P3.
10. The findings recorded by the Courts below are based on due appreciation of evidence adduced on record. Such finding of fact would not warrant any interference by this Court in second appeal in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure.
11. No question of law, much less substantial question of law, arises for consideration in this case.
12. The appeal is, accordingly, dismissed. ( TEJINDER SINGH DHINDSA ) August 11, 2014 JUDGE SRM Note: Whether to be referred to Reporter?. (Yes/No) SUSHAMA RANI MALIK201408.22 16:30 I attest to the accuracy and integrity of this document