Punjab-Haryana High Court
Jubair vs Nasir (Deceased) Through His Lrs ... on 28 August, 2023
2023:PHHC:113254
RSA No. 5916 of 2019 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Sr. No.114
Case No. : RSA No. 5916 of 2019
Date of Decision : August 28, 2023
Jubair .... Appellant
vs.
Nasir (deceased) through his
LRs and another .... Respondents
CORAM : HON'BLE MR. JUSTICE GURBIR SINGH.
* * *
Present : Mr. Parveen Kumar, Advocate
and Mr. Abhimanyu Singh, Advocate
for the appellant.
* * *
GURBIR SINGH, J. :
1. CM No.16891-C of 2019 : This is application under Section 5
of the Limitation Act, for condonation of delay of 30 days in filing the
present appeal. For the reasons mentioned in the application, the same is
allowed and delay of 30 days in filing the present appeal is condoned. The
application stands disposed of.
2. Main Appeal : Challenge in this appeal is to the concurrent
finding of the learned Courts below, whereby suit of the appellant-plaintiff
(hereinafter referred to as - the plaintiff) against the respondents-defendants
(hereinafter referred to as - the defendants) for specific performance of
contract, declaration with consequential relief of permanent injunction, has
been dismissed.
3. Brief facts, as culled out from the paper book, are that the
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plaintiff filed a suit pleading therein that defendant no.1, who was owner in
possession of the suit property, entered into an agreement to sell dated
18.08.2003 and received a part of consideration was earnest money. The
date for registration of sale deed was fixed as 15.09.2003, on which date
balance amount of sale consideration was to be paid. On the stipulated date,
defendant no.1 did not come for the execution of the sale deed. Defendant
no.1, in collusion with defendant no.2, sold the suit property to defendant
no.2. Mutation was also sanctioned in favour of defendant no.2.
4. Learned counsel for the plaintiff has argued that the agreement
to sell is duly proved. The plaintiff examined Stamp Vendor namely
Parkash Chand as PW-3 to prove the signatures of defendant no.1 on the
agreement to sell. He has further submitted that attesting witness Nek
Mohammad had already expired but Nooru was examined as PW-4 to prove
the agreement. It is further argued that after executing the agreement to sell,
defendant no.1 could not execute the sale deed in favour of defendant no.2.
It has been further argued that defendant no.2 had purchased the property
malafidely, so, defendant no.2 cannot be considered as bona fide purchaser
of the suit property but the learned Courts below failed to appreciate the
evidence properly.
5. I have heard learned counsel for the appellant and perused the
record.
6. The agreement to sell (Ex.PW-1/B) bears attestation of three
witnesses but none of these witnesses has been examined by the plaintiff.
The plaintiff admitted in the cross-examination that witness no.3 is Ismile
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but he further stated that he was not aware as to when witness no.3 was
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written on the agreement. Although it was stated that other witness Hayat
Khan - Nambardar has passed away but learned Courts below has held that
there was no document on record to suggest that he has passed away. The
third witness Ismile was not summoned. The plaintiff admitted in his cross-
examination that agreement to sell was scribed by Deep Chand but he was
not examined by the plaintiff, rather he was examined by defendant no.1 as
DW-1, who denied that he had scribed the agreement in question.
7. The learned Courts below have given a concurrent finding
based on the evidence brought on the file and it is not a case where evidence
has not been properly appreciated or a part of the evidence has not been
taken into consideration.
8. No question of law, much less substantial question of law,
arises for determination in the instant second appeal. The appeal is without
any merit and is accordingly dismissed in limine.
9. Pending applications, if any, shall stand disposed of along with
this judgment.
August 28, 2023 (GURBIR SINGH)
monika JUDGE
Whether speaking/reasoned ? Yes/No.
Whether reportable ? Yes/No.
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