REGULAR SECOND APPEAL NO.3447 OF 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.3447 OF 2007 DATE OF DECISION: JANUARY 13, 2011 Nachhattar Singh & others .... Appellants Versus Ranjit Singh & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. J. S. Brar, Advocate for the appellants. Mr. K. S. Boparai, Advocate for respondents No.1 to 4. * * * * L.N. MITTAL, J. (ORAL) Defendant Nos.1, 5 and 6 have filed the instant second appeal having remained unsuccessful in both the courts below. Respondent Nos.1 to 4/plaintiffs who are all brothers inter se, filed suit against appellants and respondent Nos.5 to 7, alleging that defendant No.1 Nachhattar Singh agreed to sell the suit land measuring 23 Kanals 9 Marlas comprised of specific Khasra numbers to the plaintiffs @ Rs.2,00,000/- per acre and received Rs.2,52,000/- as earnest money and executed agreement to sell dated 13.07.1995. On behalf of the plaintiffs, the agreement was signed by plaintiff No.1. Agreement was also witnessed by defendant No.5 Sukha Singh, who is son of defendant No.1, besides other witnesses. Out of the suit land, land measuring 2 Kanals 14 Marlas was mortgaged with Shaami and others. Land measuring 7 Kanals 8 Marlas was mortgaged with defendant No.2 Punjab National Bank for Rs.97,700/-. There was also money decree of Rs.37,200/- in favour of Surinder Singh defendant No.3, in execution whereof some land of defendant No.1 had been attached. Land measuring 13 Kanals 7 Marlas was REGULAR SECOND APPEAL NO.3447 OF 2007 -2- already under mortgage with possession with the plaintiffs for Rs.1,30,000/-. The said mortgage money was agreed to be adjusted out of sale consideration. Defendant No.1 was to get the mortgages of Shammi etc. and of Punjab National Bank, redeemed and was also to pay the decretal amount of Surinder Singh and to get the attached land released. Sale deed was to be executed upto 02.02.1996. Plaintiffs always remained ready and willing to perform their part of contract, but defendant No.1 has committed breached thereof. On the other hand, defendant No.1 got filed a suit against himself from his sons defendant, Nos.4 to 6. The said suit was dismissed by the trial court, but in first appeal, defendant Nos.4 to 6 were declared to be owners in joint possession of 3/4th share of 38 Kanals 5 Marlas land out of total 78 Kanals 5 Marlas land of defendant No.1 vide judgment and decree dated 09.08.1995 of the first appellate court. The said decree has also been challenged in the suit being null and void, as defendant No.1 in collusion with defendant Nos.4 to 6 conceded their claim in the said first appeal leading to the passing of said decree. The said decree is also vague without specifying the detail of the land decreed in favour of defendant No.4 to 6. Accordingly, plaintiffs filed suit for possession of the suit land (23 Kanals 9 Marlas) by specific performance of the impugned agreement to sell and also sought declaration that aforesaid decree dated 09.08.1995 in favour of defendant Nos.4 to 6 is null and void. Defendant No.1 broadly denied the plaint allegations. He denied having agreed to sell the suit land to the plaintiff or having executed alleged agreement. Defendant No.1 alleged that he had agreed for additional mortgage of the land in favour of plaintiffs for total mortgage amount of Rs.2,52,000/- including the earlier mortgage amount of Rs.1,30,000/- and thus defendant No.1 received Rs.1,22,000/- only from the plaintiffs. The plaintiffs obtained thumb REGULAR SECOND APPEAL NO.3447 OF 2007 -3- impressions of defendant No.1 and signatures of defendant No.5 Sukha Singh on blank stamp papers for the purpose of additional mortgage deed but forged the impugned agreement. Decree in favour of defendant Nos.4 to 6 was pleaded to legal and valid. Defendant Nos. 4 to 6 also broadly took the same stand. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Kharar vide judgment and decree dated 24.10.1998 partly decreed the suit for specific performance of the impugned agreement relating to suit land measuring 23 Kanals 9 Marlas but declined to set aside the decree dated 09.08.1995 in favour of defendant Nos.4 to 6. First appeal preferred by defendant Nos.1 and 4 to 6 i.e. father and sons stands dismissed by learned Additional District Judge, Rupnagar vide judgment and decree dated 05.09.2007. Feeling aggrieved, defendant Nos.1, 5 and 6 have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. At the outset it may be mentioned that defendant No.1 was owner of 78 Kanals 5 Marlas land, out of which defendant Nos.4 to 6 were declared to be joint owners in possession to the extent of 3/4th share of 38 Kanals 5 Marlas land vide decree dated 09.08.1995. Consequently defendant No.1 still remained owner of land in excess of the suit land measuring 23 Kanals 9 Marlas even after excluding the shares of defendant Nos.4 to 6 pursuant to decree dated 09.08.1995. Consequently, said decree dated 09.08.1995 has not been set aside by the courts below. Even the plaintiffs, therefore, did not challenge this part of judgment and decree of the trial court. Plaintiffs have proved due execution of the impugned agreement by examining plaintiff No.1 Ranjit Singh as PW-1. He is signatory to the REGULAR SECOND APPEAL NO.3447 OF 2007 -4- impugned agreement on behalf of plaintiffs. Plaintiffs have also examined Jagir Singh PW-2 one of the attesting witnesses