***

AMARJOT BHATTI, J. –

1. Appellants/plaintiffs Mukesh Kumar and Krishan Kumar have filed regular second appeal against impugned judgment and decree dated 21.07.2023 passed by learned Additional District Judge, Karnal, dismissing the appeal preferred by appellants/plaintiffs and upholding the judgment and decree dated 26.02.2021 passed by learned Civil Judge (Junior Division), Karnal, vide which suit filed by appellants/plaintiffs was dismissed.

2. Brief facts of the case are, defendant Shiv Dayal was owner of 1 kanal 8 ¾ marlas of land bearing khasra numbers as detailed in the plaint situated in village Pundri, Tehsil Gharaunda, District Karnal as per jamabandi for the year 2011-12 (hereinafter to be referred as ‘suit property’). Defendant being owner agreed to sell the suit property in favour of plaintiffs at the rate of Rs. 60,000/- per marla and received Rs. 15 lacs as an earnest money. Terms and conditions of agreement to sell dated 06.10.2015 were duly incorporated. The date fixed for execution and registration of sale deed was 20.12.2015. It was settled that balance sale consideration would be paid at the time of execution and registration of sale deed and in case defendant refused to execute and register the sale deed in favour of plaintiffs, then plaintiffs would have a right to get double the earnest money or to get the agreement to sell legally enforced through competent Court of law. It was for the plaintiffs to bear all expenses for execution and registration of sale deed. It was further agreed that in case plaintiffs fail to get the sale deed executed and register within specified time period, then earnest money paid by plaintiffs would stand forfeited. Agreement to sell dated 06.10.2015 was got scribed and it was signed by both the parties in presence of attesting witnesses. Plaintiffs were always ready and willing to perform their part of contract. On 20.12.2015, there was government holiday. Therefore, on the next day i.e. 21.12.2015, plaintiffs remained present in the office of Sub Registrar, Karnal from 09:00 AM to 05:00 PM, but defendant did not come to perform his part of contract. Even thereafter, plaintiffs were ready and willing to perform their part of agreement to sell and in order to avoid litigation, they sent legal notice to defendant dated 23.08.2016, calling upon defendant to come to the office of Sub Registrar, Gharaunda for execution and registration of sale deed in favour of plaintiffs on 07.09.2016 with prior intimation of two days. Again on 07.09.2016, plaintiffs along with balance sale consideration remained present in the office of Sub Registrar, Gharaunda from 09:00 AM to 05:00 PM, but defendant did not come forward to perform his part of agreement to sell. Plaintiffs came to the office of Sub Registrar, Gharaunda to mark their presence by way of an affidavit, however, defendant had already colluded with Sub Registrar, Gharaunda and under his influence, Sub Registrar, Gharaunda refused to mark their presence by way of attestation of affidavit. On this, plaintiff immediately rushed to Karnal and got their affidavit attested through Notary Public, Karnal and they also filed complaint against Tehsildar, Gharaunda to Deputy Commissioner, Karnal. Plaintiffs again contacted defendant to perform his part of agreement to sell but he postponed the matter on one pretext or the other and finally refused to accept the genuine request of plaintiffs. He further threatened to dispossess the plaintiffs from the suit property and further threatened to alienate and transfer the suit property. Thereafter, present suit has been filed on 16.09.2016.

3. Defendant Shiv Dayal appeared in this case and filed his written statement, taking preliminary objection regarding maintainability of suit. It was alleged that plaintiffs have no cause of action to file suit nor they have come to the Court with clean hands. Defendant never agreed to sell the suit property in favour of plaintiffs. He never entered into an agreement to sell dated 06.10.2015 nor he received any part of sale consideration from plaintiffs. The alleged agreement to sell dated 06.10.2015 is result of fraud and is fabricated document and same is not binding on answering defendant. Said agreement to sell dated 06.10.2015 has been prepared in connivance with witnesses and plaintiffs have played fraud upon defendant. Plaintiffs served false notice to answering defendant and on coming to now about this fraud, defendant moved application to Tehsildar, Gharaunda for not marking presence of plaintiffs on the basis of fraud and fabricated agreement to sell dated 06.10.2015. The answering defendant was present in the office of Sub Registrar, Gharaunda on 07.09.2016 to inquire about the fact as to why plaintiffs had served notice upon him. All the facts narrated in plaint were wrong and denied. It was prayed that suit filed by plaintiffs may kindly be dismissed.

