Regular Second Appeal No. 2395 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2395 of 2008 Date of Decision: August 26, 2009 Siri Krishan ......... Appellant versus Amar Singh and others .......... Respondents Present:- Shri Jagat Singh, Advocate for the appellant. Shri Jitender Nara, Advocate for respondent No.1 HEMANT GUPTA, J. Defendant No. 4 is in second appeal aggrieved against the judgment and decree passed by the learned Courts below whereby suit for specific performance of agreement to sell dated 20.10.1997 in respect of land measuring 5 Kanals 9 Marlas, was decreed. Smt. Khazani, defendant No.1, was the owner of the suit land. As per plaintiff, she entered into an agreement to sell the aforesaid land for a consideration of Rs.1,10,000/-. She received Rs.60,000/- as earnest money and the balance consideration was to be paid on or before 17.06.1998 i.e., the date fixed for the execution of the sale deed. However, before the said date Smt. Khazani executed a sale deed in favour of defendants No.3 and 4 on 6.3.1998 which led to the filing of the present suit for specific performance on 12.08.1998. Regular Second Appeal No. 2395 of 2008 [2] Smt. Khazani has not contested the suit, whereas in the written statement filed on behalf of defendants No.3 and 4, it was asserted that they are in possession of the suit land as mortgagees in pursuance of the registered mortgage deed dated 22.5.1996 in the sum of Rs.10,000/-. On 29.12.2996, defendants No.1 and 2 agreed to sell land measuring 5 Kanals 9 Marlas for a total consideration of Rs.70,000/- out of which Rs.50,000/- was received at the time of execution of the agreement and the sale deed was executed and registered on 6.3.1998. Since the defendants are purchasers on the basis of prior agreement to sell, they are bona fide purchaser for value and consideration. Both the learned Courts below have found that the alleged agreement dated 29.12.1996 is not proved to be executed and, therefore, defendants No.3 and 4 cannot be said to be bona fide purchasers for value and consideration. It has been found that though on 29.12.1996 Smt. Khazani received Rs.50,000/- but deferment of execution of sale deed for a period of one year and fixation of March 6, 1998 as the date for registration of sale deed does not seem to be plausible. For small payment of Rs.20,000/-, the execution of the sale deed cannot be deferred for that long period. It has been further found that Rishi Raj, attesting witness, is the real brother of defendant Jai Bhagwan. Smt. Khazani is his Bua i.e., father's sister. It is also admitted by DW1 that Smt. Khazani was brought to the complex of Tehsil Jhajjar for execution of the sale deed in clandestine manner. It was, thus, found that the agreement Exhibit D-2 dated 29.12.1996 has been executed by the defendants in collusion with each other and to defeat the right of the plaintiff over the suit land. With the said finding, the suit was decreed. Regular Second Appeal No. 2395 of 2008 [3] In appeal, the findings recorded by the learned trial Court were affirmed. It was also found that agreement Exhibit D-2 is purportedly written on a plain paper, whereas agreements of such nature are written on stamp paper. Still further, Rattan Singh defendant No.3 in his cross- examination admitted that agreement was also scribed on the said date when sale deed dated 6.3.1998 was executed. Still further, it has been found that the present appellant has not appeared as a witness and there is no reference of mortgage in the revenue record. Consequently, the appeal was dismissed. In the present appeal, learned counsel for the appellant has vehemently argued that though agreement dated 29.12.1996 is executed on a plain paper but the deficient duty was paid when the said agreement was produced in evidence and, therefore, the reasoning that the agreement is on plain paper does not survive. However, the said argument is not tenable. By payment of deficient stamp paper, only the document is admitted in evidence and the objection regarding stamp duty is not available but the fact that agreement is written on a plain paper is not rebutted. The consequence of writing such an agreement on a plain paper is that such document can be created at any point of time. There is no reference of the aforesaid agreement to sell in the sale deed dated 6.3.1998. The sale deed 6.3.1998 has been executed for a total consideration of Rs.70,000/- out of which Rs.10,000/- is the amount of mortgage and Rs.50,000/- is purportedly paid on 29.12.1996. Since meager amount of consideration was to be paid at the time of registration, there is no reason as to why the execution of the sale deed was deferred till 6.3.1998. It only shows that document Exhibit D-2 dated 29.12.1996 has been fabricated so as to defeat the right of the plaintiffs. Such agreement has rightly not been taken into consideration by Regular Second Appeal No. 2395 of 2008 [4] the learned Courts below. Both the learned Courts below have recorded findings of fact and it has not been pointed out that any evidence has not been taken into consideration or has been misread. In view of the above, I do not find that any substantial question of law arises for determination by this Court in second appeal. Dismissed. August 26, 2009 ( HEMANT GUPTA ) ks JUDGE