RSA No.1821 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1821 of 2009(O&M) Date of decision: 14.9.2010 Manjit Singh ......Appellant(s) Versus Ramesh Kumar and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Vijay Lath, Advocate for the appellant. Rakesh Kumar Garg, J. The appellant, who was defendant No.1 before the trial Court, has approached this Court challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent-Ramesh Kumar for possession by way of specific performance of the agreement to sell in question was decreed. As per the averments made in the plaint, the appellant being owner in possession of the suit land entered into an agreement to sell with plaintiff-respondent No.1 and executed an agreement dated 31.10.2001 vide which he agreed to sell the suit land to the plaintiff for a consideration of Rs.2,25,000/- per acre and received Rs.1,00,000/- as earnest money and agreed to execute the sale deed on or before 30.10.2002 upon receiving the balance sale consideration in the presence of the witnesses. It was further averred that the plaintiff always remained ready and willing to perform his part of the contract. On 30.10.2002, the execution date of the agreement to sell in question was extended. The plaintiff paid a further sum of Rs.1,25,000/- to the appellant and an endorsement was made RSA No.1821 of 2009(O&M) 2 extending the date to 25.10.2004. However, the appellant did not turn up on the stipulated date for execution of the sale deed in the Office of the Registrar and backed out from his obligation. Left with no other option, the present suit was filed. Upon notice, the appellant appeared and contested the suit raising various preliminary objections in the written statement. On merits, execution of the agreement in question was denied. It was pleaded that the appellant never struck any bargain with the plaintiff to sell his land nor did he receive any earnest money. The agreement so set up by the plaintiff was illegal, null and void. The appellant was not known to him. The plaintiff has filed the suit in connivance with one Paramjit Singh who was inimical to the appellant. All other averments of the plaint were denied and dismissal of the suit was prayed for. The defendant-respondent No.2 filed separate written statement raising various preliminary objections. On merits, it was urged that the appellant took a loan of Rs.1,00,000/- from respondent No.2 for running a poultry farm and at present, a sum of Rs.75,000/- was due against the appellant and so the claim of defendant No.2 was prior to the claim of the plaintiff. It was stated by the learned counsel for defendant No.2 at the Bar that defendant No.1 had cleared the claim of defendant No.2 and there was no charge of defendant No.2. The plaintiff filed replication denying the averments made in the written statement and reasserting the claim as set up in the plaint. On the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the defendant entered into an agreement of sale deed dated 31.10.2001 in favour of the plaintiff? OPP RSA No.1821 of 2009(O&M) 3 2. Whether the defendant received Rs.1 Lac as earnest money ? OPP 3. Whether the plaintiff is ready and willing to perform his part of the contract ? OPD 4. Whether the suit is time barred ? OPD 5. Whether the suit is not properly valued for the purpose of court-fee and jurisdiction ?. OPD 6. Whether the suit is bad for mis-joinder of the parties ? OPD 7. Relief” After hearing the learned counsel for both the parties, the trial Court decided all the issues in favour of the plaintiff-respondent and against the defendants and decreed the suit of the plaintiff-respondent for possession by way of specific performance of the agreement to sell dated 31.10.2001 and further granted one month's time to defendant No.1- appellant to execute the sale deed by receiving the balance sale consideration from the plaintiff-respondent. Aggrieved from the aforesaid judgment and decree of the trial Court, the appellant filed an appeal before the Lower Appellate Court mainly submitting that the alleged signatures of the appellant on the agreement in question are forged signatures which fact has been proved on record through the statement of handwriting and fingerprint Expert whereas the plaintiff-respondent has not led any evidence to rebut the testimony of expert witness and therefore, no liability can be fastened upon him on the basis of the aforesaid agreement. The Lower Appellate Court rejected the arguments raised by the defendant-appellant and dismissed the appeal. The relevant part of the judgment of the Lower Appellate Court RSA No.1821 of 2009(O&M) 4 is reproduced as under: “Thus, in the light of the above said case law, this Court will appreciate the evidence of the hand writing expert. Perusal of the report of the hand writing expert shows that the hand writing expert has considered the standard signatures of defendant No.1/appellant