4. In replication, plaintiffs denied the facts stated in written statement and reiterated their claim in the plaint. From the pleadings of the parties, following issues were framed by the trial Court on 04.02.2017 :-

1. Whether the defendant being owner of land in question mentioned in Para No.2 of the plaint had entered into agreement to sale dated 06.10.2015 in favour of plaintiff as mentioned in the plaint? OPP

2. Whether the plaintiff was/is ready and willing to perform his part of contract as per the agreement to sell dated 06.10.2015? OPP

3. Whether the plaintiff is entitled for the decree of specific performance of contract i.e. agreement to sale dated 06.10.2015? OPP

4. Whether the plaintiff is entitled for the decree for symbolic possession of the property in question? OPP

5. Whether the plaintiff is entitled for a decree for permanent injunction against the defendant as per the plaint? OPP

6. Whether the suit of the plaintiff is not maintainable? OPD

7. Whether the plaintiff has no locus-standi to file and maintain the present suit? OPD

8. Whether the plaintiff has no cause of action to file and maintain the present suit? OPD

9. Whether the plaintiff has not come to the court with clean hands and has concealed the true and material facts? OPD

10. Relief.

5. In order to prove the suit, plaintiff no. 2 Mukesh Kumar himself stepped into the witness box as PW5 and tendered his duly sworn affidavit Ex.PW5/A, in which he has reiterated the facts mentioned in plaint. Plaintiffs also examined Balbir Singh, Stamp Vendor as PW1, Gurpal, Registry Clerk as PW2, Om Parkash, Notary Public as PW3, Ramesh son of Telu Ram as PW4 and Anant Parkash, official from Allahabad Bank as PW6. Thereafter, learned counsel for plaintiffs closed evidence on behalf of plaintiffs vide separate statement recorded on 10.01.2018.

6. In order to rebut the case of plaintiffs, defendant Shiv Dayal himself stepped into the witness box as DW5 and tendered his duly sworn affidavit Ex.DW5/A. He also examined MHC Krishan Kumar as DW1, Gurpal Singh, Registry Clerk as DW2, Ishwar Lambardar as DW3, Baleshar as DW4 and Ashok Kumar, Halqa Patwari as DW6. Thereafter, learned counsel for defendant closed oral evidence on behalf of defendant vide separate statement recorded on 04.07.2019 and further closed documentary evidence on 06.09.2019.

7. After hearing the arguments advanced by learned counsel for both the parties, suit filed by plaintiffs was dismissed vide judgment and decree dated 26.02.2021 passed by learned Civil Judge (Junior Division), Karnal. Feeling aggrieved of the said judgment and decree, plaintiffs filed Civil Appeal No. 10 of 2021/CIS No. CA/18/2021 dated 12.03.2021 and same was also dismissed vide impugned judgment and decree dated 21.07.2023 passed by learned Additional District Judge, Karnal.

Feeling aggrieved of aforesaid judgments, present regular second appeal has been preferred by appellants/plaintiffs.

