Regular Second Appeal No.4153 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.4153 of 2008 Date of decision : February 22, 2010 Ram Kishan ....Petitioner versus Smt. Shanti and others ....Respondents CORAM: HON'BLE MR. JUSTICE L.N. MITTAL Present : Mr. Dinesh Kumar Jangra, Advocate , for the appellant. Mr. Vishal Taneja, Advocate, for the respondents No.1 to 3. *** L.N. MITTAL, J. (ORAL) Plaintiff has come in Second Appeal, having remained unsuccessful in both the Courts below. Plaintiff filed suit for possession of 13 marlas land by specific performance of the agreement to sell dated 20.08.1992 alleging that defendants No.1 and 2 for themselves as well as on behalf of defendants No.3 to 7 (proforma respondents No.4 to 8) agreed to sell the suit land measuring 13 marlas to the plaintiff for sale consideration of Rs.10,000/-. