REGULAR SECOND APPEAL No. 3205 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3205 of 2008 DATE OF DECISION : DECEMBER 22, 2010 Vijay Kumar .... Appellant Versus Rakesh Kumar & Others .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL Present: Mr. R. S. Ghuman, Advocate for the appellant. Mr. Padam Kumar Jain, Advocate for respondent No.1. **** L. N. Mittal, J. (Oral) Vijay Kumar defendant No.1, having remained unsuccessful in both the lower courts, has filed the instant second appeal. Rakesh Kumar respondent No.1-plaintiff filed suit against appellant and proforma respondents No.2 to 8 alleging that Chand Rani agreed to sell the suit property to the plaintiff for Rs.2,00,00/- and received Rs.40,000/- as earnest money and executed agreement to sell dated 24.04.1998. Plaintiff was already in possession of the suit property as tenant. Sale deed was to be executed up to 31.08.1999. However, Chand Rani expired before the said date. Defendants are sons and daughters of Chand Rani and are her legal heirs. Vijay Kumar defendant No.1-appellant claimed to be sole owner of the disputed shop on the basis of will executed by his mother Chand Rani and accordingly, received rent of the suit shop from the plaintiff since 24.10.1998 to 23.12.1998. Accordingly, plaintiff served notice dated 06.08.1999 on defendant No.1 requiring him to execute the sale deed of the disputed shop on REGULAR SECOND APPEAL No. 3205 of 2008 -2- 31.08.1999 in favour of the plaintiff as per terms and conditions of the agreement. Defendant No.1 sent reply to the notice asking the plaintiff to send copy of the agreement. Accordingly, the plaintiff sent copy of the agreement to defendant No.1 on 16.08.1999. The plaintiff went to the office of Sub- Registrar on 31.08.1999 for getting the sale deed executed in terms of the agreement, but the defendants did not turn up. Accordingly, plaintiff filed suit for specific performance of the impugned agreement with confirmation of his possession over the disputed shop. Defendants No.3, 5 and 8 were proceeded ex parte. Defendant No.1 in his written statement denied the plaint allegations and inter alia pleaded that Chand Rani was owner of four shops including the disputed shop. There were separate tenants in the shops. Chand Rani wanted to give one shop each to her four sons. She give one shop to her elder son Sudarshan Kumar-defendant No.4, whereas she executed registered Will dated 29.01.1998 bequeathing remaining three shops to the other three sons i.e. Defendants No.1 to 3 (one shop each). The disputed shop was bequeathed to defendant No.1 who has become owner thereof. It was denied that Chand Rani agreed to sell the disputed shop to plaintiff. On the contrary, from the photostat copy of the agreement supplied by the plaintiff, it was found that the said agreement had been forged by the plaintiff. Defendant No.1 moved application to police for registration of FIR in this regard, and when the police did not do so, defendant filed criminal complaint against the plaintiff. There was no necessity for Chand Rani to sell the disputed shop. Plaintiff used to get signatures of Chand Rani on blank stamp papers to prepare rent receipts. The agreement has been formed and fabricated by the plaintiff after death of Chand Rani. It was denied that Chand Rani executed the aforesaid agreement REGULAR SECOND APPEAL No. 3205 of 2008 -3- or received earnest money or agreed to sell the disputed shop. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Kapurthala vide judgement and decree dated 25.07.2005 decreed the plaintiff's suit. First appeal preferred by defendant No.1 has been dismissed by learned Additional District Judge, Kapurthala vide judgement and decree dated 29.02.2008. Feeling aggrieved, defendant No.1 has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that Chand Rani never executed the impugned agreement to sell and the same has been fabricated and forged by the plaintiff. It was contended that before date of the impugned agreement, Chand Rani had already bequeathed the disputed shop to defendant No.1-appellant vide registered will dated 29.01.1998 and, therefore, there was no occasion for Chand Rani to have agreed to sell the disputed shop to plaintiff vide agreement dated 24.04.1998. I have carefully considered the aforesaid contentions but find no merit therein. The plaintiff himself appeared as PW-4 and stated according to his own version. He has also examined Ram Yash PW-1, who is one of the marginal witnesses of the impugned agreement. He has supported the plaintiff's case. Sanjeev Kumar PW-3 is son of stamp vendor Vijay Kumar since deceased. He has stated about sale of stamp paper of the impugned agreement to Chand Rani as per entry in the register of his father. Hand writing experts have been examined by both the parties. Defendant No.1 has himself stepped into witness