8. Learned Senior counsel representing appellants/plaintiffs argued that learned Courts below have completely failed to appreciate the facts and evidence on record. Facts of the case were duly proved on record on the basis of oral evidence and documents proved on file. Appellants/plaintiffs have filed suit for specific performance of agreement to sell dated 06.10.2015 (Ex.P4). As per terms of agreement to sell dated 06.10.2015 (Ex.P4), respondent/defendant had agreed to sell 1 kanal 8 ¾ marlas of land at the rate of Rs. 60,000/- per marla and had received Rs. 15 lacs as an earnest money. Date fixed for execution and registration of sale deed on payment of balance sale consideration was 20.12.2015. Aforesaid agreement to sell dated 06.10.2015 (Ex.P4) was duly proved on record by examining one of the plaintiff, namely, Mukesh Kumar as PW5 as well as Ramesh son of Telu Ram, who was one of the marginal witness as PW4. Plaintiffs examined Balbir Singh, Stamp Vendor as PW1, who confirmed the purchase of stamp paper by Shiv Dayal – respondent/defendant, duly mentioned at serial no. 26245. The relevant entry of register is Ex.P1. It is pointed out that respondent/defendant had not disputed his signatures on agreement to sell dated 06.10.2015 (Ex.P4). To support this argument, learned Senior counsel representing appellants/plaintiffs relied upon the judgment of this Court in Regular Second Appeal No. 3124 of 2008, decided on 25.09.2008, case titled “Surjit Singh Versus Nanak Singh”, cited in 2009(5) R.C.R.(Civil) 191, where in that case also ‘the defendant admitted his signatures on the agreement by taking the stand that his signatures were obtained on blank stamp paper and later on it was typed and converted into agreement to sell. In that case, it was concluded that once signatures are admitted on a document then the onus shifts on the person who admitted his signatures on a document to prove that it was obtained on blank papers under some influence or misrepresentation.’ Therefore, in the present case respondent/defendant cannot avoid agreement to sell dated 06.10.2015, which is duly signed by him.

8.1 Respondent/defendant in his written statement merely denied the execution of agreement to sell dated 06.10.2015 and took the stand that it was a fabricated document, result of fraud, therefore, not binding on respondent/defendant. It is pointed out that in written statement filed by respondent/defendant, particulars of fraud were not mentioned as required under the provisions of Order VI Rule 4 of the Code of Civil Procedure, 1908 (CPC). Learned Senior counsel representing appellants/plaintiffs referred to the judgment of Supreme Court of India in Civil Appeals Nos. 972-973 of 1968, decided on 09.12.1975 in case titled “Union of India Versus M/s. Chaturbhai M. Patel and Co.”, cited in 1976 AIR (Supreme Court) 712, where it was held that ‘when a party alleges fraud then it has to be established like any other charge of criminal offence whether made in civil or criminal proceedings and must be established beyond reasonable doubts.’ Learned Senior counsel has put reliance on another judgment of this Court in Regular Second Appeal No. 1696 of 1999, decided on 03.12.2007 in case titled “Diwan Chand Versus Kuldip Kumar Mehta”, cited in 2008(2) RCR(Civil) 284, where he referred to para No. 6 of the judgment, relevant portion runs as under :-

“6. ….Though the defendant has not admitted the execution of the agreement and the receipt of the amount in unequivocal words, but the findings of the execution of the agreement and receipt of earnest money are required to be examined in the fact and the evidence led. In the written statement, the defendant has denied the execution of the agreement of sale and alleged that the same is a result of fraud and misrepresentation. However, the defendant has not given any particulars of fraud and misrepresentation as required by Order 6 Rule 4 of the Civil Procedure Code. The defendant has not set up any counter version in the written statement. It was not the stand of the defendant that his signatures were obtained under the guise of the agreement for the increase of rent, as stated in the evidence. It was only in evidence appearing as DW-1, the defendant came up with a plea that his signatures were obtained by the plaintiff under the guise of agreement for the increase of rent. Such was not the fact pleaded in the written statement. In the absence of any stand in the written statement, the evidence, so led, is an after thought……”

Even in the case in hand, learned trial Court as well as learned First Appellate Court had laid emphasis on the evidence which was beyond his pleadings. It is well settled that fraud has to be pleaded and proved beyond the reasonable doubt. Findings given by the Courts below are merely based on presumption. In the light of this, respondent/defendant cannot deny the execution of agreement to sell dated 06.10.2015 (Ex.P4) nor can avoid its terms and conditions.

