RSA-5989-2019 (O&M) IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 115 RSA-5989-2019 (O&M) Date of Decision: 25.03.2025 KULDEEP KAUR …..Appellant Vs BALWINDER SINGH AND ANOTHER …..Respondents CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA Present: Mr. Varun Baath, Advocate for the appellant. ****** DEEPAK GUPTA, J. Suit for possession by way of specific performance, based upon an agreement to sell dated 17.12.2012, regarding property in dispute, as filed by plain(ff-Kuldeep Kaur (appellant herein) was dismissed by the trial Court on 26.05.2017 and the appeal filed by her was dismissed by the First Appellate Court on 24.01.2019. Against this concurrent finding, the plain(ff has approached this Court by way of present Regular Second Appeal. 2. It is contended by learned counsel that respondents-defendants were proceeded ex parte before the trial Court and so, the evidence produced by the appellant-plain(ff, was unrebu3ed and so the same could not have been ignored. 3. A5er going through the paper-book and considering the submissions made by learned counsel, I do not find merit in the appeal. 4. Before considering the conten(on, it will be apt to reproduce the observa(ons made by the First Appellate Court, which read as under:- “The plain(ff is claiming due execu(on of agreement dt.17.12.2012 (wrongly menoned as 17.12.2017). In support of the said conten(on the plain(ff has herself stepped into the witness box besides examining two other witnesses. Perusal of the record shows that the plain(ff witnesses tendered their evidence by way of affidavits and therea5er on subsequent date the counsel for the ap- Page 1 of 3 Pages PRIYANKA 2025.03.26 17:58 I attest to the accuracy and integrity of this document RSA-5989-2019 (O&M) pellant/plain(ff tendered three documents in evidence and therea5er closed the evidence. The three document are, original agreement dt. 17.12.2012 EX P1, original affidavit dt. 16.3.2015 EX P2 and jamabandi for the year 2010-11 EX P3. It is strange that while the plain(ff was examining three witnesses, none of the witnesses placed on record the agreement to sell so as to iden(fy specifically that it is that document which was executed between the par(es. The oral tes(- mony of all the plain(ff witnesses is to the extent that an agreement dt. 17.12.2012 was executed between par(es. It is not in evidence of any witness that they tender some mark document or any photocopy of the original agree- ment to sell, to tes(fy on oath that it is this document, which was executed between the par(es. There cannot be any presump(on of fact in favour of either of the party. This court is aware that the defendant were proceeded against exparte, yet a bare minimum requirement of law does cast an onus on the plain(ff to prove his case by leading posi(ve evidence. It is not as if the de- fendant were proceeded against exparte, therefore the en(re plea of the plain(ff is to be acceptance as a gospel truth without insis(ng on proving the basis document and its execu(on in evidence to support the case. The plain(ff did make an effort to lead three witnesses but none of the witnesses iden(fied the agreement EX P1 to be the same document which was executed and bear the signature of the witnesses or defendant. Even the affidavit suppor(ng the plea of the readiness and willingness is also not proved to be executed by pro- ducing the registering authority at the relevant (me. Even the signature of either of the par(es or marginal witness on the agreement or affidavit i.e., docu- ment EX P1 and EX P2 is proved or iden(fied by the witnesses. It is in these cir- cumstances, that the oral tes(mony of PW1, PW2 and PW3 cannot be connec- ted with the document EX P1 and EX P2. The learned trial court has rightly re- turned a finding on the aforesaid lines and thus this court see no illegality or in- firmity in the said determina(on. The argument address by the learned counsel before me thus fails. No other argument is raised or pressed by the counsel.” 5. It is evident from the above said observa(ons that though the respondents-defendants were proceeded ex parte before the trial Court, but plain(ff did not produce evidence to prove the agreement dated 17.12.2012, which was the basis of his suit. Plain(ff simply tendered in evidence affidavits of three witnesses, who did not produce the agreement in ques(on. Then, counsel Page 2 of 3 Pages PRIYANKA 2025.03.26 17:58 I attest to the accuracy and integrity of this document RSA-5989-2019 (O&M) for the appellant-plain(ff had tendered in evidence original agreement dated 17.12.2012 as Ex.P-1, affidavit dated 16.03.2015 as Ex.P-2 and jamabandi for the year 2010-11 as Ex.P-3. None of the witnesses, whose affidavits were tendered in evidence by the plain(ff, tes(fied that the agreement (Ex.P-1), later on tendered in evidence by counsel, was the same, which had been executed between the par(es. Similarly, the readiness and willingness of the plain(ff has been found to be lacking in the absence of any cogent evidence to that effect. 6. Faced with the aforesaid situa(on, learned counsel for the appellant prays to remand the ma3er to the trial Court to grant opportunity to the appellant-plain(ff to produce the necessary evidence. There is no merit in the conten(on. No such prayer was made before the First Appellate Court by moving any applica(on under Order 41 Rule 27 CPC to grant opportunity to plain(ff-appellant to examine the relevant witnesses so as to prove the agreement in ques(on. As such, at this stage, the prayer as made by learned counsel for the appellant is found to be devoid of any merit. 7. On account of aforesaid discussion, this Court does not find any reason to disturb the concurrent findings of the facts, as recorded by the Courts below in the absence of any illegality or perversity. No merits. Dismissed. (DEEPAK GUPTA) 25.03.2025 JUDGE Pry Whether speaking/reasoned : Yes Whether reportable : No Page 3 of 3 Pages PRIYANKA 2025.03.26 17:58 I attest to the accuracy and integrity of this document