Erroneous findings are liable to be set aside = 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.

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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in which she had stated that she had withdrawn this amount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