8.2 Learned Senior counsel representing appellants/plaintiffs further pointed out that in pursuance of this agreement to sell dated 06.10.2015 (Ex.P4), appellants/plaintiffs had paid huge amount of Rs. 15 lacs as an earnest money. Payment of aforesaid amount has been proved on record by examining Sh. Anant Parkash, PW6, official from Allahabad Bank, who produced statement of account of appellants/plaintiffs Krishan Kumar and Mukesh Kumar as Ex.PW6/A and Ex.PW6/B as well as statement of account of Smt. Meena wife of Mukesh Kumar as Ex.PW6/C, showing withdrawal of huge amounts. It is pointed out that while leading evidence, inadvertently reference was made with regards to wrong FDR, the one which was already closed. In order to clarify the factual position, application is filed under Order 41 Rule 27 read with Section 151 CPC seeking permission to place on record statement of account of Allahabad Bank of Smt. Meena wife of Mukesh Kumar of Allahabad Bank, Annexure A-12, as well as copy of FDR, Annexure A-14 to confirm that from the account of Smt. Meena wife of Mukesh Kumar, sum of Rs. 2 lacs were debited on 06.10.2015, the day aforesaid agreement to sell was executed. In order to pay the earnest money, various amounts were withdrawn from the bank by appellants/plaintiffs as well as by Smt. Meena wife of Mukesh Kumar and thereafter, earnest money of Rs. 15 lacs duly reflected in agreement to sell dated 06.10.2015 (Ex.P4) was paid. As per the contents of agreement to sell, possession was also delivered to appellants/plaintiffs as huge amount of earnest money was already received by respondent/defendant.

8.3 Learned Senior counsel representing appellants/plaintiffs further pointed out that appellants/plaintiffs were always ready and willing to perform their part of agreement to sell. The date fixed for execution and registration of sale deed on receipt of balance sale consideration was 20.12.2015. Since, it was a government holiday on 20.12.2015, appellants/plaintiffs came to the office of Sub Registrar, Karnal on 21.12.2015 and remained present in the office from 09:00 AM to 05:00 PM to perform their part of agreement to sell. When respondent/defendant did not turn up to perform his part of agreement to sell, appellants/plaintiffs got their attendance marked. Gurpal, Registry Clerk stepped into the witness box as PW2 and proved the entry of his register at serial no. 1342 dated 22.12.2015, Ex.P2, duly signed by both appellants/plaintiffs. Thereafter, they served legal notice dated 23.08.2016, calling upon respondent/defendant to execute and register sale deed in their favour on 07.09.2016, with two days prior intimation. This notice was duly served upon respondent/defendant. Again, appellants/plaintiffs along with balance sale consideration remained present in the office of Sub Registrar, Gharaunda from 09:00 AM to 05:00 PM, but respondent/defendant did not come forward to perform his part of agreement to sell. When appellants/plaintiffs came to the office of Sub Registrar, Gharaunda to get their presence marked by way of affidavit, said Sub Registrar at the instance of respondent/defendant refused to mark their presence, as a result, appellants/plaintiffs rushed to Karnal and got their presence marked by way of affidavit duly attested by Notary. Om Parkash, Notary Public as PW3 stepped into the witness box and confirmed the attestation of affidavit dated 07.09.2016 and also proved the entry in his register, Ex.P3. They also filed application before Deputy Commissioner, Karnal against Sub Registrar, Gharaunda dated 08.09.2016, Ex.P6. It is pointed out that it was respondent/defendant who was avoiding to perform his part of agreement to sell dated 06.10.2015 (Ex.P4).

