RSA No.3011 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3011 of 2008(O&M) Date of decision: 29.9.2008 Sardar Singh son of Shri Ram Singh …… Appellant versus Smt. Satinder Pal Multani and another …….Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR GARG * * * * Present: Mr. Sudeep Mahajan, Advocate with Mr. Anish Batish, Advocate for the appellant. * * * * Rakesh Kumar Garg, J . This is plaintiff's second appeal challenging the judgment and decree dated 2.6.2008 passed by the District Judge, Gurdaspur whereby appeal filed by respondent No.1 who is a bona fide purchaser of the property in dispute has been accepted and the judgment and decree of the trial Court has been set aside and resultantly the suit of the plaintiff- appellant has been dismissed. Specific performance of the agreement to sell dated 29.5.2000 has been sought in the suit for possession filed by the plaintiff against the defendants pertaining to 1 kanal 2 marlas of land out of 36 kanals 6 marlas fully described in the head note of the plaint. Alleging defendant No.1 to be the owner in possession of the land measuring 1 kanla 2 marlas out of 36 kanals 6 marlas, it is stated that she entered into an agreement to sell dated 29.5.2000 with the plaintiff for a consideration of Rs.40,000/- At the time of execution of agreement to sell Rs.10,000/- was received as earnest money and it was agreed that the remaining amount shall be paid at the time of execution of sale deed which was to be executed and registered RSA No.3011 of 2008(O&M) 2 upto 30.10.2000. On the stipulated date i.e. on 30.10.2000, the plaintiff after giving the information to the defendants went to the office of Sub Registrar, Gurdaspur for getting the sale deed executed in his favour, having the balance sale consideration as well as the expenses for registration with him but the defendants did not turn up before the office of Sub Registrar. It is also pleaded that now defendant No.2 has wrongly alleged that defendant No.1 in violation of the agreement in suit has sold the land, measuring 1 kanal 1 marla i.e. 1/140 share out of the land measuring 147 kanals in her favour. It is contended that if any alleged sale deed is proved, it is fictitious, mala fide, without consideration and without notice of the agreement in dispute. Plaintiff having not bound with the alleged sale deed, requested the defendants to execute the sale deed in his favour but the defendants after putting off the matter on one pretext or the other, when finally refused, the instant suit was filed. Upon notice being given to the defendants, joint written statement was filed by both the defendants. It is submitted that defendant No.1 executed agreement to sell in favour of defendant No.2 on 19.4.2000 in the presence of marginal witnesses for total consideration amount of Rs.1,20,000/- and she received Rs.12,000/- at the time of execution of agreement to sell on 19.4.2000 and the agreed date of execution of sale deed was on or before 15.9.2000. On 13.9.2000 the date was extended upto 31.3.2001 in the presence of marginal witnesses of agreement to sell. Endorsement regarding the same was made on the back side of the agreement. Thereafter, defendant No.1 executed the sale deed pertaining to land measuring 1 kanal 1 marla in favour of defendant No.2 after receiving the balance sale consideration and also delivered the possession of the land to defendant No.2. Now it is defendant No.2 who is owner in possession of the land purchased from defendant No.1 by virtue of sale RSA No.3011 of 2008(O&M) 3 deed dated 17.1.2001. It was totally denied that on 29.5.2000, defendant No.1 entered into an agreement to sell with the plaintiff pertaining to the suit property or if she had received an amount of Rs.10,000/- as earnest money. Denying the execution of the agreement to sell dated 29.5.2000, it is alleged that if any agreement is produced i.e. Illegal, null and void, forged and fabricated documents procured by the plaintiff in connivance with the scribe and attesting witnesses. Defendant No.2 claims herself to be bona fide purchaser for value without notice of the alleged agreement. Alleging the agreement to sell in favour of the plaintiff and any affidavit procured by the plaintiff just to create false evidence, prayer is made for dismissal of the suit with costs. From the pleadings of the parties, following issues were framed: “1. Whether the defendants executed an agreement to sell of the land measuring 1 kanal 2 marlas in favour of the plaintiff on 29.5.2000? OPP 2. If issue No.1 is proved, whether the plaintiff has been ready and willing to perform his owner part of the agreement? OPP 3. If issue Nos.1 and 2 are proved, whether the plaintiff is entitled for specific performance of the agreement to sell or for alternative relief of Rs.20,000/-? OPP 4. Whether the suit is not maintainable? