RSA No.1322 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1322 of 2006 Date of Decision: 6.10.2009 Gurdial Kaur and others .....Appellants Vs. Gurnam Singh and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. H.R. Bhardwaj, Advocate for Mr.R.K. Battas, Advocate for the appellants. Mr. Amit Jain, Advocate for respondent no.1. .... RAJIVE BHALLA, J The appellants challenge judgements and decrees dated 2.9.2003 and 22.12.2005, passed by the Civil Judge (Junior Division), Malerkotla and the District Judge, Sangrur, decreeing the suit filed by respondent no.1 and dismissing the appeal filed by the appellants. The plaintiff-respondent no.1 filed a suit for possession by way of specific performance of an agreement to sell dated 18.6.1994. The plaintiff alleged that Hari Singh now represented by his legal representatives, agreed to sell the suit land after receiving Rs.75,000/- , as earnest money on 18.6.1994 and promised to execute a sale deed by 2.5.1995. On this date, though respondent no.1 was present before the Sub- RSA No.1322 of 2006 2 Registrar, Malerkotla alongwith the remaining sale consideration etc., Hari Singh did not come forward to execute the sale deed. Respondent no.1, therefore,got an affidavit attested from Sh.Balwinder Singh, Nortary Public, Malerkotla so to record his presence and establish his readiness and willingness to get the sale deed executed. It is further alleged that instead of performing his part of the agreement, Hari Singh transferred the suit land to his daughters Nachhatar Kaur and Amarjit Kaur by a collusive decree dated 20.8.1994, who thereafter, sold land 18 Biswas, out of the suit land to Avtar Singh grandson of Hari Singh, who in turn sold this land to Surjit Singh son of Bhag Singh. In response, the defendants/appellants alleged that on 18.6.1994 Hari Singh was not owner in possession of the suit land. The suit land had been transferred to Nachhatar Kaur and Amarjit Kaur, pursuant to a family settlement followed by a decree dated 20.8.1994. It was further alleged that the agreement to sell is a forged document, as he has never seen respondent no.1 and does not know him. It was further pleaded that Hari Singh was illiterate, whereas the agreement is written in English, while the marginal witnesses have signed in Punjabi. Nachhatar Kaur and Amarjit Kaur filed a written statement asserting their rights under the judgement and decree dated 20.8.1994 and alleging that the agreement to sell is a forged document. Avtar Singh filed a written statement that he had purchased the suit land from Nachhatar Kaur and Amarjit Kaur for valuable consideration. Surjit Singh filed a written statement raising a plea that he is a bonafide purchaser for valuable consideration without notice of the agreement to sell. After considering the pleadings, the evidence adduced and the RSA No.1322 of 2006 3 arguments addressed, the trial court held that the agreement to sell dated 18.6.1994 stands proved by the deposition of the attesting witnesses, the proof of thumb impressions of Hari Singh by the deposition of a finger print expert. It was further held that the plea of fraud fails, as the appellants have failed to produce any cogent evidence and decreed the suit. Aggrieved by the aforementioned judgement and decree, the appellants filed an appeal. Vide judgement and decree dated 22.12.2005, the District Judge, Sangrur dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellants submits that the findings recorded by the courts below are perverse and arbitrary. There is sufficient evidence on record to raise an inference that the agreement to sell dated 18.6.1994 is a forged and fabricated document. It is submitted that Hari Singh was 80 years old. It appears that his thumb impressions were obtained on a blank paper and the agreement to sell was subsequently typed in English. The forgery is apparent from the difference in spacing of lines. It has been proved by Harbaksh Singh Mander, DW-4, a document expert, that the thumb impression was affixed on a blank paper. Another fact that establishes forgery is that though it is admitted that the agreement was written in the court compound at about 12 noon, no explanation is forthcoming for failure to disclose the identity of the scribe. The attesting witnesses are both illiterate and, therefore, could not have attested a document scribed in English. The deposition of these witnesses are full of contradictions. It is further argued that as the document is scribed in English and admittedly Hari Singh and the attesting witnesses are illiterate, there is sufficient ground to reject the agreement to sell. It is argued that in RSA No.1322 of 2006 4 view of the errors committed by the courts below, the following substantial questions of law arise for consideration :- “1. Whether the court while appreciating evidence can ignore probabilities of the case and pass an order in a mechanical way ? 2. Whether judgements are not vitiated since in arriving at the conclusion, the evidence is misread and misconstrued ? 3. Whether considering all circumstances of the case, it is not a fit case where relief of specific performance should be declined under Section 20 of the Specific Relief Act ? Counsel for the respondent, on the other hand submits that in the absence of any error of law or any arbitrary exercise of discretion by the courts below, the concurrent findings of fact recorded by the courts below do not call for interference. The agreement to sell has been proved by clear and cogent evidence. The thumb impression of Hari Singh is admitted. It is argued that the mere fact that the agreement is scribed in English, is insufficient to cast any doubt upon the execution of the agreement, as the attesting witnesses have deposed that it was read over to them before they appended their thumb impressions. I have heard learned counsel for the parties, perused the impugned judgements, considered the arguments addressed by counsel for the appellants and express my inability to hold that any substantial question of law, much less the questions of law framed by counsel for the appellants RSA No.1322 of 2006 5 arise for adjudication. Both the trial court and the first appellate court have, after a detailed and considered appraisal of the pleadings and the evidence held that the execution of the agreement by Hari Singh stands proved. They have also held that as respondent no.1 has proved that as he was ready and willing to perform his part of the agreement, there is no circumstance, as would disentitle him to the relief of specific performance. The argument that the agreement to sell was scribed in English, whereas the attesting witnesses have affixed thumb impressions, is irrelevant. The attesting witnesses Gian Singh and Nahar Singh have deposed that before Hari Singh affixed his thumb impression, the agreement was read over and explained to them in Punjabi. The argument that though the agreement was scribed in the court compound but the services of a regular scribe were not taken/used was considered and the explanation that a Punjabi typist was not available, has been accepted by the courts below. It would also be necessary to mention here that the thumb impression of Hari Singh has been proved by the deposition of an expert, which has been accepted by both the courts below. The allegation of fraud remains unsubstantiated. The appellants produced a document expert to prove that the agreement was executed on a blank paper. The expert, in his cross-examination, however, exceeded his brief and deposed that the thumb impression of Hari Singh is also forged. As regards the alleged questions of law, suffice it to say that they are neither questions of law nor substantial. The judgements recorded by the courts below are neither mechanical nor arbitrary. The appellants have failed to advert to any evidence that may have been misread or misconstrued. In addition the argument that the relief of specific performance, being discretionary should RSA No.1322 of 2006 6 have been declined, cannot be accepted, as the appellants have failed to refer to any circumstance as would disentitle the respondent to the relief of specific performance. In view of what has been stated herein above, as no substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. 6.10.2009 ( RAJIVE BHALLA ) GS JUDGE