8.4 It is argued that case of appellants/plaintiffs has been dismissed on flimsy grounds. Respondent/defendant Shiv Dayal is well educated person. Shiv Dayal as DW5 during his cross-examination admitted that he is M.A. B.Ed. He participated in execution of several documents. Therefore, it cannot be believed that he affixed his signatures on a blank paper. Respondent/defendant prior to this agreement to sell dated 06.10.2015 (Ex.P4) had executed sale deed in favour of Hari Ram, father of appellants/plaintiffs dated 18.09.1997, Ex.P8. He had also executed another sale deed on 06.10.2015, Ex.D2 regarding four and a half marlas of land in favour of their maternal uncle in relation i.e. Jai Bhagwan. Even thereafter, respondent/defendant along with his brother sold another 10 marlas of land in favour of their mother Murti Devi vide sale deed dated 10.08.2016, Ex.D3. Therefore, prior to execution of agreement to sell dated 06.10.2015 (Ex.P4) and even thereafter, various sale transactions took place between respondent/defendant and family members of appellants/plaintiffs. Learned Courts below totally ignored the evidence led by appellants/plaintiffs as well as the fact that execution of agreement to sell dated 06.10.2015 (Ex.P4) was duly proved on record. Signatures on agreement to sell are admitted by respondent/defendant. The payment of earnest money to the tune of Rs. 15 lacs is established from the bank record. In the light of this, findings of learned Courts below are liable to be set aside by accepting present regular second appeal and suit filed by plaintiffs seeking specific performance of agreement to sell dated 06.10.2015 (Ex.P4) may be decreed, as prayed for.

9. On the other hand, learned Senior counsel representing respondent/defendant argued that judgment and decree passed by the Courts below does not require any interference. Learned Senior counsel has referred to the judgment of Supreme Court of India in Civil Appeal Nos. 186-187 of 2025 [@Special Leave Petition (C) Nos. 10908-10909 of 2024], decided on 07.01.2025 in case titled “Manish Aggarwal Versus Sukhdev Singh & Ors.”, Law Finder Doc Id #2800425, relevant para no.12 of said judgment runs as under :-

“12. The Second Appellate Court, in this case, however, has totally misdirected itself while appreciating its powers under Section 41 of the Punjab Courts Act, which clearly states that it can re-appreciate the facts and the evidence in case the findings of the trial court and the First Appellate Court are perverse. Nevertheless, the impugned judgment does not provide cogent reasons to show how the findings of the Trial Court and First Appellate Court are perverse and liable for interference by the High Court.”

There are consistent findings of both the Courts below reaching to conclusion that appellants/plaintiffs had failed to prove their claim on the basis of agreement to sell dated 06.10.2015 (Ex.P4). Learned Senior counsel for respondent/defendant referred to the provisions of Section 41 of the Punjab Courts Act, 1918 and pointed out that Court in second appeal cannot re-appreciate the facts and evidence unless the findings of trial Court and First Appellate Court are perverse. Therefore, findings given by learned trial Court as well as by learned First Appellate Court on the facts cannot be disturbed.

9.1 Learned Senior counsel representing respondent/defendant further pointed out that agreement to sell dated 06.10.2015 (Ex.P4) is surrounded by suspicious circumstances. He referred to the statement of Balbir Singh, Stamp Vendor PW1, who in his examination-in-chief categorically stated that Shiv Dayal had purchased stamp paper for preparing affidavit. The onus was heavily on appellants/plaintiffs to prove the execution of agreement to sell dated 06.10.2015 (Ex.P4) in their favour, but they could not lead any convincing evidence on record to prove their own case. In the case in hand, person who scribed the aforesaid agreement to sell has not been named or examined. Appellants/plaintiffs examined one of the alleged marginal witness, namely, Ramesh son of Telu Ram as PW4. Even, he during his cross-examination could not mention the name of scribe who had written the said agreement to sell. He also confirmed that regarding payment of earnest money no endorsement was made on the agreement to sell. On the other hand, respondent/defendant examined other marginal witness of disputed agreement to sell, namely, Baleshar son of Asa Ram as DW4, who categorically stated that in his presence no writing ever took place regarding sale of property by Shiv Dayal in favour of appellants/plaintiffs nor any money transaction took place. He categorically stated that agreement to sell dated 06.10.2015 (Ex.P4) is a fake document and it was not scribed in his presence.

