R.S.A.No. 3606 of 2009(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No. 3606 of 2009(O&M) Date of Decision: 9.10.2009 Kulwant Singh --Appellant Vs. Nasib Chand -Respondent Coream: Hon’ble Mrs. Justice Sabina Present: Mr. Hardeep Singh Saini, Advocate For the appellant Sabina J. Plaintiff- Nasib Chand had filed a suit for possession by way of specific performance and permanent injunction. Civil Judge (Jr. Division), Samana, vide judgment and decreed dated 12.10.2006 dismissed the suit of the plaintiff. Aggrieved by the same plaintiff had filed an appeal. Additional District Judge, Patiala had accepted the appeal vide judgment and decree dated 22.4.2009. Hence, the present appeal by the defendant. Brief facts of the case as noticed by learned Additional District Judge, in paras 2 and 3 of its judgment are as under:- “2. The plaintiff filed the suit on the allegations that defendant being absolute owner in possession of suit land executed an agreement of sale of the same in favour of the plaintiff on 16.11.01 for R.S.A.No. 3606 of 2009(O&M) -2- consideration of Rs. 2 lacs per acre after receiving a sum of Rs. 4 lacs as earnest money. Sale deed was agreed to be executed and registered on or before 30.12.02. Possession was delivered to the plaintiff at that time. The plaintiff always remain ready and willing to perform his part of contract. He came present before the office Sub Registrar, Patran on 30.12.02 along with balance sale price and other expenses but defendant did not turn up. He got his presence marked by swearing and affidavit in this regard. Notice was sent to the defendant. Now the defendant is bent upon to alienate the suit land to some other person. 3. On notice defendant contested the suit by filing written statement taking preliminary objection of maintainability, concealment of material facts and cause of action. On merit, it is submitted that the plaintiff is doing the business of commission agent under the name and style of M/s Nasib Chand Singla, Commission Agent, Patran and defendant used to sale his produce at his shop. Defendant used to get the amount of his produce from the plaintiff and sometimes he also obtained advance from the plaintiff for the purpose of fertilizer etc. The plaintiff and his muneem used to get the thumb impression of the defendant in account book, on some blank papers, stamp paper and printed papers at the time of making payment to the defendant on the pretext that these are required to be shown in the income tax Dept. regarding payment made to the defendant. Defendant in good faith usually thumb marked the account books of the plaintiff. Defendant is an illiterate person and does know how to read and write. Defendant stopped selling his produce at the shop of R.S.A.No. 3606 of 2009(O&M) -3- the plaintiff and due to said grudge the plaintiff has filed this suit on false facts. Rest of the averments are denied being wrong and prayer is made for dismissal of the suit.” On the pleadings of the parties, following issues were framed by the trial court:- 1. Whether defendant executed an agreement to sell dt. 16.11.01 in favour of the plaintiff? OPP 2. Whether the plaintiff was ready and willing and still ready and willing to perform his part of the agreement to sell? OPP 3. Whether the plaintiff is entitled to possession of the suit land by way of specific performance of agreement to sell? OPP 4. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the plaintiff has no cause of action to filed the present suit ? OPD 7 Whether the agreement to sell dt. 16.11.01 is a fabricated document and is a result of fraud ? OPD 8.Whether the plaintiff had concealed the material facts from the court and has not come to the court with clean hands. If so, its effect?OPD R.S.A.No. 3606 of 2009(O&M) -4- 9.Whether suit is not properly valued for the purpose of court fee and jurisdiction ?OPD 10. Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit. Plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 16.11.2001. In order to prove due execution of the agreement to sell, in question, plaintiff examined Dharampal, the scribe of the agreement to sell as PW-2 and attesting witness to the agreement to sell Sh. Gurjant Singh as PW-3. Both the said witnesses deposed with regard to due execution of the agreement to sell. The scribe further submitted that he had made an entry with regard to the agreement to sell in his register at Sr. No. 247 dated 16.11.2001. The date fixed for execution of the sale deed was 30.11.2001. PW-4 Navdeep Gupta, Handwriting and Finger Print Expert had examined the thumb impression of the defendant-appellant on the agreement to sell in question and with his standard thumb impression and gave the opinion that the same were identical. Thus, the plaintiff had been successful in establishing the due execution of the agreement sell in question. Counsel for the appellant has submitted that the signatures of the appellant had been taken on the blank paper as the plaintiff was running the business of commission agent and the appellant was having dealing with the plaintiff. However, there is no force in the said arguments because the appellant had failed to establish that the agreement to sell in question was a result of fraud. There is nothing on record to suggest that thumb impression of the appellant did not exist on the register of the deed writer. The learned Appellate court has observed that although the execution of the agreement R.S.A.No. 3606 of 2009(O&M) -5- to sell had been proved yet it was in fact executed as a security for loan amount and decreed the suit of the plaintiff for recovery of Rs. 4 lacs which was paid as earnest money. The judgment passed by the learned Additional District Judge calls for no interference as learned Additional District Judge after appreciating the evidence on record has given a finding of fact that the agreement to sell in question was duly executed but it was for the purpose of securing the loan transaction between the parties. No substantial question of Law arises in the appeal for consideration. Accordingly, this appeal is dismissed. (SABINA) JUDGE 09.10.2009 paramjit