GURDEV SINGH Vs. GURDEEP SINGH

JUDGEMENT

(1.) This order of mine shall dispose of two regular second appeals one bearing No.RSA No.3250 of 2013 arising out of the Civil Suit bearing No.463 dated 07.04.2003 titled as "Gurdev Singh Vs Gurdeep Singh and another" (herein after called as Second Suit) whereas other RSA No.3079 of 2014 arising out of the Civil Suit No.61 dated 17.07.2002 titled as "Satish Kumar Vs Gurdeep Singh" (herein after called as First Suit). In the First Suit, an agreement to sell is dated 20.12.2001 whereas in the Second Suit, the agreement to sell is dated 30.03.2001 in respect of the same land alleged to have been agreed to be sold to the vendees, by Gurdeep Singhvendor, against the receipt of total sale consideration. The total sale consideration in respect of the agreement to sell dated 30.03.2001 was Rs. 1,00,000/- whereas a sum of Rs. 80,000/- + Rs. 10,000/- on the date of the extension had allegedly been paid to the Gurdeep Singhvendor, whereas in other case, the total sale consideration was Rs. 4,50,000/- and the earnest money of Rs. 2,00,000/- is stated to have been paid to Gurdeep Singh-vendor. The trial Court decreed the Second Suit on the ground that the appellant-plaintiff has proved the execution of the agreement to sell, whereas, the lower Appellate Court set aside the judgment and decree on the premise that it was a loan agreement and, therefore, did not grant the discretionary relief under Section 20 of the Specific Relief Act. In the First Suit, the lower Appellate Court decreed the suit and it is the appellant-defendant-vendor Gurdeep Singh who has approached this Court.

(2.) Mr. R.K. Chauhan, learned counsel appearing on behalf of the appellant-plaintiff, viz-a-viz in Second Suit, submits that the lower Appellate Court has committed illegality and perversity in dismissing the suit by ignoring the fact that the agreement to sell dated 30.03.2001 has been proved through examination of attesting witness and scribe, much less, the affidavit of marking the presence on 30.09.2001 i.e. the extended date. Nonetheless, even the preceding to the filing of the suit and the legal notice dated 21.08.2002 was also served. The agreement to sell entered into by the Gurdeep Singh-vendor in favour of the subsequent vendee namely Satish Kumar is dated 20.12.2001, i.e. of a subsequent date, therefore, the previous agreement to sell would prevail as its due execution has been proved., thus, the following substantial questions of law would arise for determination of this Court:

(3.) The agreement to sell was entered into as a security for the purpose of obtaining loan which has been sought to be executed by seeking a specific performance through the intervention of the Court, vis-a-viz, the finding rendered by Courts below (in RSA No.3079 of 2014), he submits that the original agreement to sell dated 20.12.2001 has not been proved on record, much less, no efforts have been made to prove the same by way of secondary evidence. He further submits that the lower Appellate Court has erroneously non-suited the appellant by holding that no efforts have been made to prove the original agreement to sell, whereas, an application, in this regard, had already been moved and Satish Kumar-Vendee, in his First Suit denied its existence on the premise that it had been lost.