9.2 Learned Senior counsel representing respondent/defendant pointed out that in fact on 06.10.2015, Shiv Dayal had sold four and a half marlas of land in favour of Jai Bhagwan, maternal uncle of appellants/plaintiffs. Sale deed dated 06.10.2015 (Ex.D2) is proved on record by examining Gurpal Singh, Registry Clerk as DW2 and Ishwar Lambardar as DW3 one of the marginal witness, who stepped into the witness box to prove the execution and registration of said sale deed as Ex.D2. During his cross-examination, he has narrated about the payment of sale consideration in favour of Shiv Dayal, who was accompanied by his son Pintu. It is the case of respondent/defendant Shiv Dayal, DW5 from the very beginning admitting his signatures on the disputed agreement to sell dated 06.10.2015 (Ex.P4), but he claimed that he had affixed his signatures on a blank paper for preparing an affidavit for the purpose of sanction of mutation regarding the land which he had sold in favour of Jai Bhagwan.

9.3 Learned Senior counsel representing respondent/defendant further pointed out that various civil and criminal litigations were going on between the parties since the year 2012. It is not the case that appellants/plaintiffs on the one hand or respondent/defendant on the other hand were having cordial relations with each other. In the light of ongoing litigation between the parties, it cannot be believed that appellants/plaintiffs paid huge amount of Rs. 15 lacs in cash and did not obtain any receipt separately or by way of endorsement on the agreement to sell. It is pointed out that even if it is assumed that appellants/plaintiffs withdrew money from their respective accounts, there is nothing on record to show that said money was handed over to respondent/defendant. Respondent/defendant for the first time received legal notice from appellants/plaintiffs on 28.08.2016 and for this reason, he had come to the office of Sub Registrar, Gharaunda on 07.09.2016 and had apprised the Sub Registrar about the said fake agreement to sell and for that reason Tehsildar did not mark presence of any of the party. Even if the contents of agreement to sell are considered, the date fixed for execution and registration of sale deed was 20.12.2015. However, legal notice was sent on 23.08.2016 i.e. after a gap of about eight months. In fact, Lal Chand, Shiv Dayal (respondent/defendant) and Yashpal had agreed to sell their 10 marlas of land in favour of Murti Devi, mother of appellants/plaintiffs. After the execution of sale deed dated 10.08.2016 (Ex.D3), said legal notice dated 23.08.2016 was sent to respondent/defendant so that there may not be any adverse effect on the said transaction in favour of their mother Murti Devi. Learned Senior counsel representing respondent/defendant has referred to the judgment of Supreme Court of India in Civil Appeal No. 1109 of 1975, decided on 14.09.1987 in case titled “Mathew Versus Kuruvilla”, cited in 1988(1) RLR 322, relevant para no. 14 of said judgment runs as under :-

“14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff…..”

In the light of this, it is pointed out that all the facts and evidence on record were rightly considered by learned trial Court as well as by learned First Appellate Court. Suit filed by appellants/plaintiffs was rightly dismissed vide judgment and decree dated 26.02.2021 and thereafter, upheld by learned First Appellate Court vide judgment and decree dated 21.07.2023. It is submitted that regular second appeal preferred by appellants/plaintiffs against consistent findings of the Courts below deserves dismissal.

