R.S.A.NO. 2946 OF 2005 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.NO. 2946 OF 2005 Date of decision: 13th October, 2009 Ram Lubhaya ......Appellant Versus Nanto and others .....Respondents Before: HON'BLE MR. JUCTICE RAJIVE BHALLA Present: Mr. Arun Sood, Advocate for Mr. Hitesh Pandit, Advocate for the appellant. Mr. Sudeep Mahajan, Advocate for the respondents. Rajive Bhalla, J.(Oral) The appellant challenges judgments and decrees dated 13.03.2001 and 24.12.2003, passed by the Additional Civil Judge (Senior Division), Tarn Taran and the Additional District Judge, Amritsar, dismissing his suit and his appeal respectively. The plaintiff-appellant filed a suit for specific performance pleading that defendant-respondent no. 1 had agreed to sell 5/34 share of land measuring 24 kanals 17 marlas by way of an agreement to sell dated 2.12.1988, executed through her attorney Hari Ram. It is also alleged that the total sale consideration was settled at Rs. 50,000/- per acre and Rs. 40,000/- was paid as earnest money. It was agreed that the balance sale consideration would be paid after adjusting Rs. 6,000/- received by Smt. Nanto, under a mortgage deed dated 18.06.1981. It was prayed that as respondent no. 1 has refused to execute the sale deed, the suit for specific performance be decreed. In response to the averments in the plaint, respondent no. 1 pleaded that she did not authorise her attorney. Hari Ram to execute 1 R.S.A.NO. 2946 OF 2005 any agreement or sale deed as he was only empowered to look after civil litigation. It was further pleaded that the agreement dated 2.12.1988, is an act of fraud. The other respondents filed a written statement claiming that they are owners in possession, pursuant to a sale deed dated 18.11.1992, executed by respondent no. 1. On the basis of the pleadings of the parties, the trial court framed the following issues:- 1. Whether Smt. Nanto through attorney executed an agreement dated 2.12.1988 in favour of plaintiff and received Rs. 40,000/- as earnest money? OPP 2. Whether the plaintiff was ready and willing and is still ready and willing to perform his part of contract? OPP 3. Whether the plaintiff is entitled to a decree for specific performance of the contract dated 2.12.1988 and for joint possession of 1/3rd share in land measuring 67 kanals 4 marlas? OPP 4. Whether the plaintiff in the alternative, if entitled to a decree for the recovery of Rs. 80,000/-? OPP 5. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 6. Whether the suit is within limitation? OPP 6-A) Whether Nanto defendant No. 1 appointed Hari Ram to be general attorney? OPP 6-B) Whether defendant Nos. 2 and 3 are bonafide purchasers of the suit land vide sale deed dated 18- 11-1992 without notice of the alleged agreement? OPD. 2 R.S.A.NO. 2946 OF 2005 7) Relief. After considering the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit by holding that the appellant had failed to prove the execution of the agreement. It was held that the appellant had failed to prove the signatures of Hari Ram attorney, on the agreement. It was further held that as the appellant and Hari Ram attorney are father and son, the appellant appears to have manipulated the agreement to sell, so as to misappropriate the property belonging to respondent no. 1, who is none other than the real sister of his father, Hari Ram. The trial court also found, as a matter of fact that the earnest money was never received by Smt. Nanto. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. Vide judgment and decree dated 24.12.2003, the Additional District Judge, Amritsar, dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellant submits that the agreement to sell stands proved by the deposition of the appellant and marginal witness. The courts below therefore, had no jurisdiction to hold that the agreement to sell has not been proved or has been brought into existence by perpetuating a fraud. It is submitted that the report submitted by a hand writing expert, produced by respondent no. 1 should have been rejected as being opinion evidence. It is further argued that the son of the deceased scribe appeared in the witness box and proved the hand writing and the signatures of the scribe. The mere fact that the appellant, respondent no. 1 and her attorney are close relatives is irrelevant, as respondent no. 1 does not deny that she mortgaged the land with the appellant through Hari Ram her attorney. In view of the errors committed by the courts below, counsel for the appellant states that the following substantial questions of law, 3 R.S.A.NO. 2946 OF 2005 arise for consideration:- i) Whether without specific denial in the written statement by the respondent/defendant relating to agreement to sell the agreement to sell can be held to be a forged document? ii) Whether the findings of the trial court on issue no. 1 to 4 collectively are legal? iii) Whether the impugned judgments and decrees are perverse and against the evidence led by the parties? iv) Whether the findings on the issue regarding the limitation of the suit can be decided as not pressed? Counsel for the respondents, however, submits that the proof of an agreement, is a question of fact. As both the courts below have recorded concurrent findings that the agreement has not been proved and as no substantial question of law, arises for adjudication, the appeal should be dismissed. It is further submitted that as the courts below have also held that the appellant has brought the agreement into existence by playing a fraud, the appeal should be dismissed. I have heard counsel for the parties, perused the impugned judgments and decrees, considered the questions of law framed by counsel for the appellant and express my inability to hold that the impugned judgments and decrees suffer from any error, or raise any substantial question of law much less the questions of law framed by counsel for the appellant. Both the trial court and the first appellate court have returned concurrent findings that the agreement was brought into existence by the appellant by playing a fraud. The appellant is son of 4 R.S.A.NO. 2946 OF 2005 Hari Ram who is the real brother and attorney of Smt. Nanto, respondent no. 1. It is not denied that Hari Ram had filed a suit to restrain respondent no. 1 from selling specific khasra numbers of the suit land and that suit was decreed. It is therefore, surprising that Hari Ram, who has a subsisting decree in his favour, would execute an agreement to sell in favour of his son, agreeing to alienate the suit land. It would also be necessary to mention here that a hand writing expert, was examined by respondent no. 1. The expert deposed that the signatures of Hari Ram, on the agreement to sell, are forged as they do not tally with his admitted signatures. The appellant, however, failed to rebut this report. The trial court took upon itself the duty to examine the signatures and held that even an ocular examination of signatures appears to suggest that they do not tally with the standard signatures of Hari Ram. The courts below have also disbelieved the testimony of the attesting witness and the son of the scribe. The arguments, therefore, that the deposition of the marginal witness, the son of the scribe and the deposition of the appellant, prove the execution of the agreement to sell are liable to be rejected. Other relevant facts, considered by the courts below, while holding that the agreement is a forgery are that the stamp paper is shown to have been purchased by Smt. Nanto though she was admittedly not present, the agreement was scribed at Tarn Taran whereas the appellant is a resident of village Sangar Kot, Tehsil Tarn Taran, District Amritsar and the attorney is a resident of Barnala. There is no evidence that the earnest money was received by respondent no. 1. As regards the substantial questions of law, suffice is to state that a perusal of the written statement discloses a specific denial of agreement to sell and a specific averment with respect to agreement to sell that it is false and fabricated. As regards the other 5 R.S.A.NO. 2946 OF 2005 questions of law, as it has already been held that the agreement to sell is a forged and fabricated document, these questions do no arise for consideration. In view of what has been stated hereinabove, as the impugned judgments and decrees do not suffer from any error of law, the appeal is dismissed with no order as to costs. [RAJIVE BHALLA] JUDGE 13th October, 2009 Shivani Kaushik 6