Regular Second Appeal No.2506 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2506 of 2009 Date of Decision:-16.8.2011 Sanjiv Kumar ...Appellant Versus Ram Pyari ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for the appellant. Mr. Ashish Gupta, Advocate for the respondent. M ehinder S ingh S ullar , J . (Oral) As the Courts below duly recapitulated and discussed the pleadings & evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same in the instant regular second appeal in this context. However, the contour of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, is that Sanjiv Kumar son of Sube Singh appellant-plaintiff (for brevity “the plaintiff”), filed the suit against Krishan Kumar son of Banarsi Dass (since deceased) defendant, now being represented by his LR Ram Pyari widow of Banarsi Dass (for short “the original defendant”) for a decree of possession, by way of specific performance of the agreement dated 7.8.2000 (Ex.P2) in respect of the land in dispute. 2. The case set up by the plaintiff, in brief in so far as relevant, was that the original defendant was the owner of the suit land. He entered into an agreement to sell (Ex.P2) in his favour for a total consideration amount of ` 2,50,000/- and Regular Second Appeal No.2506 of 2009 -2- received an amount of ` 1,50,000/- as earnest money. The balance sale consideration of ` 1 lac was to be paid at the time of execution of the sale deed on 15.9.2000. The parties were stated to have agreed that in case the original defendant fails to perform his part of contract, then, the plaintiff would be entitled to get the sale deed executed/registered through the process of Court of law and in case failure to perform his part of contract is on the part of the plaintiff, then, the earnest money shall be forfeited. 3. Levelling a variety of allegations and narrating the sequence of events, in all, according to the plaintiff that he always remained ready and willing to perform his part of contract, but the original defendant has faulted in this respect. The plaintiff was stated to have marked his presence in the office of Sub Registrar, Assandh, by filing his affidavit on 15.9.2000, but the defendant did not return to get the sale deed executed and registered. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of possession for specific performance of contract against the original defendant, in the manner indicated hereinabove. 4. The original defendant contested the suit and filed his written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, court fee, jurisdiction, cause of action and locus standi of the plaintiff. He claimed that neither he executed any agreement to sell in favour of plaintiff on 7.8.2000 nor received any earnest money, as alleged by him (plaintiff). The execution of the indicated agreement was stated to be result of fraud and mis- representation. He explained that the plaintiff, aged about 20 years, was a student of LLB at Kurukshetra at the relevant time. He has neither the capacity to pay huge amount of ` 2,50,000/- nor he actually paid the earnest money. One Pala Ram alias Dharam Pal and Dharam Singh took and served the original defendant heavy drinks and they attempted to obtain his thumb impressions on some papers under the influence of liquor. It was alleged that the plaintiff has filed a false suit within Regular Second Appeal No.2506 of 2009 -3- a period of six days of the agreement, without giving any registered notice to him. It will not be out of place to mention here that the original defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- 1. Whether the defendant entered into an agreement for sale of the land dated 7.8.2000 of the land detailed in para no.1 of the plaint for sale consideration of Rs.2.50 lacs and whether the defendant received a sum of Rs.1.50 lacs as earnest money and plaintiff received possession in pursuance of agreement to sell?OPP 2. Whether the balance sale consideration of Rs.1,00,000/- was to be paid by the plaintiff to the defendant at the time of execution and registration of sale deed dated 15.9.2000?OPP 3. Whether the plaintiff is still ready and willing to perform his part of contract?OPP 4. Whether the agreement to sell is without consideration?OPD 5. Whether the plaintiff has no cause of action against the defendant?OPD 6. Whether no proper court fee has been affixed?OPD 7. Whether the agreement to sell is a forged document having been brought about by fraud and mis-representation?OPD 8. Relief. 6. In order to substantiate their respective pleaded cases, the parties to the lis, produced on record the oral as well as documentary evidence. 7. The trial Court, after taking into consideration the entire evidence on record, dismissed the suit of the plaintiff, by means of impugned judgment and decree dated 2.5.2007. 8. Aggrieved by the decision of the trial Court, the plaintiff filed the appeal, which was dismissed with costs as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 23.4.2009. Regular Second Appeal No.2506 of 2009 -4- 9. Still, he did not feel satisfied with the impugned judgments and decrees of the Courts below and filed the present regular second appeal. 10. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the instant appeal in this context. 11. Ex facie, the celebrated argument of learned counsel that since the plaintiff has duly proved the execution of the agreement to sell (Ex.P2), so, the Courts below committed a legal mistake in ignoring the same and in dismissing his suit, is neither tenable nor the observations of Andhra Pradesh High Court in case Jaksani Lakshman Rao & Ors v. Ellandula Ravinder 2007(2) Civil Court Cases 284 (A.P.) (DB) and of Kerala High Court in case B.M.Ahamed and another v. K.Gangadharan 1990 Civil Court Cases 791 (Kerala) are at all applicable to the facts of the present case, wherein, it was observed that the agreement if not required to be attested, then, it is not incumbent upon the parties to examine and non-examination of such attesting witnesses does not vitiate the very execution of the agreement and when the document is admitted to bear signatures, then the burden of proof shifts upon the person, alleging execution nugatory. 