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‘NON­REPORTABLE’

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 2435  OF 2018 (@SLP (C) NO(S).34464 OF 2016)

DALIP SINGH        …. Appellant(s)

Versus

BHUPINDER KAUR      … Respondent(s)

J U D G M E N T

Deepak Gupta J.

1. Leave granted.

2. This appeal is directed against the judgment dated

05.08.2016 in Regular Second Appeal No.1442 of 2010

passed by the High Court of Punjab & Haryana at Chandigarh

whereby concurrent findings of fact of the trial court and the

lower appellate court have been set aside.  

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3. Briefly stated the facts of the case are that Bhupinder

Kaur (respondent­plaintiff) filed a suit for specific performance

of agreement to sell dated 25.02.1999, whereby Dalip Singh

(appellant­defendant) had allegedly agreed to sell the suit

property  to  her for  a consideration of  Rs.1,50,000/­ out of

which Rs.92,000/­ was paid at the time of the agreement.   

4. The trial court dismissed the suit holding that there

were many suspicious circumstances surrounding the

agreement.  Though the trial court did not totally believe the

case set up by Dalip Singh that he had not even signed the

agreement, it held that the plaintiff Bhupinder Kaur had

failed to prove her own case.   After discussing the evidence

threadbare, the trial court held that the plaintiff had failed to

prove that an amount of Rs.92,000/­ was paid to the

defendant.  The court referred to the statement of the plaintiff

in which she had stated that she had withdrawn this amount

of Rs.92,000/­ from the Oriental Bank of Commerce.  She did

not produce the passbook of the Bank to prove this allegation.

In  fact, the defendant examined a witness  from this  Bank,

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who proved that from 01.02.1999 to 01.03.1999 there was no

transaction in the account by the plaintiff.  Thus, the plaintiff

had  miserably failed to prove that she had paid a huge

amount of Rs.92,000/­ to the defendant.  The trial court also

came to the conclusion on the basis of the evidence that the

agreement  was for consideration of Rs.1,50,000/­ but the

value of the property at the relevant time was not less than

Rs.5,00,000/­.   

5. The lower appellate court, after discussing the entire

evidence, upheld the decree of the trial court.   It also found

that the defendant is an illiterate person and even if his

signatures on the agreement were accepted to be there,

nobody had led evidence to show that the document was read

out and explained to him before he signed the same.  It would

also  be  pertinent to  mention that  within four  days of the

agreement being signed, the defendant had issued notice on

01.03.1999 clearly stating that he had not entered into any

agreement to sell nor he had received Rs.92,000/­.  Therefore,

this was not an afterthought.  

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6. Surprisingly, the  High Court, in  second appeal,  upset

these findings of facts without even discussing the evidence

and merely after referring to certain averments of Para 2 of

the plaint and paragraph 2 of the written statement, which

read as follows:

“  Para No.2 of the plaint

That at the time of execution of the agreement to sell dated 25.02.1999 the defendant received a sum of Rs. 92,000/­ from the plaintiff as earnest money in advance and agreed to execute the sale deed in favour of the plaintiff on or before 16.07.1999.  

Paragraph 2 of the written statement on merits

“Para No.2  of the  plaint is  wrong  and denied. The defdt. Never received Rs. 92,000/­ from the plaintiff as earnest money on 25.02.99 nor the plaintiff ever paid this amount to the defdt. It is denied that the sale deed was to be executed on or before 16.7.99.”

The High Court held that on the basis of the aforesaid

pleadings,  the irresistible conclusion is that the agreement to

sell was actually executed and readiness and willingness has

been proved.  

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7. We fail to understand how the High Court could come to

this conclusion.   In the written statement the defendant had

denied the  averments  made in  Para  2  of the  plaint.   The

defendant had denied that  he had received Rs.92,000/­ as

earnest money.  There was no admission by him of any of the

allegations.   The reasoning given by the High Court is

specious and cannot stand scrutiny.  The High Court did not

discuss the evidence  at all and  erred in setting  aside the

concurrent findings of both the Courts.  

8. In view of the above discussion, we allow the appeal, set

aside the judgment of the High Court and restore the decree

of the trial court.      

9. Pending applications, if any, shall also stand

disposed of.

………………………...J. (Madan B. Lokur)

…………………………J. (Deepak Gupta)

New Delhi February  23, 2018