box. He has also examined some other witnesses. REGULAR SECOND APPEAL No. 3205 of 2008 -4- Statements of plaintiff, stamp vandor and marginal witness of the agreement coupled with other evidence led by the plaintiff are sufficient to prove the execution of the impugned agreement by Chand Rani and receipt of earnest money by her from the plaintiff. Their statements could not be impeached in cross-examination. Even defendant No.1 in his cross- examination stated that from the agreement in question, he had come to know that blank stamp paper signed by Chand Rani bearing her signatures has been used by the plaintiff to prepare the impugned agreement. There is thus categorical admission of defendant No.1 that the impugned agreement bears signatures of his mother Chand Rani. This circumstance further adds to the authenticity of the plaintiff's case. In this context, it is significant to notice that there was no occasion for Chand Rani to have affixed her signatures on blank stamp papers at the instance of the plaintiff. In the written statement, it was sought to be pleaded that plaintiff used to obtain signatures of Chand Rani on blank stamp papers for preparing rent receipts. However, rent receipts are not executed on stamp papers. Moreover, Chand Rani would not have affixed signatures on blank stamp papers even at the instance of plaintiff for the purpose of rent receipt. In fact there was no occasion whatsoever for Chand Rani to affix her signatures on blank stamp papers. It may be added that although defendant No.1 himself admitted the signatures of Chand Rani on the impugned agreement, hand writing expert Sukhjinder Singh DW5 examined by the defendant No.1 has opined and deposed that disputed signatures of Chand Rani on the impugned agreement do not match her standard signatures. It is thus apparent that defendant No.1 tried to create evidence by obtaining false evidence of the hand writing expert. The contention that Chand Rani would not have executed the REGULAR SECOND APPEAL No. 3205 of 2008 -5- agreement after already executing Will of the suit property in favour of defendant No.1, also has no merit, because under the Will, plaintiff could get the suit property on death of Chand Rani, but during her life time, she continued to be owner of the suit property and, therefore, she was competent and free to execute the impugned agreement. It may be added that defendant No.1 admitted that Chand Rani had sold one shop to defendant No.4 by executing sale deed. Chand Rani also sold some other property to Sunil Kumar and Pardeep Kumar. Both these sales were made without consultation of defendant No.1 as admitted by him. Consequently, plea of defendant No.1 that he was not consulted by Chand Rani before entering into the impugned agreement carries no weight, because there was no necessity for Chand Rani to consult defendant No.1 before entering in to the impugned agreement. Learned counsel for the appellant also contended that sale of disputed shop would cause hardship to the appellant-defendant No.1 being the only shop owned by him and therefore, alternative relieve of recovery of money should be granted to the plaintiff. Reliance in support of this contention has been placed on judgement in S. Rangaraju Naidu versus Thiruvarakkarasu, AIR 1995 Supreme Court 1769. The contention is unacceptable and judgment of Hon'ble Supreme Court in the case of S. Rangaraju Naidu (supra) is completely distinguishable on facts. In that case, defendant had borrowed some money from the plaintiff and executed pronote for the same and as security for the loan amount, the defendant also executed agreement to sell on the same date. In these circumstances, alternative relief of refund of money with simple interest was held to be appropriate because agreement to sell was only part of loan transaction as security. In the instant case, however, the REGULAR SECOND APPEAL No. 3205 of 2008 -6- impugned agreement to sell was genuine transaction with intention to sell the disputed property and it was not entered into as collateral transaction or security for loan amount. Ordinarily when agreement to sell is proved, relief of specific performance should be granted. In the instant case, there is no reason much less any special reason to decline the relief of specific performance of the impugned agreement. It cannot be said that specific performance of the impugned agreement would cause any hardship much less undue hardship to the appellant-defendant No.1. Both the courts below on proper appreciation of evidence have come to concurrent finding in favour of the plaintiff-respondent No.1. The said finding is fully supported by cogent reasons. The said finding of the courts below is not shown to be perverse or illegal so as to call for interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed. (L. N. MITTAL) JUDGE December 22, 2010 'raj'