10. I have considered the arguments advanced by learned Senior Counsel(s) for both the parties and have gone through the trial Court record with their able assistance. The case of appellants/plaintiffs is based on agreement to sell dated 06.10.2015 (Ex.P4) allegedly executed by Shiv Dayal in favour of appellants/plaintiffs Mukesh Kumar and Krishan Kumar with regards to 1 kanal 8 ¾ marlas of land situated in village Pundri, Tehsil Gharaunda, District Karnal. As per the case of appellants/plaintiffs, respondent/defendant Shiv Dayal had agreed to sell the suit property at the rate of Rs. 60,000/- per marla and he had allegedly received earnest money of Rs. 15 lacs. The date fixed for execution and registration of sale deed was 20.12.2015. Since, appellants/plaintiffs have come to the Court claiming relief on the basis of aforesaid agreement to sell, therefore, onus is heavily on them to prove their case. In order to prove the execution of aforesaid agreement to sell dated 06.10.2015 (Ex.P4), Mukesh Kumar one of the plaintiffs has stepped into the witness box as PW5. He firstly examined Balbir Singh, Stamp Vendor as PW1 to establish that it was respondent/defendant Shiv Dayal who had purchased stamp paper worth Rs. 100/- for scribing said agreement to sell. Statement of Balbir Singh PW1 in examination-in-chief clearly shows that Shiv Dayal had purchased said stamp paper for the purpose of affidavit and not for execution of agreement to sell. Therefore, testimony of Balbir Singh PW1 does not help the case of appellants/plaintiffs. Secondly, appellants/plaintiffs examined Ramesh son of Telu Ram as PW4 who is one of the marginal witness of said agreement to sell. As per his statement, agreement to sell was got scribed by Shiv Dayal – respondent/defendant in favour of Mukesh Kumar and Krishan Kumar – appellants/plaintiffs and in return had received earnest money of Rs. 15 lacs. It cannot be ignored that other marginal witness of disputed agreement to sell, namely, Baleshar son of Asa Ram is examined as DW4 by respondent/defendant, who denied the execution of agreement to sell by Shiv Dayal – respondent/defendant in favour of Mukesh Kumar and Krishan Kumar – appellants/plaintiffs. He further stated that no earnest money was paid in his presence. He categorically stated that agreement to sell dated 06.10.2015 (Ex.P4) is a fake document.

11. In the light of this, surrounding facts and circumstances have to be considered. It is matter of record that on 06.10.2015, another sale deed was executed by Shiv Dayal in favour of Jai Bhagwan, maternal uncle in relation of appellants/plaintiffs. To prove the execution of sale deed no. 1995/1 dated 06.10.2015, respondent/defendant examined Gurpal Singh, Registry Clerk as DW2, who confirmed that sale deed dated 06.10.2015 (Ex.D2) was executed by respondent/defendant Shiv Dayal regarding four and a half marlas of land in favour of Jai Bhagwan in a sum of Rs.2,50,000/-. Ishwar Lambardar, one of the marginal witness is also examined as DW3 to prove the execution of sale deed dated 06.10.2015 (Ex.D2) by respondent/defendant Shiv Dayal in favour of Jai Bhagwan. It is the case of respondent/defendant Shiv Dayal as DW5 that his signatures were obtained on blank stamp paper for preparing affidavit in connection with sanction of mutation. Testimony of Balbir Singh, Stamp Vendor as PW1 clearly indicates that said stamp paper was purchased for the purpose of affidavit and testimony of Gurpal Singh, Registry Clerk as DW2 and Ishwar Lambardar as DW3 confirmed that on this day, sale deed was executed by Shiv Dayal in favour of Jai Bhagwan. Stand taken by respondent/defendant is based on documents, therefore, same cannot be ignored. In the light of this, there is serious doubt with regards to stand taken by appellants/plaintiffs regarding execution of agreement to sell dated 06.10.2015 (Ex.P4) allegedly executed by respondent/defendant Shiv Dayal in their favour.

12. The other important aspect of said agreement to sell dated 06.10.2015 (Ex.P4) is payment of earnest money of Rs. 15 lacs by appellants/plaintiffs in favour of respondent/defendant Shiv Dayal. Even if statement of Sh. Anant Parkash, official of Allahabad Bank PW6 along with documents annexed with application under Order 41 Rule 27 CPC are considered, appellants/plaintiffs can establish the withdrawal of Rs. 15 lacs from their respective accounts, but there is no convincing evidence on record to show that said amount was paid as earnest money to respondent/defendant Shiv Dayal. On agreement to sell dated 06.10.2015 (Ex.P4), there is no endorsement regarding receipt of huge amount of Rs.15 lacs by Shiv Dayal nor any separate receipt was got executed from Shiv Dayal – respondent/defendant. Mere withdrawal of money from bank accounts in its own does not establish that this amount was received as an earnest money by respondent/defendant.