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Relief.” Both the sides adduced evidence and on conclusion of the evidence both of them were heard by the learned trial Court. In view of the submissions made on either side and on RSA No.3011 of 2008(O&M) 4 appraisal of the evidence available on record learned trial Court returned findings on issues No.1, 2, 4 and 5 in favour of the contesting respondent while on issue No.3 learned trial Court held that the issue was rendered redundant. The suit of the contesting respondent was decreed vide judgment and decree dated 25.5.2006 and the appellant and proforma respondent were held jointly liable to execute the requisite sale deed in favour of the contesting respondent. Feeling aggrieved against the judgment and decree of the trial Court, defendant No.2 filed an appeal in the Court of District Judge, Gurdaspur submitting there in that the agreement of sale dated 29.5.2000 is false and has been manufactured by the contesting respondent in connivance with the scribe and attesting witnesses and it does not bear signatures of Ramandeep Kaur, the proforma respondent. According to him the agreement has been forged to grab the property of the proforma respondent, illegally and without there being any right, title or interest available to the contesting respondent in respect thereof. It is further argued on behalf of the appellant that even if the agreement of sale dated 29.5.2000 is accepted to be correct and valid agreement, though it is not, still the learned trial Court ought to have granted a decree for the recovery of earnest money and specific performance of the agreement could not be ordered in favour of the contesting respondent as rights of the appellant having intervened by way of sale deed dated 17.1.2001 being bona fide purchaser. On the contrary, it was argued on behalf of the plaintiff- appellant that the agreement of sale dated 29.5.2000 has been proved beyond any manner of doubt and the agreement of sale dated 29.4.2000 and the sale deed dated 11.1.2001 on the basis of the said agreement was manufactured to defeat the claim of the plaintiff-appellant. The Lower RSA No.3011 of 2008(O&M) 5 Appellate Court vide impugned judgment and decree dated 2.6.2008 accepted the appeal filed by defendant No.2 and set aside the judgment and decree of the trial Court dismissing the suit of the plaintiff-appellant. Feeling aggrieved against the said judgment and decree of the Lower Appellate Court, the plaintiff-appellant has filed the instant appeal in this Court. Mr. Sudeep Mahajan, learned counsel for the appellant, has vehemently argued that the appeal against the judgment and decree of the trial Court dated 25.5.2006 was filed only by Smt. Satinder Pal Multani defendant No.2 (contesting respondent No.1) i.e. the subsequent purchaser and not by Ramandeep Kaur, (the original owner and the executant of the agreement to sell dated 29.5.2000) in favour of the plaintiff-appellant. The non filing of the appeal by the original owner (respondent No.2) signifies that the executant of the agreement to sell dated 29.5.2000 had accepted the findings of the trial Court. The non-filing of the appeal by the original owner against the judgment of the trial Court also means that Ex.P2 is a genuine document and the subsequent sale deed dated 17.1.2001 purported to have been executed by respondent No.2 in favour of respondent No.1 was a false, forged and procured document, created only with a view to defraud the plaintiff-appellant. Further, elaborating his argument, the learned counsel has argued that the Lower Appellate Court has reversed the findings of the trial Court on wholly irrelevant and immaterial reasons as it is important to note that there is an admission on the part of respondent No.2 in the shape of complaint filed by her in the Court of Judicial Magistrate , 1st Class, Gurdaspur that the plaintiff-appellant got her signatures on a blank paper and a register by threatening her. It means that the signatures of defendant No.1 are there on Ex.P2 and therefore, there was no necessity to prove her signatures by RSA No.3011 of 2008(O&M) 6 producing Handwriting Expert and moreover, the trial Court had tallied the signatures of defendant No.1 on the agreement to sell in question and the admitted signatures of defendant No.1 and found that Ex.P2 agreement to sell in question bears signatures of defendant No.1. Learned counsel