RSA No.1405 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1405 of 2010 (O&M) Date of decision: 31.3.2010 Mohinder Singh and others ......Appellant(s) Versus Sandeep Kansal ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Prem Kumar, Advocate for the appellants. Rakesh Kumar Garg, J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for possession of suit land by way of specific performance of agreement to sell dated 2.2.2001 has been decreed. As per averments made in the suit, appellant No.1, who was the owner of the suit land, agreed to sell the same @ Rs.2,20,000/- per acre for a total sum of Rs.4,89,500/- and received a sum of Rs.2,60,000/- as earnest money and executed the agreement to sell dated 2.2.2001 in the presence of witnesses. According to the plaintiff-respondent, the last date for executing the sale deed was stipulated as 15.5.2001. However, the same was extended at the request of appellant No.1 to 29.11.2003 and a writing in this regard was also executed on the last page of the agreement to sell in question. It is the further case of the plaintiff- respondent that he was ready with the balance sale consideration etc. but appellant No.1 did not turn up to execute the sale deed. The plaintiff- respondent contacted appellant No.1 who again showed his inability due to some domestic work and requested the respondent to wait for some more time and appellant No.1 continued to put off the matter on one pretext or the other. The plaintiff-respondent contacted appellant No.1 in the month RSA No.1405 of 2010 (O&M) 2 of October, 2006 and offered for the balance sale consideration at his residence and requested him to execute the sale deed in his favour and thereupon appellant No.1 disclosed that he had already transferred the suit property. Thereafter, the plaintiff-respondent made enquiries and obtained certified copy of sale deed No.1185 dated 6.6.2006 executed by defendant-appellant No.1 in favour of defendant-appellants No.2 to 4. Hence the present suit. In the written statement, defendant No.1 while admitting the fact that he was owner in possession of the suit land, refuted the other allegations. Execution of the agreement to sell in question was denied. It was further stated that agreement in question was forged and fabricated document and was created by the plaintiff-respondent in connivance with the witnesses. It was further submitted that appellant No.1 never agreed to sell the suit land to the plaintiff-respondent nor he ever executed an agreement to sell in this regard in favour of the respondent and further asserted that he never received any earnest money. A further stand was taken that the plaintiff was a commission agent and appellant No.1 used to sell his crops through him. The appellant No.1 had blind faith in the plaintiff as he had got secured loan from the Central Cooperative Bank after obtaining his thumb impressions on various blank and printed papers and stamp papers for the purpose of getting the loan sanctioned and he might have used any of the said papers with the connivance of alleged witnesses, who were his own men. The sale deed executed in favour of respondents No.2 to 4 was legal and valid and the plaintiff was not having any right or interest in the suit property. The suit was not maintainable and was barred by limitation. The plaintiff-respondent had no cause of action to file the suit and as such the suit was liable to be dismissed. Respondents No.2 to 4 in their identical written statement took the plea that they were the bona fide purchasers of the property in question RSA No.1405 of 2010 (O&M) 3 for valuable consideration and their rights were protected under the Transfer of Property Act. They denied the knowledge of appellant No.1 having entered into any agreement to sell the suit property in favour of the plaintiff-respondent on 2.2.2001. It was further asserted that the sale deed executed by defendant-appellant No.1 in favour of defendant-appellants No.2 to 4 was valid. Other averments were denied and dismissal of the suit was prayed for. In replication, the plaintiff-respondent reiterated his case and denied the averments made in the written statement of defendant- appellants. After perusing the evidence on record and considering the arguments of the learned counsel for the parties, the trial Court dismissed the suit with costs. Aggrieved by the aforesaid judgment and decree, the plaintiff respondent filed an appeal before the Lower Appellate Court which was accepted vide impugned judgment and decree dated 20.2.2010 holding that the plaintiff-respondent was entitled to get the possession of the suit land by way of specific performance of the agreement to sell dated 2.2.2001. While accepting the appeal, the Lower