IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2542 of 2004 Date of Decision: 17.2.2009 Ashok Kumar. ....... Appellant through Shri Naresh Parbhakar, Advocate. Versus Swaran Singh. ....... Respondent through Shri Padam Jain,Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. By way of this Regular Second Appeal, the plaintiff-appellant has assailed the judgments and decrees dated 10.6.2003 and 1.3.2004 passed respectively by the Additional Civil Judge (Senior Division), Sultanpur Lodhi (hereinafter described as `the trial Court') and the Additional District Judge, exercising the powers of the District Judge, Kapurthala (referred to hereinafter as `the First Appellate Court') whereby his suit and the appeal have been dismissed. The appellant filed a suit for possession of the house in dispute by way of specific performance of the agreement to sell dated 17.4.1999. It was alleged therein that the said agreement was entered into between him and the defendant-respondent for a sale consideration of Rs.1,20,000/- out of which Rs.1,10,000/- were paid as earnest money and the remaining sum of Rs.10,000/- was to be paid at the time of registration of the sale deed on R.S.A.No.2542 of 2004 -2- .... 10.4.2000. It was further pleaded that the appellant was always ready and willing to perform his part of the agreement and he remained present before the Sub Registrar on 10.4.2000, but the respondent did not come present. In the alternative, a prayer for recovery of the amount in question was made and a further prayer was for restraining the respondent from alienating the house in question during the pendency of the suit. The respondent disputed the facts and stated that no agreement to sell had been entered upon between him and the appellant. It was pleaded that the respondent had taken a loan from one Ashok Kumar son of Des Raj, resident of Sabji Mandi, Sultanpur Lodhi through the appellant for purchase of the house in dispute on 16.4.1999. An agreement to this effect had been effected and some of the spaces were kept blank therein which were manipulated by the appellant. It was further averred that the amount of loan which was taken by the respondent had been returned to Ashok Kumar through the appellant, who was also responsible for ensuring repayment, but the agreement which was for the purpose of loan was not returned to him and was abused to create an agreement to sell which was done in connivance with the scribe-Ranjit Singh and Balvir Singh son of Pal Singh and stamp papers on the said loan agreement from second and third pages were removed and other stamp papers were purchased on that number and an agreement to sell in this manner was prepared. All other allegations levelled by the appellant were also denied. On the pleadings of the parties, the following issues were framed:- R.S.A.No.2542 of 2004 -3- .... 1. Whether the agreement to sell dated 17.4.99 is legal and valid?OPP 2. Whether plaintiff remained ready and willing to perform his part of the contract?OPP 3. Whether the plaintiff is entitled to recover Rs.1,20,000/- in the alternative?OPP 4. Whether the suit is not maintainable in its present form?OPD 5. Whether the plaintiff has no locus standi to file the present suit?OPD 6. Whether the agreement in question is result of fraud and misrepresentation?OPD 7. Relief. After appraisal of the evidence led by the parties, the trial Court disbelieved the plea of the appellant and concluded that there was no agreement to sell between them and consequently, dismissed the suit. In appeal, the findings recorded by the trial Court were affirmed. Hence, this appeal. Learned counsel for the appellant vehemently contended that the findings recorded by the Courts below are erroneous and deserve to be set aside. It was argued that the respondent had pleaded fraud which was never proved. Learned counsel for the appellant further argued that the finding of the Courts below regarding the change of the ink etc. to hold that R.S.A.No.2542 of 2004 -4- .... the agreement was forged could not have been recorded unless it was proved that the same was done without the consent of the respondent. To support this argument, reliance was placed on Nathu Lal Versus Mt.Gomti, AIR 1940 Privy Council 160 and Loonkaran Sethia etc. Versus Mr. Ivan E.John and others etc., AIR 1977 S.C. 336. It was next contended by the learned counsel for the appellant that Ashok Kumar son of Des Raj was examined as a Court Witness and he denied the loan agreement completely. In this view of the matter, the plea of the respondent ought to have been negatived by the Courts below. Learned counsel for the respondent, on the other hand, contended that the perusal of the agreement in question shows that signatures of the witnesses appear on the sides and not at the bottom as they normally should have been. It was further contended that the appellant had pleaded in his suit that the possession had been handed over to him at the time of execution of the agreement to sell, but the findings of the Courts below are totally contrary and in any eventuality, it cannot be believed that a person who pays a sum of Rs.1,10,000/- out of the total consideration of Rs.1,20,000/-, would fix a date for execution of the sale deed after one year. He submitted that the stamps were concededly purchased on 16.4.1999 for the purpose of obtaining loan and the respondent had purchased the house