Regular Second Appeal No. 4268 of 2005 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 4268 of 2005 Date of Decision: 27.11.2008 Harbans Singh and Others …Appellants Versus Chamkaur Singh and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Jasmail Singh Brar, Advocate for the appellants. Mr. D.S.Brar, Advocate for the respondents. Kanwaljit Singh Ahluwalia, J. (Oral) The entire edifice built upon the second agreement fall on the ground as plaintiffs' own witness PW.6 Ved Bhushan Aggarwal, Document Writer, in his testimony had not stated regarding the execution of second agreement to sell. Learned counsel for the appellants states that there was a lapse on the part of the trial Court counsel, therefore, an application was filed and the same was dismissed. However, learned counsel is unable to state as to why the application not further taken to logical conclusion and as to how the same attained finality. Learned counsel has also not been able to assail the circumstances taken by the two Courts below that for alleged receipt, appellant/plaintiff is facing prosecution. Rightly, two Courts Regular Second Appeal No. 4268 of 2005 2 below have taken this as a suspicious circumstance to discard the testimony of plaintiffs. Having spelt out this broad feature of the case, it will be necessary to notice facts of the case. Plaintiffs had filed a suit for specific performance of agreement against the defendants regarding the sale of land, detailed and described in the plaint. A further prayer was made in the suit that the plaintiffs are entitled to recovery of Rs.3,645/-, which was received by the defendants in excess. The suit also contained an alternative prayer that a recovery of Rs.1,63,100/- along with interest of 2% is to be effected. Another declaration prayed for in the suit was that sale deed no. 903 dated 5.6.1996 executed by defendant No.1 in favour of defendants No.2 to 4 qua land measuring 40 kanals 8 marlas for a sum of Rs.2,52,500/- being forged, fabricated and without consideration, be set aside. In the body of the plaint, it was stated that Chamkaur Singh was in possession of the suit land and his mother Punjab Kaur was also owner in possession of the land to the same extent. It was stated that on 25.10.1989, Chamkaur Singh had executed an agreement to sell of the suit land to the plaintiff at the rate of Rs.31,000/- per killa and received Rs.25,000/- as earnest money. Sale deed was to be executed upto 30.12.1990. It was noticed in the agreement that in case defendants failed to execute the sale deed, plaintiffs will be entitled to get the same executed through the Civil Court and in case plaintiffs failed to comply with the agreement the earnest money was to be forfeited. It was stated that agreement to sell Ex.P3 was for sale of land measuring 41 kanals 3 marlas and sale deed Ex.D1 effected was for 32 kanals of land. It was also stated in the suit that there was another agreement to sell which Regular Second Appeal No. 4268 of 2005 3 has not been given effect to by the defendants. A written statement was filed by defendant No.1. He alleged that second agreement to sell is a forged and fabricated document and this also pertains to the same land. It was further stated that sale deed was executed with consent of both the sides after deducting the land falling in the water course, therefore, sale deed was effected regarding 32 kanals of land in favour of Nasib Kaur wife of plaintiff No.1. Replication was filed on basis of which the following issues were framed:- 1. Whether the defendant executed agreement of sale of the suit land in favour of the plaintiffs on 25.10.89 on receipt of Rs.25,000/- as earnest money? OPP. 2. If issue No.1 is proved, whether the plaintiffs always remained ready and willing to perform their part of the agreement/contract? OPP. 3. Whether the defendant obtained Rs.1,38,100/- more from the plaintiffs on 27.1090? OPP. 4. Whether the agreement of sale of land measuring 41 kanals, 3 marlas was separately executed by Punjab Kaur, mother of the defendant? OPP. 5. Whether the suit is bad for non-joinder of necessary parties? OPP. Regular Second Appeal No. 4268 of 2005 4 6. Whether the suit is not maintainable in this form? OPP. 7. Whether the plaintiffs are estopped from filing the suit for their own act and conduct? OPD. 7A. What is effect of alienating/transfer made by defendant No.1 in favour of defendants No.2 to 4 during the pendency of suit? OPD. 8. Whether the suit is not within limitation? OPD. 9. Relief. Plaintiffs examined ten witnesses. Defendants also examined four witnesses. Witnesses from both the sides included Handwriting Experts also. Learned trial Court appreciated the evidence, considered the same threadbare and found that since PW.6 Ved Bhushan Aggarwal had not said a word regarding second agreement to sell, therefore, second agreement to sell as alleged was non-existent. It further held that Ex.D1 sale deed had been executed by the defendants in pursuance of agreement to sell Ex.P3. Learned trial Court also took into consideration the fact that receipt Ex.PW7/A was a false and fabricated document. The Court also took into consideration the fact that Rajinder Singh alleged scribe of PW7/A appeared as DW.1. Learned trial Court held that PW.10 Gurdev Singh examined by the plaintiffs is not a Regular Second Appeal No. 4268 of 2005 5 reliable witness. Therefore, a finding was returned by learned trial Court that agreement to sell Ex.P3 was executed by defendant No.1 and his mother Punjab Kaur as a result of which Ex.D1 sale deed has been executed by Punjab Kaur in favour of Nasib Kaur, wife of plaintiff No.1 Harbans Singh PW.7. Aggrieved against the same, plaintiffs had filed an appeal. Learned lower Appellate Court along with factors considered by learned trial Court, while appreciating evidence, also took into consideration the fact that for the alleged receipt, plaintiff No.1 has been summoned as an accused in a criminal complaint. Learned lower Appellate Court further relied upon para 4 of the plaint to hold that sale deed Ex.D1 was executed with the consent of the plaintiffs by Punjab Kaur, mother of defendant No.1 in their favour. Therefore, agreement to sell Ex.P3 stood satisfied by execution of sale deed Ex.D1. I have heard Mr. Jasmail Singh Brar, Advocate, appearing for the appellants. He has stated that even though Deed Writer PW.6 Ved Bhushan Aggarwal had not stated anything regarding the second agreement to sell but that was a mistake. He has stated that it was a lapse on the part of the counsel in the trial Court, therefore, oral testimony of plaintiff Harbans Singh who was examined as PW.7 should be believed by this Court as the same is probable, natural and convincing. Appreciation of evidence has been done by the two Courts below. Re-appreciation and re-appraisal of evidence is not permissible in regular second appeal. The view formulated by the two Courts below is the one view which is possible. This Court cannot draw inference from Regular Second Appeal No. 4268 of 2005 6 the testimony of witnesses as learned counsel for the appellants say that they ought to have been inferred. This Court has to apply a test whether the finding of the two Courts below are perverse or not. It was entirely in the domain of two Courts below while appreciating the evidence to grant credence to which version, out of two versions projected by plaintiffs and defendants. Two Courts below have found that evidence led by the defendants aspire confidence and evidence of the plaintiffs is not trustworthy because of many suspicious circumstances. Therefore, no substantial question of law is made out which could detain attention of this Court. Hence, there is no merit in the present appeal and the same is dismissed. (Kanwaljit Singh Ahluwalia) Judge November 27, 2008 “DK”