- (1.) Present regular second appeal against concurrent findings of facts having been recorded by both the Courts below in a suit for specific of agreement of sale dated 5.12.2005, having been dismissed by the Court of first instance and first appeal dismissed by the Appellate Court. For the sake of convenience, parties are being referred to as per their status before the Court of first instance. Relevant facts of the case that plaintiff filed a suit for specific performance of agreement of sale of a double storeyed house.
(2.) As per agreement dated 5.12.2005 total sale consideration was fixed to be Rs. 6,50,000/- and the target date fixed for execution of the sale deed was 7.4.2006. Plaintiff was always ready and willing to perform his part of the agreement and despite requests, defendant refused to do so. As such, necessity of the suit. Defendant contested the suit inter alia taking the plea that no such agreement was ever executed nor any amount was received nor the possession was delivered. Thus, there was no question for being ready and willing to perform his part of agreement and prayed that suit of the plaintiff be dismissed. On these facts, the Court of first instance settled the issues and parties were put to trial. The Court of first instance, after recording evidence of the parties and appreciation thereof, dismissed the suit of the plaintiff. First appeal having been filed by the plaintiff was also dismissed by the lower Appellate Court and as such present regular second appeal before this Court.
(3.) Learned counsel for the appellant submitted that the Courts below dismissed the suit of plaintiff for specific performance of agreement of sale dated 5.12.2005 merely on the basis of assumptions and presumptions. As per learned counsel for the appellant, it is settled proposition of law that agreement of sale of immovable property is not required to be proved strictly like a Will but the same can be proved by examining a party to the agreement and one of the attesting witness. Plaintiff has been able to prove his case by examining attesting witness Mehar Singh, who appeared as PW.2. Apart from that, plaintiff examined Gulshan, Clerk of Sh Shyambir Singh, Advocate as PW.3 but the Court below still returned the finding that agreement of sale was not executed. The Court below has not given any reason that the attesting witness was not believed. The Courts below disbelieved the written agreement of sale on the ground that there was difference of ink used in the signatures at two different places. As per learned counsel for the appellant, that was quite natural if party uses two different pens and appends his signatures after some time. But on that point, findings could not be recorded that the signatures are not of the same pen, which are otherwise proved on the file by examining the attesting witness. The said findings recorded by the Courts below are liable to be set aside by accepting the appeal. While arguing on this point, learned counsel for the respondent submitted that the Courts below have already returned concurrent findings of facts after appreciating the entire evidence. The said findings do not call for any interference because there is no substantial question of law involved. Otherwise also, execution of the agreement has been denied by the defendant and making of payment.;