of the impugned agreement and Rajiv Bhardwaj, Advocate PW-3 who had drafted the impugned agreement. All of them have supported the plaintiffs' case and deposed that the impugned agreement was duly executed by defendant No.1 who received Rs.2,52,000/- as earnest money. All this evidence led by the plaintiffs is very cogent and sufficient to prove their case. Added to it, plaintiffs' case is further strengthened and corroborated by admission of contesting defendants that the impugned agreement has been thumb marked by defendant No.1 as executant and has been signed by Sukha Singh defendant No.5 as witness. It may be repeated that defendant No.5 is none else but son of defendant No.1. Consequently self- serving statements of defendants No.1 and 5 coupled with statement of Pritam Singh DW-2 are not sufficient to hold that the impugned agreement was not executed by defendant No.1 or that thumb impressions of defendant No.1 and signatures of defendant No.5 had been affixed on blank stamp papers. There is no reason why Mr. Rajiv Bhardwaj, Advocate would make a false statement against the defendants. There is also no reason why Jagir Singh PW-2 would depose falsely against the defendants. Concurrent finding recorded by both the courts below regarding due execution of the agreement by defendant No.1 and receipt of Rs.2,52,000/- by him is fully justified by the evidence on record and is supported by cogent reasons recorded by the courts below. Learned counsel for the appellants vehemently contended that the impugned agreement was forged. It was pointed out that spacing of the agreement at the end is narrow and it has also been mentioned that the agreement has also been witnessed by Sukha Singh defendant No.5. However, the contention cannot be accepted. The agreement has been typed with uniform REGULAR SECOND APPEAL NO.3447 OF 2007 -5- space except the date written at the end of the body of the agreement. Perusal of the agreement reveals no circumstance to hold it to be forged or fabricated one or to have been typed on blank stamp papers already bearing thumb impressions of defendant No.1 and signatures of defendant No.5. Learned counsel for the appellants also contended that plaintiffs did not plead that they had appeared before the Sub-Registrar on 02.02.1996 the date stipulated in the agreement for execution of sale and, therefore, it cannot be said that plaintiffs have always been ready and willing to perform their part of the contract. It was also pointed out that alleged notice was sent by plaintiffs to defendant No.1 under postal certificate and, therefore, it cannot be said that any such notice was actually sent. The contention is misconceived. Firstly, the plaintiffs have placed on record affidavit dated 02.02.1996 Exhibit P-2 affirmed by plaintiff No.1 on 02.02.1996 depicting that he appeared before the Sub-Registrar on that date to get the sale deed executed in terms of the agreement. Secondly, notice Exhibit P-3 has also been produced in evidence. The said notice was also pleaded in the plaint. The said notice was sent not only under postal certificate Exhibit P-5 but also by registered post vide postal receipt Exhibit P-4 and, therefore, the same is presumed to have been delivered to defendant No.1. Thirdly and most importantly, the suit itself was filed on 12.03.1996 i.e. without any delay after the date stipulated in the agreement for execution of the sale deed. Fourthly defendants have even denied the execution of the impugned agreement by defendant No.1 depicting that he was never ready and willing to perform his part of contract. Thus examined from any angle, it is manifest that the plaintiffs have always been ready and willing to perform their part of contract whereas defendant No.1 committed breach thereof. REGULAR SECOND APPEAL NO.3447 OF 2007 -6- Learned counsel for the appellants next contended that details of mortgage of land with Shaami etc. and with Punjab National Bank and details of decreetal amount of Surinder Singh have not been mentioned in the impugned agreement. However, factum of the said mortgages and money decree has been mentioned in the impugned agreement and omission to mention the details thereof would not vitiate the agreement in any manner. Learned counsel for the appellants also contended that the decree could not be passed for specific numbers of the suit land when defendant Nos.4 to 6 had also become co-sharers in the suit land. This contention also cannot be accepted because decree dated 09.08.1995 in favour of defendant Nos.4 to 6 was suffered by defendant No.1, after the date of impugned agreement 13.07.1995, by conceding their claim. Moreover, by the said decree, defendant nos.4 to 6 were declared to be co-sharers to the extent of 3/4th share in 38 Kanals 5 Marlas land without specifying the details thereof and consequently, it cannot be said that defendant Nos.4 to 6 have also become co-sharers in the suit land measuring 23 Kanals 9 Marlas. Sukha Singh defendant No.5 himself is witness to the impugned agreement, which is for sale of specific numbers of suit land measuring 23 Kanals 9 Marlas. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding by the courts below in favour of plaintiffs does not suffer from any illegality or perversity so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is accordingly dismissed. ( L. N. MITTAL ) JUDGE 13.01.2011 'raj'