RSA No.2036 of 2007 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. RSA No.2036 of 2007 (O&M) Decided on December 04,2009. Niranjan Singh -- Appellant vs. Ashwani Kumar and another --Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.L.S.Sidhu,Advocate, for the appellant. Rakesh Kumar Jain, J: (Oral) This is an appeal by defendant No.1. in a suit for possession by way of specific performance of an agreement to sell decreed in favour of the plaintiff by both the Courts below. Tersely, the facts are that the plaintiff (purchaser) entered into an agreement to sell with defendant No.1 (seller) who alleged himself to be co-sharer in exclusive possession of land measuring 49 kanals comprised in Rect. No. 58 Killa No. 20 (8-0), 2 (7-2), Rect No. 59 Killa No. 22 (8-0), 23 ( 8-0), 24 (8-0), Rect No. 66 Killa No. 2 ( 6-12), 6 min janub (4-0), situated in the revenue estate of village Chak Bangawala, Tehsil and District Ferozepur, on 22.1.1991 at the rate of Rs. 50,000/- per acre and had received Rs. 2 lacs from him as earnest money. Inadvertently, the area agreed to be sold was written as 50 kanals 5 marlas though, it was 49 kanals 14 marlas. The agreement to sell was attested by Manohar Singh son of Jagjit Singh and Rajpal son of Daulat Ram both residents of village Mamdot. The date of execution of sale deed was fixed as RSA No.2036 of 2007 (O&M) 2 31.12.1991 on payment of balance sale consideration. It is alleged that on 31.12.1991, the plaintiff had gone to the office of Sub Registrar, Ferozepur for the purpose of execution of sale deed with balance sale consideration and other necessary expenses but defendant No.1.did not turn up and the plaintiff got his presence marked by submitting an application dated 31.12.1991. The plaintiff had also served legal notice dated 08.1.1992 through Mr. K.K.Kakkar,Advocate, upon defendant No.1. calling upon him to execute the sale deed in his favour but notice was received back undelivered with a false report obtained by defendant No.1. in collusion with postal authorities. Defendant No.1 has transferred a part of the land covered under the agreement in question in favour of Gulab Singh son of Balbir Singh resident of village Chak Bangawala (defendant No.2.), who had asserted his right as a bonafide purchaser without knowledge of agreement. The plaintiff, thus, claimed that he has always been ready and willing to perform his part of the agreement and through the present suit, he has prayed for a decree of possession by way of specific performance of the agreement to sell 49 kanals and 14 marlas. In the alternative, relief of recovery of Rs. 3,10, 625/- i.e. Rs. 2 lacs as earnest money and Rs.1,10,625/- as compensation and damages for the breach of terms of the agreement to sell was claimed. Defendants case is that he (defendant No.1) never executed any agreement to sell. Agreement was denied as forged and fabricated document. It was alleged that the plaintiff and his father are the commission agents and are influential person of village Mamdot who had obtained thumb impression of defendant No.1/appellant on blank stamp paper in the year 1991 by using coercive method with the connivance of local police RSA No.2036 of 2007 (O&M) 3 and the said stamp paper has been converted into the present agreement to sell. It was further alleged that no earnest money was ever received, therefore, there is no question of execution of sale deed. Notice dated 08.1.1992 was also alleged to be fictitious. In nutshell, thumb impression on the agreement was accepted but its contents were denied. In the written statement filed by defendant No.2, he had averred that he is the bonafide purchaser of the land in question without any knowledge of the earlier agreement. The plaintiff filed replication. On the pleadings of the parties, following issues were framed:- 1. Whether defendant No.1 has executed a legal and valid agreement to sell dated 22.1.1991 in favour of the plaintiff ? OPP 2. Whether plaintiff is entitled to specific performance of agreement to sell dated 22.1.1991 ? OPP 3. If issue No.1 is not proved in favour of the plaintiff, whether he is entitled to recover a sum of Rs.3,10,625/- ?OPP 4. Whether the plaintiff is entitled to possession of property in dispute ?OPP 4-A. Whether plaintiff has been ready and willing to perform his part of agreement ? OPP 4B. Whether defendant No.2. is bonafide purchaser for valuable consideration without notice of previous agreement in favour of plaintiff?OPD 5. Relief: Plaintiff examined Rajan Arora as PW-1 Manohar Singh as RSA No.2036 of 2007 (O&M) 4 PW-2, plaintiff himself appeared as PW-3 and thereafter, also examined N.K.Jain handwriting and finger print expert as PW-4 before closing his evidence. Defendant No.1. examined himself as DW-1, Karnail singh as DW-2, and Anil Kumar Gupta handwriting and finger print expert as DW- 3. Learned trial Court dismissed the suit of the plaintiff. Aggrieved against the judgment and decree of the trial Court, the plaintiff preferred appeal before the first Appellate Court which has been allowed vide judgment and decree dated 27.2.2007. It is worthwhile to mention here that in the appeal filed by the plaintiff, only defendant No.1 had appeared whereas defendant No.2. remained ex-parte. After appreciating the oral as well as documentary evidence, the lower Appellate Court observed as under:- The perusal of the file shows that the plaintiff himself appeared as PW3 and he also examined scribe PW1 Rajan Arora and attesting witness Manohar Singh PW2. All these PWs have stated on oath that defendant No.1 executed an agreement to sell Ex.P1 in favour of the plaintiff on receipt of earnest money of Rs.2,00,000/-. The perusal of the file shows that there is a contradictory testimony of handwriting experts i.e. N.K. Jain PW4 and Anil Kumar Gupta DW3. N.K. Jain handwriting expert has opined that the agreement