has cited the judgment of the Hon’ble Supreme Court reported as M.M.S. Investments, Madurai and others v. V.V. Veerappan and others 2007 (3) CCC 766 to argue that the comparison of signatures can be done by the Presiding Officer of the Court and there is no need to produce Handwriting Expert to prove the alleged signatures. Learned counsel for the appellant has also argued that once the trial Court has upheld the execution of the agreement to sell dated 29.5.2000 and the original owner and executant of the agreement to sell dated 29.5.2000 has chosen to accept the findings of the trial Court and on further appeal against the said judgment, it was not open either to defendant No.2 i.e. respondent No.1 or to the First Appellate Court to proceed to challenge and determine respectively the genuineness and validity of the agreement to sell dated 29.5.2000, as the said right was only available to the original owner. The subsequent purchaser, Smt. Satinder Pal Multani, could only raise the plea being a bona fide purchaser for consideration and without notice of the agreement to sell and therefore, the scope of appeal before the First Appellate Court was only as to whether the appellant before it was a bona fide purchaser for value without notice of the agreement to sell. Learned counsel for the appellant has further argued that Satinder Pal Multani cannot be held to be a bona fide purchaser as in the criminal complaint Ex.P5 dated 12.6.2000 he was cited as a witness which clearly proves that he was aware of the earlier execution of the sale deed dated 29.5.2000 executed by defendant No.1 Ramandeep Kaur in favour of the plaintiff- appellant. On the basis of above arguments, the learned counsel has RSA No.3011 of 2008(O&M) 7 sought to raise the following substantial questions of law:- 1. Whether the judgment and decree of the Lower Appellate Court is based upon completely irrelevant, untenable considerations not supported by the evidence, thereby warranting interference by this Court in regular second appeal? 2. Whether the subsequent purchaser could raise the plea that the agreement to sell dated 29.5.2000 executed by the original owner of the land in dispute, in favour of the vendee in the said original agreement to sell, was a forged and fabricated document? I have heard learned counsel for the appellant. However, I find no force in the contentions raised by him. From the perusal of the judgment of the Lower Appellate Court, it is found that agreement to sell Ex.P2 was found not to be proved. The relevant part of judgment of the Lower Appellate Court is reproduced hereinafter below:- The real controversy between the parties is with respect to execution of agreement of sale dated 29.05.2000 in favour of the contesting respondent and the one dated 19.04.2000 in favour of the appellant. Which of the two agreements has to prevail, is the real question that needs an answer. The contesting respondent Sardar Singh having approached the court for possession of the land in suit by way of specific performance of agreement of sale dated 29.05.2000 it was incumbent upon him to prove, by cogent and convincing evidence, execution of the agreement of sale dated 29.05.2000 by proforma RSA No.3011 of 2008(O&M) 8 respondent, Ramandeep Kaur in his favour, his own readiness and willingness to perform his part of the agreement throughout till filing of the suit and refusal of the proforma respondent to perform her part of the agreement. The agreement dated 29.05.2000 is available on record as Ex. P.2. It indicates that its execution was witnessed by Sucha Singh Multani and Satpal Singh, Advocates. It also purports to have been signed by Sardar Singh as purchaser and Ramandeep Kaur as seller. To prove execution of the agreement to sell, Ex. P.2 the contesting respondent has examined himself as PW-2, the two attesting witnesses Sucha Singh and Satpal Singh as PW-1 and PW-3, respectively, besides examining scribe of the agreement Ajaypal Singh as PW-4. A perusal of the evidence of these witnesses would show that PW-1 Sucha Singh Multani is none else but son of Sardar Singh, the contesting respondent and Satpal Singh is a close friend of said Sucha Singh Multani and both of them work together as advocates. It has been so admitted by Sucha Singh, PW-1, besides admitting that he is son and attorney of the contesting respondent. He has also revealed that on 29.05.2000, the day of stated execution of the agreement, Ex. P.2 Ramandeep Kaur was married at Islamabad. In spite of that her address on Ex.P2 is given as Ramandeep Kaur daughter of Surjit Singh son of Diwan Singh, resident of RSA No.3011 of 2008(O&M) 