RSA No. 1539 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1539 of 2010(O&M) Date of Decision: April 20, 2010 Kahan Singh ...... Appellant Versus Sukhdev Singh and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Ravish Bansal, Advocate for the appellant. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the respondents for correction of sale deed. It is not disputed that by a sale deed Ex.P1 dated 6.11.2001 the appellant sold 8 kanals of land comprised in Khasra No. 202 (5-4) and 197 (2-16) for Rs. 1,80,000/-. By a second sale deed Ex.P2 dated 1.12.2003 another area of 8 Kanals of land bearing khasra No. 200 min (2-16) and 202 (5-4) was sold also for another sum of Rs.1,80,000/-. The respondents filed the instant suit claiming that the mention of khasra number 202 in the second sale deed was wrong and in fact 5 kanals 4 marlas of land comprised in khasra number 201 was to be mentioned. The plea of the appellant was RSA No. 1539 of 2010(O&M) 2 that in the second sale deed he had intended to transfer only 2 kanals 16 marlas of land comprised in khasra No.200 min and not the remaining area of 5 kanals 4 marlas. Neither party produced the agreement to sell on the basis of which the second sale deed was executed. Learned Courts below on fact found that the stand of the respondents that khasra No. 202 was wrongly mentioned was more probable and consequently decreed the suit. In appeal the following questions have been proposed:- i) That whether the learned Courts below could have decreed the plaintiffs-respondents' suit for rectification of the sale deed even when the plaintiff-respondents failed to prove any fraud or mutual mistake by the parties in executing the sale deed in question? ii)Whether the sale deed Ex.P2 could have been said to be not expressing the real intentions of the parties even without the proof of the terms of the prior contract between the parties i.e. agreement to sell dated 14.11.2003? iii)Whether the oral evidence regarding the sale of Khasra No. 201 could have been relied upon by the learned Courts below in absence of the production and proof of the agreement to sell dated 14.11.2003 which admittedly was reduced into the form of a document could be said to be admissible in view of Section 91 of the Evidence Act? iv)Whether the adverse inference u/s 114 Evidence Act should not have been drawn against the plaintiffs-respondents for withholding the agreement to sell dated 14.11.2003 and not RSA No. 1539 of 2010(O&M) 3 producing the same? v) Whether the learned Courts below committed illegality by relying upon the insufficient and inadmissible oral evidence to hold that the parties agreed to sell khasra No. 201min(5-4) even when no such khasra number existed at the time of the execution of the sale deed? vi)Whether khasra No. 201 could be said to have been sold vide sale deed Ex.P2 when the plaintiffs-respondents miserably failed to prove the change of possession over said land after the execution of the sale deed in question and from the documentary evidence o the file defendant-appellant is proved to be in possession of the same and further when the factum of encumbrance over the said land has not been mentioned in the sale deed in question? vii)Whether the judgments and decrees of the learned Courts below are a result of non perusal of the entire evidence and are perverse and thus, non-sustainable? Learned counsel has only argued questions No. (ii), (iii), (iv) and (v) which are related questions. He has stated that it was incumbent upon the respondents to have proved the prior agreement to sell. In my opinion it was equally incumbent upon the appellant to place on record the prior agreement to sell once it was his plea that he had intended to sell only 2 kanals 16 marlas of land. In the circumstances the non-production of the agreement to sell cannot beheld to be prejudicial only to the case of the respondents. If that is so then the finding of fact recorded by the Courts RSA No. 1539 of 2010(O&M) 4 below that the case set up by the respondents was more probable has not been shown to be either based on no evidence or on such perverse misreading of the evidence so as to be liable for interference under Section 100 CPC. Consequently questions No. (ii), (iii, (iv) and (v) are answered against the appellant. Once questions No. (ii), (iii, (iv) and (v) are answered against the appellant, questions No. (i), (vi) and (vii) do not arise. In the circumstances holding all the questions proposed against the appellant, this appeal as well as the application for stay are dismissed. No costs. (AJAY TEWARI) JUDGE April 20, 2010 sunita