R. S. A. No. 131 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 131 of 2008 Date of Decision : May 04, 2011 Smt. Premo and others .... Appellants Vs. Jaili Ram .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. K. D. S. Hooda, Advocate for the appellants. Mr. Amit Jain, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : Defendants Premo etc., who were successful in the trial court, but have been unsuccessful in the lower appellate court, have filed the instant second appeal. Suit was filed against defendants/appellants by Jaili Ram – respondent/plaintiff for possession of suit land measuring 48 kanals by specific performance of agreement to sell dated 07.09.1996 alleging that Ramphal agreed to sell the suit land to the plaintiff for Rs.5,00,000/-and R. S. A. No. 131 of 2008 2 received Rs.3,00,000/- as earnest money and executed aforesaid agreement dated 07.09.1996. Sale deed was to be executed up to 05.06.1998. Accordingly, plaintiff went to the office of Sub Registrar on 05.06.1998 to get the sale deed executed in terms of the agreement, but Ramphal vendor did not turn up. Notice by registered post was also sent to him. Ramphal has since died and has been succeeded by defendants as his heirs being his mother, widow, minor son and minor daughter. Notice dated 15.03.1999 was also sent to the defendants for executing the sale deed on 19.04.1999 in terms of the agreement, but the defendants did not do the needful. Plaintiff has always been ready and willing to perform his part of the contract, but the defendants and their predecessor Ramphal committed breach thereof, necessitating the filing of the suit. Defendants broadly denied the plaint allegations. It was denied that Ramphal agreed to sell the suit land to the plaintiff or received Rs.3,00,000/- from the plaintiff or executed the alleged agreement. It was pleaded that Ramphal had many vices and used to remain drunk and the plaintiff may have obtained his signatures while he was drunk. The impugned agreement is forged. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Narwana, vide judgment and decree dated 16.03.2004, dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned District Judge, Jind, vide judgment and decree dated 15.10.2007 and R. S. A. No. 131 of 2008 3 thereby, suit filed by the plaintiff has been decreed. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. The impugned agreement was scribed by Priti Pal – deed writer (since deceased). His brother Bhushan Pal appeared as PW-1 and identified the impugned agreement to be in handwriting of Priti Pal. Rajinder – PW-2 is attesting witness of the impugned agreement, who broadly supported the plaintiff's version. However, signatures of Rajinder on the impugned agreement have been torn as part of the agreement is torn/rat eaten, but photostat copy of impugned agreement bearing his signatures is there on the record. Plaintiff Jaili Ram himself appeared as PW-3 and stated according to his version. PW-5 Kuldeep Singh – Land Valuation Officer from the Bank produced bank records regarding loan taken by Ramphal (since deceased). PW-4 Yashpal Chand Jain – fingerprint expert compared the disputed thumb impressions of Ramphal on the impugned agreement with his standard thumb impressions in the bank record and found the same to be matching. On the other hand, Premo – defendant no.1 appeared as DW-1. Defendants also examined Rameshwar as DW-2. Both of them broadly stated according to the defendants' version. Learned counsel for the appellants vehemently contended that impugned agreement does not bear signatures of Rajinder (PW-2), whereas R. S. A. No. 131 of 2008 4 the other attesting witness of the agreement namely Krishan Kumar has not been examined. It was also contended that thumb impressions in the bank record, which were taken as standard thumb impressions by the finger-print expert, might not necessarily be the thumb impressions of Ramphal – predecessor of the defendants. It was also submitted that there is cutting and alteration in the impugned agreement regarding earnest money of Rs.3,00,000/-, and therefore, the agreement is suspicious. On the other hand, learned counsel for the respondent-plaintiff contended that Kuldeep Singh (PW-5) stated that he knew Ramphal personally and the bank documents in question were thumb marked by him. It was also pointed out that Rajinder (PW-2) is marginal witness of the agreement and has supported the plaintiff's case. Bhushan Pal (PW-1) has also identified the handwriting of his brother Priti Pal – document writer on the impugned agreement. Thumb impressions on the impugned agreement are also proved to be of Ramphal, as per opinion of finger-print expert Yashpal Chand Jain (PW-4). I have carefully considered the rival contentions. The plaintiff has led all possible evidence to prove his case. His testimony is supported by one attesting witness and also brother of the deceased document writer, who scribed the impugned agreement. In addition to it, thumb impressions on the impugned agreement are proved to be of Ramphal in view of statements of Yashpal Chand Jain – fingerprint expert (PW-4) and Kuldeep R. S. A. No. 131 of 2008 5 Singh (PW-5). As noticed herein before, Kuldeep Singh stated that he personally knew Ramphal, who affixed thumb impressions on the bank documents. The said documents also had photograph of Ramphal. Defendants have not even asserted that said photograph is not of their predecessor Ramphal or was of some other Ramphal son of Jug Lal. It is thus proved that standard thumb impressions in the bank record were of defendants' predecessor Ramphal. Science of fingerprint comparison is a perfect science. Consequently, thumb impressions on the impugned agreement are also proved to be of Ramphal. As regards cutting and alteration in the impugned agreement, the same is at one place only and it was also attested by Ramphal by putting separate thumb impression. Moreover, the said cutting and alteration depicts that initially, earnest money of Rs.1,50,000/- was mentioned, but by cutting and alteration, it was mentioned to be Rs.1,50,000/- + Rs.1,50,000/- totalling Rs.3,00,000/-. This cutting and alteration does not effect the impugned agreement because in subsequent part thereof, earnest money of Rs.3,00,000/- has been repeated at three places without any cutting or alteration. From the aforesaid discussion, it emerges that the plaintiff has successfully proved the execution of the impugned agreement by Ramphal. The plaintiff always remained ready and willing to perform his part of the contract. However, defendants committed breach thereof. Plaintiff's suit R. S. A. No. 131 of 2008 6 has, therefore, been rightly decreed by the lower appellate court. Finding of lower appellate court in favour of plaintiff is justified by evidence on record. Plaintiff's evidence is not rebutted by evidence of defendants i.e. statement of defendant no.1 Premo as DW-1 and another witness Rameshwar as DW-2. They simply stated that Ramphal was drunkard. However, admittedly, Ramphal was never challaned by the police regarding his drinking habits or for any other reason nor any complaint was ever made to Panchayat etc. in this regard. Defendants' witnesses had no personal knowledge about execution of the impugned agreement by Ramphal. Consequently, statements of these witnesses do not carry much probative value. Finding of the lower appellate court is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not call for interference in second appeal. No question of law, much less substantial question of law, arises for adjudication in the instant second appeal. The appeal lacks any merit and is accordingly dismissed. May 04, 2011 ( L. N. MITTAL ) monika JUDGE