9 Nawan Shalla, Tehsil and District Gurdaspur. Reasons for not giving her address of her matrimonial home are not coming forth. It has also been stated by PW-1 Sucha Singh Multani that at the time of execution of the agreement, Ex. P.2, mother of Ramandeep Kaur, the proforma respondent, was also present. In spite of this mother of the proforma respondent was not joined as an attesting witness. Reasons for this are also buried in the heart of the contesting respondent and these have not been revealed on record. PW-1, Sucha Singh Multani has tried to explain the situation by stating that Ramandeep Kaur, the proforma respondent, had opted to have Satpal Singh as a witness of the agreement from her side. This explanation, however, is found to be incredible and unacceptable because proforma respondent being a vigilant lady could not be expected to have so opted knowing it fully well that Satpal Singh was a close aide of PW Sucha Singh Multani and as divulged by DW Satinder Pal Multani, the appellant, relations between the two sides have been strained and as revealed by Ramandeep Kaur, proforma respondent, DW-2, after the death of her father she had snapped her relations with Sucha Singh and that Satpal Singh was not at all known to her. The other witness, namely, Satpal Singh while appearing as PW-3 though has supported case of the contesting respondent with respect to the agreement, Ex. P.2 but his evidence in this respect is found to be RSA No.3011 of 2008(O&M) 10 unworthy of acceptance as his very presence at the time of execution of the agreement, Ex. P.2, is found to be doubtful. As against statement of Ramandeep Kaur, proforma respondent, that she does not know PW Satpal Singh, this witness claims to know Ramandeep Kaur personally but even this statement of the witness is found to be false because except such a claim he does not know name of husband of Ramandeep Kaur, date of her marriage, place of her residence and name of the Mohalla she resides in. He does not know if any one from matrimonial family of Ramandeep Kaur was present at the time of execution of the agreement of sale, Ex. P.2. He does not recollect what address of Ramandeep Kaur was written on agreement of sale, Ex. P.2. However, immediately thereafter he makes an improvement and states that address of parental home of Ramandeep Kaur was written but even this somersault of the witness is found to be insufficient to prove his presence at the time of execution of the agreement because, admittedly, Ramandeep Kaur was married at Islamabad on the day of stated execution of agreement, Ex. P.2 but the witness has not been able to explain why her address of matrimonial home was not written. Also he has not been able to tell the time when the agreement, Ex. P.2, was executed. Statement of PW-4 Ajaypal Singh compounds the situation further for the contesting respondent because he admittedly is not licensed scribe but still is shown to RSA No.3011 of 2008(O&M) 11 have been chosen by the contesting respondent for the purpose of scribing the agreement, Ex.P.2, even though 50-60 deed writers were available in the Tehsil compound for scribing the agreement. Reasons for such a choice have also remained unexplained. Entry No. 64 with respect to the disputed agreement, Ex. P.2, has not been made part of record. Only a mention of this entry has been made by the witness. Entry was found to be in different ink and it has been so admitted by him. He has also admitted that parties were not known to him personally and that the register in which the entry of the disputed agreement was made by him was not authenticated by any authority. Above this all, according to him, it was Ramandeep Kaur, the stated seller of the land in question who had paid the amount of Rs. 10,000/- to Sardar Singh, the stated purchaser of the land. This runs contrary to the very plea of the contesting respondent. Then, the witness though claims to be a licensed typist working in the Tehsil complex, but does not produce his license and even does not know the number of the license. He has not been able to tell description of the currency notes and time of arrival of the parties for the purpose of execution of the agreement, Ex. P.2. Proforma respondent Ramandeep Kaur has denied her signatures on the disputed agreement, Ex. P.2, but in spite of such a denial no effort is found to have been made by the contesting respondent to get purported RSA No.3011 of 2008(O&M) 12 signatures of Ramandeep Kaur on Ex. P.2 compared with her admitted signatures. In view of all what has been stated above the agreement, Ex. P.2 is found to have remained unproved and that being