Sri Chand vs Dharam Pal

L.N. Mittal, J.

C. M. No. 8799-C of 2010 :

Disposed of as infructuous as court fee has since been paid.

C. M. No. 8800-C of 2010 :

Allowed as prayed for.

C. M. No. 8801-C of 2010 :

For reasons mentioned in the application, delay of 159 days in re-filing the appeal is condoned.

C. M. No. 8802-C of 2010 :

Allowed as prayed for.

Main Appeal :

Defendant Sri Chand has filed the instant second appeal having remained unsuccessful in both the courts below.

Dharam Pal - respondent/plaintiff filed suit against appellant for specific performance of agreement to sell dated 26.06.1998. The plaintiff pleaded that the defendant agreed to sell 08 kanals suit land to the plaintiff for Rs. 1,12,500/- and received Rs. 63,240/- as earnest money and executed agreement dated 26.06.1998 in favour of the plaintiff. Sale deed was to be executed up to 10.06.1999. The plaintiff remained present in the office of Sub Registrar on 10.06.1999, but the defendant did not come present and committed breach of the agreement. Plaintiff was always ready and willing to perform his part of the agreement.

The defendant denied the plaint allegations. The defendant pleaded that he never executed the agreement nor received any earnest money nor agreed to sell the suit land to the plaintiff. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Faridabad, vide judgment and decree dated 20.01.2007, decreed the plaintiff''s suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Faridabad, vide judgment and decree dated 08.09.2009. Feeling aggrieved, defendant has preferred the instant second appeal.

I have heard learned Counsel for the appellant and perused the case file.

The plaintiff, in order to prove his case, appeared himself in the witness-box and also examined Mr. Siri Gopal Vashishtha, Advocate, who drafted the agreement and also attesting witnesses Fakir Chand and Jhari Singh of the agreement. All of them have supported the plaintiff''s case. Both the courts below, after appreciating evidence led by both the parties, have given concurrent finding in favour of the plaintiff. The said finding, being based on proper appreciation of evidence, cannot be said to be perverse or illegal in any manner warranting interference in second appeal.

The defendant himself appeared as witness and examined handwriting expert. The plaintiff has also examined handwriting expert. Since both the handwriting experts gave conflicting opinions, much weight cannot be attached to the testimonies of handwriting experts because science of comparison of handwriting is not a perfect science and more often than not, handwriting experts give opinion in favour of the party engaging them. There is only self-serving statement of the defendant, which is not sufficient to rebut the cogent evidence led by the plaintiff.

Learned Counsel for the appellant vehemently contended that Fakir Chand (PW-1) stated that he had left the place for a while, while Mr. Siri Gopal Vashishtha, Advocate was getting the agreement typed and agreement was not read over in his presence. However, merely on account of this statement made by one attesting witness, the plaintiff cannot be non-suited because the plaintiff has led other sufficient cogent evidence. Mr. Siri Gopal Vashishtha, Advocate is an independent witness and he has duly proved execution of the agreement by the defendant. Jhari Singh (PW-6) has also proved due execution of the agreement by the defendant. Even Fakir Chand (PW-1) has stated that the defendant had agreed to sell the suit land to the plaintiff. Thus, the evidence led by the plaintiff is credible and more than sufficient to prove his case.

No question of law, much less substantial question of law, arises for determination in the instant second appeal. Lower appellate court is the final court of fact. There is no merit in the instant second appeal, which is accordingly dismissed in limine.