Appellate Court observed as under: “Now coming to the agreement itself, it comes out that it is written in hand. Writing by hand is not a mechanical process and there may be different line spacing. On the first page after few lines, there is a wide space and there is no unusual congestion of space on the first page. There can be several reasons why there is congestion of space on the second page. The scribe might have thought to finish the writing in two pages, in place of stretching it to third page. Therefore, merely from RSA No.1405 of 2010 (O&M) 4 congestion of space in the lining on the second page, it cannot be concluded that the thumb impressions of defendant No.1 were already there on the agreement, which is on stamp paper, which was purchased only three days back. Moreover, the endorsement extending the time dated 14.5.2001 shows that it bears the thumb impressions of the defendant in the black ink, as against the blue ink used in the agreement. Meaning thereby, that this thumb impression was fixed at a different time. As discussed above, defendant does not claim that his thumb impressions were obtained by the plaintiff on bank papers and stamp papers at different times. So far as the plea of the defendant is concerned that his thumb impressions were obtained on the pretext of obtaining of loan from the Bank, the cross-examination of Mohinder Singh defendant No.1 appearing as DW-1 shows that he had already taken loan from Central Co-operative Bank 8-9 years back. He executed the loan documents in the bank. He had also executed the simple mortgage deed in favour of the Bank. He had visited the Bank premises and executed the loan documents. Again, a loan was taken by visiting the Bank. Therefore, defendant No.1 knew the procedure as to how the loan is obtained from the Bank and, therefore, it cannot be believed that he will put thumb impressions on blank papers before the Commission Agent, as he knew the procedure that for the purpose of obtaining loan, one has to visit the Bank and execute the documents there. Therefore, trial Court erred in holding that the agreement Ex.P5 was written RSA No.1405 of 2010 (O&M) 5 on a paper where the thumb impressions of the defendant No.1 were already obtained. There is no reason how the thumb impressions of defendant No.1 appeared on the register of the scribe and also on the register of stamp vendor and also on the subsequent writing extending the time. From the mere difference in the line spacing and use of only two pages for the purpose of agreement, it cannot be concluded that the thumb impressions of the defendant already existed, keeping in view the other surrounding circumstances regarding the agreement. Shri Anil Kumar Gupta PW-7 has opined that the thumb impressions of defendant No.1 tally with his standard thumb impressions.” Not satisfied with the impugned judgment and decree of the Lower Appellate Court, the defendant-appellants have approached this Court by way of instant appeal submitting that the following substantial questions of law arise in this appeal: “a) Whether the First Appellate Court gravely erred in law in reversing the well reasoned judgment of the trial Court? b) Whether the agreement to sell dated 2.2.2001, Exh.P-5 is forged and fabricated? c) Whether the findings given by the First Appellate Court by holding that the agreement to sell dated 2.2.2001, Exh. P-5 is duly proved, are legally sustainable? d) Whether the extension Note dated 1.5.2001 Exh. P-6 is also forged and fabricated? e) whether the First Appellate Court has not erred in RSA No.1405 of 2010 (O&M) 6 law by holding that the respondent can file the suit within 3 years before the expiry of said extended date without giving any reasoning on the genuineness of Extension Note dated 14.5.2001 Exh.P-6? f) Whether the First Appellate Court can grant decree of possession by way of specific performance, in the absence of such condition in agreement to sell that respondent can execute the sale deed through the process of Court? g) Whether the stamp papers purchased for the alleged agreement to sell can be used partly on different dates and for different purpose? h) Whether appellant Nos.2 and 4 are the bona fide purchaser of the suit land for valuable consideration vide sale deed Exh.D-1 executed on 6.6.2006?” In support of this appeal, learned counsel for the appellants has vehemently argued that the Lower Appellate Court has fell into error in reversing a well reasoned judgment of the trial Court on the basis of gross misreading and misappreciation of the evidence resulting into perversity of finding. Elaborating further, learned counsel for the appellants has argued that it has been proved on record that the agreement to sell in question is