so inconsequential. Even presence of the contesting respondent before the Sub Registrar on the appointed day is found to be doubtful and suspicious. Affidavit, Ex.P3, is the “be-all- and-end all” of the plea of the contesting respondent in this respect. This affidavit, however, is found to be suspicious. Its attestation is also not free from doubt. Endorsement regarding attestation reads “attested as identified” but there is no identification on the affidavit, Ex.P3. It carries two signatures in blue ink and two signatures in black ink purported to be those of Sardar Singh. As against this, Sardar Singh while appearing as PW2 states that he had put only one signature on the affidavit, Ex.P3, and he does not recollect if execution of Ex.P3 was witnessed by anybody. PW-1 Sucha Singh Multani states that on affidavit, Ex.P3, a witness was obtained at Tehsil Office and it was of some Advocate. As aforesaid, Ex.P3 does not bear any such attestation of a witness. After seeing affidavit, Ex.P3, PW Sucha Singh states that about execution of the affidavit having been witnessed, his father alone must be knowing Though he claims to have remained present in the Tehsil Office on October 30, 2000 along with his father Sardar Singh but does not know if Ex.P3 was attested RSA No.3011 of 2008(O&M) 13 by any Magistrate or not. Thereafter, he tries to explain the situation and says that Magistrate available in Tehsil Office might have attested it but has not been able to tell if the affidavit was entered in some register or not and also does not know who had written name of Sardar Singh in black ink on the affidavit, Ex.P3. The Magistrate who is stated to have attested the affidavit, Ex.P3, has not been examined. No record from the Office of Magistrate has been brought forth to prove that the affidavit, Ex.P3, was so attested by the Magistrate. Not only this, the affidavit, Ex.P3, is found to be violative of the provisions of Rule 3 of Order 19 of the Code of Civil Procedure, according to which, “affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated.” Such an affidavit came up for consideration of the Hon'ble Supreme Court of India in M/s Sukhwinder Pal Bipan Kumar and others v. State of Punjab, AIR 1982 Supreme Court 65 and the Hon'ble Apex Court observed, “ In the case of M/s Sukhwinder Pal Bipan Kumar in support of the petition, there is an affidavit of one Raj Kumar, claiming to be a partner, who asserts that the allegations in para 9 and 12 are correct to be best of his knowledge. To say the least, this is no affidavit at all. Under Order XIX, Rule 3, of the Code of RSA No.3011 of 2008(O&M) 14 Civil Procedure, 1908, it was incumbent upon the deponent to disclose the nature and source of his knowledge with sufficient particularity, the allegations in the petition are, therefore, not supported by an affidavit as required by law.” Thus, from the reading of the above findings recorded by the Lower Appellate Court on the basis of appreciation of evidence, it cannot be said that the finding of the trial Court has been reversed by the Lower Appellate Court on wholly irrelevant and immaterial considerations; rather in view of the specific stand taken by defendant No.1 that her signatures were taken by force, these considerations as observed by the Lower Appellate Court are very much relevant to find out whether she signed the agreement or her signatures were taken on blank papers under threat or force as alleged by her. Even otherwise, it is well settled that the jurisdiction of this Court under Section 100 CPC is limited and this Court will not reverse the findings simply because another view is possibly on the basis of reappreciation of evidence. The second argument of the learned counsel for the appellant is also without any substance. The appellant is a bona fide purchaser without notice and he has certainly a right to challenge the findings recorded by the trial Court. It cannot be said that in the absence of any appeal by the executant of the agreement the scope of appeal filed by the bona fide purchaser is limited only to the extent of his plea with regard to being bona fide purchaser of the property in dispute. Non filing of appeal by the executant of the agreement to sell (i.e. defendant No.1) Ramandeep Kaur will not affect the right of respondent No.1 who is a bona fide purchaser. Learned counsel for the appellant was unable to cite any law in support of his above raised contention. Further submission of learned RSA No.3011 of 2008(O&M) 15 counsel for the appellant is that since defendant No.1 cited defendant No.2 as a witness in complaint Ex.P1, he was aware of the factum of