IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.59/2025 Date of Decision: 25th July, 2025. Hari Ram Barali .....Appellants Versus Bimla Devi and Others. …..Respondents. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellant: Mr. Naveen Kumar Bhardwaj, Advocate. For the Respondents: Nemo. Bipin Chander Negi, Judge (oral). The Appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgement and decree dated 30.11.2024 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 35- D/XIII/2022 affirming the judgement and decree dated 24.08.2022 passed by the learned Senior Civil Judge, Kangra, at Dharamshala in Civil Suit No. 412/2013. 2. The parties shall hereinafter be referred to in the same way as they were arrayed before the Trial Court. The material facts necessary for the disposal of the present case are the plaintiff filed a suit for specific performance of agreements to sell dated 15.03.2007 and 24.05.2007, alleging that the defendants, being joint owners in possession of the suit land comprised in Khata No.17, Khatauni No.76, Khasra Nos.701, 856, measuring 00-01-39 hectares, Khata No.38, Khatauni No.79, Khasra Nos.881, 882, measuring 00-03-10 hectares, 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 Khata No.48, Khatauni No.98, Khasra Nos.808, 809, 817, 818, 819, 820, 837, plots-7, measuring 00-03-24 hectares, and Khata No.35, Khatauni Nos.68, 69, Khasra Nos.693, 700, 794, 796, 801, 814, plots-6, measuring 00-08-75 hectares situated at Up Mohal Mcleodganj, Tehsil Dharamshala, District Kangra (HP), had agreed to sell a portion of the suit land to the plaintiff. Smt. Ruko Devi, the mother of defendants No.1 to 3, had entered into an agreement to sell dated 15.03.2007 for 22 Marlas of the suit land for a consideration of ₹5,00,000/-, out of which ₹25,000/- was paid as advance. 3. The defendants No.1 to 3 and 5 contested the suit, raising preliminary objections regarding maintainability, locus standi, limitation, valuation, estoppel, cause of action, and res judicata. They denied the validity of the agreements and contended that Smt. Ruko Devi had expired, and they had succeeded her. They further alleged that the partition proceedings were pending and that another suit filed by the plaintiff, relying on the same agreements, was already pending, making the present suit barred by res judicata. Defendant No.5 claimed succession to Smt. Ruko Devi’s estate based on a will. Defendant No.4 did not contest the suit and was proceeded against ex parte. In replication, the plaintiff reiterated his claims. The learned Trial Court framed following issues on 19.11.2013:- 3 1. Whether an agreement to sell has been executed in between the parties, as alleged? OPP. 2. Whether plaintiff is ready and willing to perform his part of contract? OPP 3. Whether suit is not maintainable? OPD. 4. Whether plaintiff has no cause of action to file the suit? OPD. 5. Whether plaintiff has no locus standi to file the present suit? OPD. 6. Whether the suit of the plaintiff is barred by the principle of res-judicata? OPD. 7. Whether plaintiff is estopped from filing the suit by way of his act and conduct? OPD. 8. Whether this court has no jurisdiction to try the present suit? OPD. 9. Whether suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 10. Relief. 4. After considering the evidence, the Trial Court decided issues No.1 and 2 against the plaintiff, issues No.3 and 5 as not pressed, issue No.4 in favour of the defendants, and issues No.6 to 9 against the defendants, ultimately dismissing the suit. 5. Aggrieved, the plaintiff filed the first appeal, contending that the Trial Court’s judgment was erroneous and based on misappreciation of evidence. The plaintiff argued that the defendants did not deny the genuineness of the agreements, and DW1, Shri Manoj Kumar, admitted their authenticity and receipt of advance payment. The Trial Court wrongly concluded that the plaintiff had committed fraud and incorrectly recorded Smt. Ruko Devi’s death date as 24.05.2007 instead of 2009. The plaintiff emphasized that he was always ready and willing to perform his part, but the defendants refused without justification. Despite these arguments, the First Appellate court 4 dismissed the appeal, upholding the Trial Court’s findings. Therefore, the plaintiff has now filed the present second appeal, challenging the concurrent findings of the courts below. 6. Heard the Counsel for the appellant and perused the impugned judgements. 7. In the present case, upon careful examination of the evidence on record, this Court finds that the plaintiff has failed to discharge the burden of proving the valid execution of the alleged agreements to sell dated 15.03.2007 (Exhibit PW3/A photocopy) and 24.05.2007 (Exhibit PW5/A photocopy). The plaintiff's inability to produce the original documents or examine the attesting witnesses to these agreements constitutes a fatal lacuna in the evidentiary foundation of the case. The testimony of PW4 Bansi Lal, the scribe, regarding photocopies of the documents does not satisfy the legal requirements for proving the execution of such instruments. 8. The evidence presented by DW1 Manoj Kumar, one of the purported witnesses to the first agreement, establishes that the suit property remains undivided, thereby directly contradicting the plaintiff's assertion regarding completion of partition proceedings. This contradiction assumes significance as the second agreement specifically contemplated execution of the sale deed only after partition of the property. 9. Material inconsistencies emerge from the plaintiff's own testimony (PW6) regarding the timeline of events, particularly 5 concerning the date of demise of Smt. Ruko Devi in relation to the attestation of the first agreement. The testimony of PW-3 Ashok Pathania, Notary Public, who attested the first agreement on 27.11.2008, creates an irreconcilable conflict with the plaintiff's version that Smt. Ruko Devi expired subsequent to this attestation but prior to the execution of the second agreement dated 24.05.2007. 10. The contractual obligations under both agreements were contingent upon uncertain future events which were, the creation of an access path under the first agreement and completion of partition under the second agreement. The evidence of DW1 and DW2 conclusively demonstrates that neither condition was fulfilled. The plaintiff's belated assertion regarding completion of partition in November 2013 contradicts the pleadings in the plaint filed in September 2013. 11. The plaintiff has failed to demonstrate continuous readiness and willingness to perform his part of the contract as mandated by Section 16 of the Specific Relief Act, 1963. The absence of cogent evidence establishing the plaintiff's preparedness to fulfill his obligations at all material times is fatal to the claim for specific performance, Therefore, this Court finds no infirmity in the findings recorded by the learned Trial Court and the First Appellate Court. 12. In the aforesaid facts and attending circumstances, there arises no question of law, much-less a substantial 6 question of law for consideration of the Court, therefore, the appeal is dismissed being devoid of any merit. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 25th July, 2025 (T.B/Gaurav Rawat)