To appreciate this aspect, earlier litigation already going on between the parties cannot be ignored. Respondent/defendant has placed on record copy of judgment, Ex.D4/A, in civil suit no. 77 of 2012, decided on 23.11.2012, vide which suit filed by Shiv Dayal seeking mandatory injunction and permanent injunction was partly decreed, restraining defendants from raising any kind of construction over the Bara, as detailed in said plaint. Respondent/defendant examined MHC Krishan Kumar as DW1 who has proved on record registration of FIR No. 386 dated 02.07.2017, Police Station Gharaunda, District Karnal as Ex.D1, lodged at the instance of Shiv Dayal against seven accused persons, namely, Mukesh, Karishan, Baleshar, Ramesh, Amrit Lal Gupta, Jai Bhagwan and Dharampal, after the execution of disputed agreement to sell dated 06.10.2015 (Ex.P4). There is copy of another criminal complaint lodged by Shiv Kumar against Mukesh and others under Section 406, 420, 467, 468, 471, 506, 34 IPC and statement of Shiv Dayal in the same is Ex.D5. Therefore, even prior to execution of agreement to sell dated 06.10.2015 (Ex.P4), civil litigation was going on and subsequently criminal litigation also started. In the light of aforesaid factual position, it cannot be expected that appellants/plaintiffs would pay huge amount of Rs. 15 lacs to respondent/defendant Shiv Dayal without taking receipt from him. Therefore, oral testimony of Mukesh Kumar, PW5 or Ramesh son of Telu Ram, PW4 is not sufficient to establish the passing of earnest money in favour of Shiv Dayal.

13. The other material fact to be determined in present case is readiness and willingness on the part of appellants/plaintiffs to perform their part of agreement to sell dated 06.10.2015 (Ex.P4). It is the case of appellants/plaintiffs that since there was government holiday on 20.12.2015, therefore, they went to the office of Sub Registrar, Karnal on 21.12.2015, but defendant did not turn up. Thereafter, despite payment of alleged huge amount of Rs. 15 lacs to Shiv Dayal, they remained silent for a long period of eight months and then served legal notice dated 23.08.2016. Respondent/defendant admitted that he had received this notice and for this reason he had also visited the office of Sub Registrar, Gharaunda on 07.09.2016 to inquire about the purpose of sending said legal notice. Learned Senior counsel representing respondent/defendant referred to the testimony of Gurpal Singh, Registry Clerk, DW2, who has proved on record another sale deed no. 1051/1 dated 10.08.2016 as Ex.D3, which was executed by Lal Chand, Shiv Dayal and Yashpal Chaudhary regarding 10 marlas of land in favour of Murti Devi, who is mother of appellants/plaintiffs. No legal notice was ever served earlier and appellants/plaintiffs came into action only when sale deed dated 10.08.2016 (Ex.D3) was also executed in favour of their mother Murti Devi.

14. Apart from this, appellants/plaintiffs had failed to disclose the name of scribe who had typed the disputed agreement to sell dated 06.10.2015 (Ex.P4). Even if for the sake of arguments the rate of land for which disputed agreement to sell was executed is ignored, even then appellants/plaintiffs have failed to lead convincing evidence regarding the genuineness of agreement to sell dated 06.10.2015 (Ex.P4) nor they were able to establish the passing of alleged earnest money of Rs. 15 lacs. The evidence led by respondent/defendant clearly indicates that even prior to execution of disputed agreement to sell, respondent/defendant and appellants/plaintiffs were not having cordial relations with each other. Therefore, version put forward by respondent/defendant cannot be ignored.

15. Thus, I do not find any valid reason to interfere in consistent findings of learned Trial Court as well as learned First Appellate Court. Learned Senior counsel representing appellants/plaintiffs failed to point out any perversity in the consistent findings of the Courts below. With this observation, judgment and decree dated 26.02.2021 passed by learned Civil Judge (Junior Division), Karnal and judgment and decree dated 21.07.2023 passed by learned Additional District Judge, Karnal, dismissing the appeal, are accordingly upheld. Consequently, finding no merits in present regular second appeal preferred by appellants Mukesh Kumar and Krishan Kumar, same is, accordingly, dismissed.

16. Pending miscellaneous application(s) if any, shall stand disposed of accordingly.

Appeal dismissed.

********