for Rs.70,000/- which is also borne out from the registered sale deed executed in his favour regarding the same property. Learned counsel for the respondent, therefore, prayed that the findings which were recorded by the Courts below are perfectly correct and do not warrant any interference. R.S.A.No.2542 of 2004 -5- .... I have thoughtfully considered the respective contentions/ arguments and have carefully gone through the whole record. The case of the appellant, right from the beginning, is that he was put in possession of the house in question after he had paid a major portion of the sale consideration. A person, who approaches the Court for equitable relief, must necessarily establish his bona fides. If the plea of the appellant is to be tested, then he has miserably failed to prove that he was granted possession of the house in question. It is also unbelievable that a person, who gives substantial amount of consideration as earnest money, would wait for inordinate period of one year for registration of the sale deed unless there are inspiring reasons for the same. For a paltry sum of Rs.10000/-, a prudent person would not wait for that long. The Apex Court in Lourdu Mari david and others Versus Louis Chinnaya Arogiaswamy and others, AIR 1996 S.C. 2814, observed as under:- “The third circumstance is that the plaintiff claimed that he had paid a sum of Rs.400/- in addition to the sum of Rs.4000/- paid as advance to the second defendant at the latter's request for vacating Door No.1/53. In the deposition he had stated that he had mentioned the same, in his plaint, but it is not so. It is also a false plea as found correctly by the learned Judge. The above three circumstances are sufficient to uphold the refusal of specific performance. It has been held by this Court repeatedly that a person who has come to Court with a false plea is not R.S.A.No.2542 of 2004 -6- .... entitled to the equitable relief of specific performance.” In paragraphs 16 and 17 of the judgment in Thiruvendgada Pillai Versus Navaneethammal & Anr., AIR 2008 S.C. 1541, their Lordships of the Apex Court observed as under:- “16. In this case the first defendant had denied having put her finger impression on Ex.A-1. She died during the pendency of the suit before her turn came for giving evidence. The High Court having examined the document has already recorded the finding that the thumb mark in Ex.A-1 was pale (that is light) and not clear. The document though dated 1980, was executed on two stamp papers which were purchased in 1973 and 1978. Contrary to the recital in the agreement that possession had been delivered to the plaintiff, the possession was not in fact delivered to plaintiff, but continued with the first defendant and she delivered the possession to the second defendant. The title deeds were not delivered to plaintiff. The attesting witnesses were close relatives of plaintiff and one of them was not examined. The scribe's evidence was unsatisfactory. It was also difficult to believe that the first defendant, an illiterate old woman from a village, would enter into an agreement of sale on 5.1.1980 with plaintiff, and even when he is ready to complete the sale, sell the property to someone else hardly a month thereafter, on 11.2.1980. In this back-ground, the finding by the first appellate Court, recorded without the benefit of any expert R.S.A.No.2542 of 2004 -7- .... opinion, merely on a casual perusal, that there appeared to be no marked differences between the two thumb impressions, and therefore Ex.A-1 (sale agreement) must have been executed by first defendant, was unsound. The High Court was justified in interfering with the finding of the first appellate Court that the Ex.A1 was executed by first defendant. 17. The trial Court had analyzed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate Court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate Court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate Court lost sight of the fact that the party who propounds the document will have to prove it. In this case plaintiffs came to Court alleging that the first defendant had executed an agreement of sale in favour. The first defendant having denied, the burden was on the plaintiffs to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the R.S.A.No.2542 of 2004 -8- .... document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the trial Court and High Court referred to earlier, when taken together, rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of PW1 to 3. We are therefore of the view that the decision of the High Court, reversing the decision of the first appellate Court, does not call for interference.” Much emphasis was laid by the learned counsel for the appellant on the testimony of Ashok Kumar son of Des Raj, but on perusal of his statement, both the Courts below have held him unreliable and recorded a finding against him. Keeping in view the afore-quoted observations of the Apex Court and the evidence on record, I am of the considered opinion that the appellant had failed to prove the execution of the agreement to sell in his favour satisfactorily and the Courts below have rightly dismissed his suit and the appeal. No question of law, much less a substantial question of law, arises for determination in this appeal, which, being without any merit,is dismissed. February 17,2009 ( Mahesh Grover ) “SCM” Judge