full of suspicious circumstances which proves the assertion of the appellants that the alleged document was forged and fabricated document and the Lower Appellate Court has failed to appreciate the material evidence adduced on record of the case. According to the learned counsel for the appellant, there was uneven and suspicious spacing in agreement to sell in question and even in the register of the scribe regarding the entry of execution of the agreement shows that the agreement was a forged and fabricated document. Learned counsel further submitted that the plaintiff- RSA No.1405 of 2010 (O&M) 7 respondent was a Commission Agent and appellant No.1 used to sell his crops through him and thus, was having blind faith in the plaintiff- respondent, who might have used the blank papers which he got thumb marked from him. Learned counsel further argued that from the aforesaid facts coupled with the fact that the appellant was an illiterate rustic villager of 65 years of age, it was unbelievable that he was receiving such a huge amount all alone. Thus, from the aforesaid explained fact, it emerges out that the alleged document is forged and fabricated by the plaintiff- respondent with the help of scribe and therefore, the substantial questions of law as submitted aforesaid arise in this appeal which are liable to be accepted. I have heard learned counsel for the appellants and perused the judgment and decrees of the Courts below. From the arguments raised by the learned counsel for the appellants, the only question which arises for consideration of this Court is “whether the findings of the Lower Appellate Court are perverse and are based upon misreading of evidence.” In my view, the answer to the aforesaid question is in negative. From the perusal of the impugned judgment and decree, it is amply clear that execution of the agreement in question has been proved by the plaintiff-respondent from probable evidence on record. In fact, thumb impressions of appellant No.1 on agreement in question are admitted. Even the handwriting expert Sh.Anil Kumar Gupta who appeared as PW-7 has opined that the questioned thumb impressions are of appellant No.1. In spite of denying the execution of the agreement in question and taking up the plea that the aforesaid agreement was forged and fabricated document, the appellants have failed to prove their aforesaid assertion on the record of the case by producing any cogent evidence on record. So much so, no expert has been produced by the RSA No.1405 of 2010 (O&M) 8 appellants to controvert the report of the handwriting expert produced by the plaintiff-respondent. In fact, from the arguments raised by the learned counsel for the appellants, it can be made out that the appellants are building their case to prove that the agreement in question was a forged and fabricated document only on the ground that the execution of the aforesaid document is full of suspicious circumstances. In my view, a forged and fabricated document is on a different footing than of a document execution of which is full of suspicious circumstances. In the present case, it is the specific case of the appellants that the agreement in question is forged and fabricated document and appellant No.1 denied the execution of the same categorically. Once the aforesaid stand has been taken by appellant No.1 he was supposed to prove the same by producing the evidence to establish the fact that the thumb impressions on the document in question were not of him and the aforesaid document was forged by the plaintiff-respondent. There is no such evidence on record. Only an effort has been made by the appellants to establish that execution of agreement in question was full of suspicious circumstances. Thus, the argument raised by the counsel for the appellants is unsustainable. Moreover, from the evidence on record, it cannot be held that the findings of the Lower Appellate Court are based on no evidence. Counsel for the appellants was unable to point out any material evidence on record which was ignored while passing the impugned judgment and decree of the Lower Appellate Court. Thus, it cannot be held that the findings of the Lower Appellate Court suffers from perversity. In the case of Gurdev Kaur & others v. Kaki & others JT 2006 (5) SC 72, the Hon’ble Supreme Court of India after discussing law on the scope of exercise of jurisdiction under Section 100 of the CPC has observed as under: “Now, after 1976 Amendment, the scope of Section 100 RSA No.1405 of 2010 (O&M) 9 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. Thus, I find no merit in this appeal, No other point was urged. No substantial question of law arises in this appeal Dismissed. March 31, 2010 (RAKESH KUMAR GARG) ps JUDGE