R.S.A. No.4498 of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.4498 of 2004 Date of Decision : 23.03.2009 Kabal Singh ....Appellant Versus Usha Rani and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Vinish Singla, Advocate for the appellant. Mr. Vinod Khunger, Advocate for the respondents. ..... MAHESH GROVER, J. The plaintiff/appellant is in regular second appeal assailing the findings of the first Appellate Court dated 20.2.2004. He had filed a suit for specific performance seeking to enforce two agreements to sell dated 18.1.1994 and 29.4.1994 purportedly executed by vendor Harbhajan Singh who died before the sale deeds could be executed. As per the agreement to sell dated 18.1.1994, the sale was to be concluded by 25.4.1994 and allegedly a sum of Rs.20,000/- was paid by the appellant to the owner of the property, namely, Harbhajan Singh. Subsequently, another agreement to sell was executed on 29.4.1994 by which it is alleged by the appellant that R.S.A. No.4498 of 2004 -2- he paid a sum of Rs.80,000/- to the vendor Harbhajan Singh and by virtue of this agreement to sell it was agreed that the sale was to be concluded on 25.4.1996. On 25.6.1995, Harbhajan Singh, who was not keeping well, died. The appellant thereafter approached the legal representatives of deceased Harbhajan Singh to execute the sale deeds and honour the agreements and a notice dated 7.5.1996 was issued by the appellant asking the legal representatives of deceased Harbhajan Singh to execute the sale deed on 23.5.1996. They replied to this notice but denied the agreements on 11.6.1996. To this also the appellant submitted a counter reply reiterating his version regarding the agreements to sell and execution of the sale deed. The respondents denied the agreements as also the receipt of the amount by their predecessor-in-interest Harbhajan Singh. The parties went to trial on the following issues :- 1. Whether Harbhajan Singh entered into an agreement to sell dated 18.1.1994 and 29.4.1994 regarding the shop in dispute in favour of plaintiff?OPP 2. Whether the plaintiff is entitled to the specific performance of the said agreement to sell?OPP 3. Whether the answering defendants are liable to execute the registered sale deed in favour of the plaintiff?OPP 4. Whether the said agreement is a result of fraud and has been forged and fabricated one?OPD 5. Relief. R.S.A. No.4498 of 2004 -3- The learned trial Court concluded that the agreement dated 18.1.1994 was a valid agreement as the signatures of deceased Harbhajan Singh were proved. However, it concluded that the agreement dated 29.4.1994 was not proved at all and consequently decreed the suit of the plaintiff/appellant partly by directing a refund of Rs.20,000/-. Both the parties were aggrieved by the findings of the learned trial Court and filed two separate appeals against the said judgment. The learned first Appellate Court concluded that both the agreements were forged and fabricated and dismissed the appeal of the appellant while allowing the appeal of the defendants/respondents. This has resulted in the regular second appeal being filed by the plaintiff/appellant who has contended that the first Appellate Court has committed an error by accepting the report of the hand- writing expert partly. It is the contention of the learned counsel for the appellant that either the report should have been accepted in toto or no reliance could have been placed on it by the first Appellate Court. It is further contended that the agreements have been proved by producing the attesting witnesses leaving no ambiguity in the same and consequently the first Appellate Court ought to have appreciated this fact and allowed the appeal of the plaintiff/appellant. It is further contended that the findings recorded by the first Appellate Court are perverse, as it has relied on the notice dated 7.5.1996 and the reply dated 11.6.1996 as also the counter reply dated 19.6.1996 whereas these documents were never exhibited. On the strength of this it is R.S.A. No.4498 of 2004 -4- pleaded by the learned counsel for the appellant that the findings recorded by the first Appellate Court deserve to be set aside. On the other hand, learned counsel for the respondents has contended that the appellant has failed to establish the validity of the agreements to sell and has also failed to establish that these were valid documents. It is further contended that in the plaint initially it was pleaded that the agreement was reduced into writing whereas in the notice reference to the agreement has been made to say that it was an oral agreement. Even though amendment was sought by the plaintiff/appellant in the plaint to effect a change in the pleadings to plead a written agreement instead of oral agreement, yet the notice still spoke on an oral agreement which plea was never withdrawn by the appellant. That apart, it was pleaded that there is ample evidence to show that the agreements are forged and fabricated as the names of the attesting witnesses as typed out in the agreements and the ones who have signed are at variance. Learned counsel for the respondents thus pleaded that the findings of the first Appellate Court are totally correct and do not warrant any interference. I have heard the learned counsel for the parties and have gone through the impugned judgment as also the records. The appellant has set up two agreements to sell dated 18.1.1994 and 29.4.1994 which were purportedly executed by deceased Harbhajan Singh, the predecessor-in-interest of the defendants/respondents. In a suit for specific performance, a person who approaches the Court for enforcement of an agreement to sell has necessarily to prove three essential ingredients : (i) that the agreement R.S.A. No.4498 of 2004 -5- to sell was validly executed; (ii) that there was passing of consideration which should be reflected in the agreement to sell; and (iii) willingness and readiness of the party concerned to perform his part of the agreement. If the aforesaid tests are to be applied to the facts of the case, it seems that the appellant has faltered in the very first hurdle itself. The agreements to sell have not been established as the hand-writing expert has pointed out to the variations in the signatures of testator Harbhajan Singh. The malice on the part of the appellant is also reflected from the fact that he initially pleaded that the agreements were oral but subsequently changed his plea by way of amendment to incorporate that the agreements were written. In the notice itself he pleads oral agreements. This when viewed with the ambiguity of the names of the attesting witnesses appearing on the alleged agreements shows that the agreements were not the bona fide documents. Ex.P1 reflects that it was attested by one Pamma Seth instead of Pawan Kumar whose name has been typed in written, while the name of Chiman Lal as his father has been added in ink. The other attesting witness of Ex.P1 is Sukhchain Singh whose name finds mentioned but in the reply dated 19.6.1996, which is the counter reply and is on record, name of Surjit Singh is mentioned. It is the contention of the learned counsel for the appellant that this document dated 19.6.1996 was never exhibited and could not be looked into, but the Court does not accept this contention for the reason that it was pleaded before the Court by the appellant that he had submitted counter reply to the reply submitted by the respondents to the notice issued by the appellant himself and in this counter reply dated R.S.A. No.4498 of 2004 -6- 19.6.1996, which is placed on record, he himself submitted that it was Surjit Singh who attested the same as a witness. Once the appellant himself had pleaded a fact by submitting a counter reply, then the Court is not precluded from taking cognizance of it even if it is not exhibited in accordance with law. All these factors when taken cumulatively show that the document was not inspiring enough for the Court to accept and therefore it was rightly rejected by the first Appellate Court. In this view of the matter, when the agreements to sell have not been established, the other material particulars which are to be proved pale into insignificance. Learned counsel for the appellant has pleaded that he is in possession but it is not conceivable as to how he had entered the possession, as his whole case which was based on the agreements to sell, has been shattered for want of cogent evidence. Accordingly, this Court does not find any infirmity in the impugned judgment. Consequently, the appeal, which has not thrown up any substantial question of law and is directed against a pure question of fact, which has been determined by the first Appellate Court, does not warrant an interference and is hereby dismissed. 23.3.2009 (MAHESH GROVER) JUDGE dss