12. Hardly, there is any dispute with regard to the aforesaid observations, but the same are not helpful to the case of the appellant-plaintiff in the instant controversy. 13. As is evident from the record that plaintiff filed the suit for specific performance on the basis of agreement to sell (Ex.P2). According to original defendant, Pala Ram alias Dharam Pal and Dharam Singh took him to get advantage of drunken condition and attempted to obtain his thumb impressions on blank papers and then tried to convert the blank papers into agreement to sell. In that eventuality, a heavy burden of proof was on the plaintiff to prove, the due execution, genuineness of the agreement to sell (Ex.P2) and passing of the earnest money. He has miserably failed in this relevant connection. Regular Second Appeal No.2506 of 2009 -5- 14. The perusal of the record would reveal that as per the revenue record, the original defendant alone was not the owner, but he along with his brother and mother was co-sharer and in possession to the extent of 1/3rd share each at the relevant time. Hence, there was no occasion for him (original defendant) to enter into any agreement to sell the land in excess of his share. Above-all, the bare glance of agreement to sell (Ex.P2) would suggest that all the four thumb impressions, on both its paper sheets, are with the same ink pad, including the thumb impressions, allegedly obtained by the stamp vendor at the time of selling the stamp paper to him, as well as which would have been put after the typing of the document. Therefore, the agreement to sell was not executed in the natural course of business, but is a procured and fictitious document, which supports the case of the original defendant that his thumb impressions might have been obtained on blank papers under the influence of liquor. 15. Moreover, having completed all the codal formalities, the trial Court has listed the cogent reasons based on the appreciation of evidence and recorded the finding of fact that the original defendant never agreed to alienate the suit land to plaintiff for a sum of ` 2,50,000/- nor any earnest money was paid to him. The agreement to sell (Ex.P2) is not a valid and genuine document, rather, the thumb impressions were obtained by playing a fraud and trial Court has rightly dismissed the suit of the plaintiff. 16. Not only that, the decision of the trial Court was affirmed by the first appellate Court, by way of impugned judgment dated 23.4.2009, which, in substance, is (paras 25 to 27) as under:- “25. As above discussed and found, all the four thumb impressions, on both the paper sheets of the agreement to sell Ex.P2, are from the same ink pad, including thumb impression allegedly obtained by the stamp- vendor, at the time of selling the stamp-paper to him, as well as which would have been put after the typing of the document. It is a clincher to prove that agreement to sell Ex.P2, was not duly executed nor come into being in natural course of business, but is a procured forged and fictitious Regular Second Appeal No.2506 of 2009 -6- document. In normal course defendant Krishan Kumar, would have put his thumb impression at the time of purchase of the stamp paper and then would have put his other thumb impressions only after the writing of the agreement. There was no question for defendant Krishan Kumar to put his all the four thumb impressions one and the same time from one ink pad only. Similarly letters “LTI Krishan” at all the four places of the thumb impressions with same pen in same ink with one and the same handwriting, could not have been there in case the document would have been the genuine document. Again this fact, points toward fictitious and fraudulent nature of the document. 26. Jaipal Sharma document writer had given his affidavit in favour of Krishan Kumar and against Sanjiv Kumar, which is on record, but learned trial court, rightly did not consider it, because Jaipal Sharma could not be examined. 27. In the result, it is proved to the hilt that agreement to sell Ex.P2, is a forged and fictitious document. Findings of learned trial court in this regard on all the relevant issues are hereby affirmed and consequently, this appeal is hereby dismissed with costs.” 17. The learned counsel for the appellant-plaintiff did not point out any material, much less cogent, to contend as to how and in what manner, the impugned judgments and decrees of the Courts below are illegal and would invite any interference in this relevant connection. 18. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the above-mentioned concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant- plaintiff, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this behalf. Regular Second Appeal No.2506 of 2009 -7- 19. No other meaningful argument has been raised by the learned counsel for the appellant to assail the findings of the Courts below in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on his behalf, in this relevant direction, have already been duly considered and dealt with by the Courts below. 20. In this manner, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 21. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 22. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 16.8.2011 Judge AS Whether to be referred to reporter?Yes/No