RSA No.3399 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3399 of 2009 (O&M) Date of Decision: December 07, 2009 Karnail Singh ...........Appellant Versus Amarjeet Kaur and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.O.P.Hoshiarpuri, Advocate for the Appellant. ** Sabina, J. Plaintiff-Karnail Singh filed a suit for possession by way of specific performance. The suit of the plaintiff was dismissed by the Civil Judge (Junior Division) Ferozepur vide judgment and decree dated 16.2.2008. The appeal filed by plaintiff was dismissed by the Additional District Judge Ferozepur vide judgment and decree dated 26.5.2009. Hence, the present appeal by the plaintiff. The facts of the case, as noticed by the Additional District Judge in paras 2 to 4 of its judgment, read as under:- “ 2.The physical contours of the plaintiff's case, as reflected in the plaint, in brief is that defendant no.1 Gurnam Kaur, being owner of the suit land, entered into an agreement to sell dated 13.11.1997 in favour of the plaintiff for sale of the suit land at the rate of Rs. 1,00,000/- per killa and received Rs. 4,00,000/- as RSA No.3399 of 2009 (O&M) 2 earnest money.The possession of the suit land was delivered to the plaintiff at the time of execution of the agreement. The sale deed was agreed to be executed on or before 4.2.1998 on payment of balance sale consideration. Since the date of agreement, the plaintiff has always willing and is still ready and willing to perform his part of agreement. In the month of January,1998, the plaintiff came to know that defendant no.1 is intending to alienate the suit land in favour of defendants no.2 and 3,whereupon the plaintiff presented the original agreement in question but to no effect and ultimately defendant no.1 executed sale deed dated 19.8.1990 qua 24 kanals of land out of the land in dispute in favour of defendant no.2. Similarly, she executed another sale deed dated 20.1.1998 regarding the sale of land measuring 24 kanals in favour of defendant no.3. These sale deeds are illegal, null and void. Subsequently, defendant no.2 further sold land measuring 23 kanals 19 marlas to Gurdev Singh and Maan Singh. Vide sale deed dated 23.2.1998 and defendant no.3 sold land measuring 16 kanals 2 marlas to aforesaid Gurdev Singh and Maan Singh vide sale deed dated 9.3.1998, during pendency of the suit. Defendant no.1 further sold remaining 4 kanals of land out of the suit land to Gurmukh Singh vide sale deed dated 4.3.1998. However, on the stipulated date, the plaintiff attended the office of Sub Registrar alongwith balance sale consideration and other expenses for registration of the sale deed in his favour, as per agreement in question but the defendant no.1 did not turn up.Ultimately, the plaintiff got his presence marked by moving an RSA No.3399 of 2009 (O&M) 3 application before the Sub Registrar. The plaintiff requested the defendant no.1 to execute the sale deed in his favour but to no effect, hence, the suit. 3. Before filing written statement, defendant no.1 expired and her estate is represented by defendants no. 2,3 and 7. Defendants no. 2 and 3 filed their separate written statement and contested the suit primarily on the ground that the alleged agreement dated 13.11.1997 is forged and fabricated document set up by the plaintiff with a view to grab the property of Gurnam Kaur. Defendant no.1 (since deceased) in connivance with marginal witnesses. The defendants are bona fide purchaser of the suit land for valuable consideration without notice of the alleged agreement. The sale in their favour is protected under Section 53 of the Transfer of Property Act. They asserted that Gurnam Kaur never executed any agreement nor received any earnest money. Even otherwise also no prudent person would have paid such a huge amount without taking the possession or would wait for registration of the sale deed. The other allegations were denied. 4. Defendants No. 4 to 6 filed their separate written statement and contested the suit on the same lines as defendants no. 2 an 3. They also asserted that the alleged agreement to sell dated 13.11.1997 is forged and fabricated document and sale deeds in their favour are for consideration and without notice of the alleged agreement to sell. They have denied rest of the averments of the plaint and prayed for dismissal of the suit. On the pleadings of the parties, the following issues were RSA No.3399 of 2009 (O&M) 4 framed by the trial Court:- “1. Whether Gurnam Kaur executed the agreement of sale on 13.11.1997 in favour of plaintiff for valuable consideration?OPP 2.Whether the plaintiff is ready and willing to perform his part of the contract?OPP 3.Whether the plaintiffs is entitled to relief of specific performance of alternate relief of recovery, in case issues no. 1 and 2 are proved?OPP 4.Whether defendant no. 2 and 3 are bonafide purchaser for valuable consideration and without notice on the basis of two sale deeds dated 19.1.1998 executed by defendant no.1 in their favour?OPD 5.Relief.” After hearing the learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Appellant-plaintiff had filed the suit seeking possession by way of specific performance of an agreement to sell Exhibit P20 dated 13.11.1997. Plaintiff-appellant technically succeeded in proving the execution of the agreement to sell by examining the attesting witnesses. The plea taken by the defendant was that the agreement to sell in question was a result of fraud. The plea of defendant further was that Gurnam Kaur was never present at the time of execution of the agreement to sell. The learned Additional District Judge in the judgment has observed that a perusal of the relevant entry qua Exhibit P20 in the register of the stamp vendor showed that the same did not bear the thumb impression of Gurnam Kaur. Although her name was mentioned against the entry. Subsequent two RSA No.3399 of 2009 (O&M) 5 entries were also made in favour of Gurnam Kaur but the same were also not thumb marked by Gurnam Kaur. DW5 Stamp vendor in the criminal case had deposed that Gurnam Kaur had not appeared before him at the time of purchase of stamp paper. However, in this case, DW5 stated that Gurnam Kaur had herself come at the time of purchase of the stamp paper. When the said witness was declared hostile, in his cross-examination, he deposed that he had been told that Gurnam Kaur would come and thumb mark the relevant entries. He also stated that he did not remember whether Gurnam Kaur had personally come to him for purchase of stamp paper. Moreover the stamp vendor had not maintained the register in a proper manner . There were many entries which were lying blank. In these circumstances, the Courts below rightly did not place reliance on the testimony of the stamp vendor. The case of the plaintiff was that at the time of execution of Exhibit P20, possession of the suit land had been given to him. However, the plaintiff failed to corroborate his plea by leading any documentary evidence in this regard. Plaintiff took up the plea that he had taken Rs.4,50,000/- from Gurbachan Singh at the time of execution of Exhibit P20. However, the plaintiff in order to substantiate his plea did not examine Gurbachan Singh as a witness. In these circumstances, the Courts below rightly held that the plaintiff has failed to establish that he had the amount required for payment of earnest money available with him. Both the attesting witnesses in the present case did not belong to village Malluwala where the suit land was situated. In these circumstances, the Courts below further rightly held that the agreement to sell in question was not a genuine document although RSA No.3399 of 2009 (O&M) 6 technically its execution had been proved by the plaintiff. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge December 07, 2009 arya