appearing on the written statement, power of attorney and on his examination-in-chief. It is relevant to mention here that all these signatures considered as standard signatures by the expert were appended by defendant No.1/appellant on the above said documents after execution of the alleged agreement to sell dated 31.10.2001 after filing the present suit. Meaning thereby that this was very much in the knowledge of defendant No.1/appellant that his signatures might be got compared from the hand writing expert. It seems that he has knowingly changed his signatures and has appended the same in a different manner. This fact is also corroborated by the own conduct of defendant No.1/appellant, as perusal of examination in chief of defendant No.1/appellant shows that he has appended his signatures on his affidavit tendered in examination- in-chief as “Manjit”, whereas after conclusion of the cross-examination, he has appended his signatures as “MANJET”. Thus, he has deliberately substituted the letter “I” with “E” so as to obtain the report of the hand writing expert in his favour. Thus, I am of the considered opinion that the learned trial court has rightly RSA No.1821 of 2009(O&M) 5 disbelieved the testimony of the expert witness. It is pertinent to mention here that the plaintiff-respondent has led positive evidence to show that the agreement to sell was duly executed by defendant No.1/appellant in favour of the plaintiff/respondent. The plaintiff/respondent has examined the attesting witness Amrish Bhola as PW-1, who has categorically deposed on oath that the disputed agreement to sell was read over to the parties and the parties have put their signatures after admitting it as correct. He had signed the agreement to sell being the attesting witness. The plaintiff/respondent has also examined the deed writer as PW-1 Mangal Sen who has also deposed on oath that after scribing the agreement to sell the same was read over to the parties who had signed the same after admitting its contents as true. Similarly, passing of the consideration has also been proved on record by the PWs, in their presence. Only minor discrepancies have been pointed out by the learned counsel for defendant No.1/appellant in the testimony of PWs. Otherwise the PWs have stood firm in their cross-examination and have supported the case of the plaintiff/respondent. Under these circumstances, where there is positive evidence led by the plaintiff/respondent, mere opinion of the expert cannot override the positive evidence of the attesting witnesses.” Still not satisfied, the appellant has approached this Court by way of instant appeal. RSA No.1821 of 2009(O&M) 6 I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. Both the Courts below on appreciation of evidence have recorded a finding of fact that there is enough evidence to show that the agreement was duly executed by the appellant in favour of the plaintiff- respondent. Amrish Bhola who appeared as PW-2 has categorically deposed on oath that the disputed agreement to sell was read over to the parties and the parties had put their signatures after admitting it as correct. He also signed the agreement to sell being the attesting witness. Deed Writer Mangal Sen (PW-1) also deposed on oath that after scribing the agreement to sell, the same was read over to the parties who had signed the same after admitting its contents as true. Similarly, passing of the consideration was proved on record by the PWs in their presence. In view of the aforesaid overwhelming evidence led, in the affirmative, by the plaintiff-respondent, it cannot be said that the agreement to sell in question was not proved, especially keeping in view the fact that the appellant has not led any evidence to controvert the aforesaid evidence on record. A perusal of the report of the handwriting Expert shows that he considered the standard signatures of the defendant-appellant appearing on the written statement, power of attorney and his examination-in-chief. However, it is relevant to mention here that all these signatures which were considered by the Expert as standard signatures were appended by the appellant on the aforesaid documents after execution of the alleged agreement to sell dated 31.10.2001 and after filing of the present suit. Thus, genuinely raising a doubt that it was very much in the knowledge of the appellant that his signatures might be got compared through the handwriting Expert and therefore, he changed his signatures and appended the same in a different manner. Keeping in view the aforesaid RSA No.1821 of 2009(O&M) 7 discussion, the trial Court has rightly disbelieved the testimony of the expert witness and no error can be found in the judgment and decrees of the Courts below which have been recorded upon appreciation of evidence. Thus, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. September 14, 2010 (RAKESH KUMAR GARG) ps JUDGE