to sell bears that thumb impression of respondent No.1 Niranjan Singh, whereas Anil Kumar Gupta handwriting expert DW2 has stated that the agreement to sell Ex.P1 does not bear the thumb RSA No.2036 of 2007 (O&M) 5 impression of respondent No.1. He has stated in his cross- examination that he compared the disputed signatures of Niranjan Singh with disputed signatures and he did not take any specimen signatures / thumb impression of the respondent for comparison. Hence no value whatsoever can be attached to the deposition of this handwriting expert. Moreover where there are contradictory reports of two handwriting experts, the Court may ignore both the reports and may place reliance upon the testimony of the attesting witness and scribe. Reliance in this regard may be made in 2004(2) CCC page 186 (Supra) in which the Hon’ble High Court has held that in divergent reports of two handwriting experts, the Court is justified ignoring the reports and placing reliance on the testimony of attesting witnesses and the scribe. Moreover, the defendant has admitted his thumb impression over the agreement to sell. Though he has taken plea that his signature were obtained by force by using coercive method by local police of Mamdot. Once the signatures/thumb impression are admitted by the defendant. The onus shifts to the defendant that the agreement to sell was executed by deception and fraud. Defendant has not been able to prove any such deception and fraud. Reliance in this regard may be made in 1991 CCC page 693 Durlab Singh Vs. Nahar Singh and another in which Hon’ble High Court has held that once the signatures are accepted the onus to prove that the agreement to sale was got executed by deception and farad shifts on the defendant. So by placing RSA No.2036 of 2007 (O&M) 6 reliance upon 2004(2) CCC page 186 (Supra) as discussed above, I place reliance on the testimony of the PWs attesting witness Manohar Singh and scribe PW1 Rajan Arora. Both these PWs have fully prove the execution and consideration of the agreement to sell as already discussed above. So I have come to the conclusion that the learned trial court was wrongly disbelieved the version of the plaintiff who has fully proved his case by cogent and convincing evidence and wrongly placed reliance upon the testimony of defendant witness and DW3 handwriting expert by ignoring cogent and convincing evidence of the scribe and attesting witness. Respondent No.2 has not led any evidence that he is bonafide purchaser of the part of the land sold by defendant in his favour. So far question of willingness and readiness is concerned, the plaintiff has always been ready and willing and he has stated so in his statement and moved application before the Sub- Registrar which is duly proved on record. Despite that respondent No.1 did not execute the sale deed in favour of the plaintiff/appellant as per terms of the agreement to sell Ex.P1. So resultantly the findings of the learned trial court on issues No.1 to 4 are reverse and all these issues are decided in favour of the plaintiff and against the defendant / respondent No.1, whereas findings of remaining issues have not been challenge before me by any party. So findings of the learned trial Court on remaining issues are affirmed. RSA No.2036 of 2007 (O&M) 7 Aggrieved against the finding of the first Appellate Court, defendant No.1. has preferred this appeal in which following substantial questions of law have been framed:- “(i) Whether the agreement Ex.P1 can be read into evidence without proving its contents. (ii) Whether the Ld.Ist Appellate Court has not appreciated the law involved in this case”. The only point raised by the learned counsel for the appellant is that the attesting witness Manohar Singh (PW-2) has not deposed about the contents of the agreement to sell, whereas the attesting witness was required to disclose the contents of the agreement to sell besides deposing about the attestation. I have heard the learned counsel for the appellant and have perused the record. It is an admitted fact that agreement to sell bears the thumb impression of defendant No.1. Though, it is his case that thumb impressions were obtained using force but he has failed to lead any cogent evidence about the alleged use of force, coercion or undue influence. Once the thumb impression on the agreement to sell has been admitted by defendant No.1, the onus immediately shifts upon him to prove the circumstances in which it was alleged to have been obtained and the onus has to be discharged by leading cogent evidence and not merely by a bald statement. It is well settled that if the document bears the signatures of a person, the presumption is that he knows its contents and if any fraud is alleged, then it has to be proved beyond reasonable doubt. Insofar as the argument that the attesting witness Manohar Singh (PW-2) not deposing about the contents of the documents is RSA No.2036 of 2007 (O&M) 8 concerned, Section 3 of the Transfer of Property Act, provides definition of attestation which reads as under:- "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. According to the above provision, the attesting witness is only required to depose that the executant of a document has signed in his presence and he has seen his signatures. The purpose of attestation is only to ensure that the blank signed paper may not be converted into a legal document to the prejudice of a person against whom it is going to be used. The attesting witness is not generally concerned with the contents of the document. Therefore, this Court is unable to accept the argument raised by the learned counsel for the appellant. Thus, upshot of the above discussion is that no question of law much-less substantial is involved in this appeal. Hence the same is hereby dismissed in limine though without any costs. December 04,2009 (Rakesh Kumar Jain) RR Judge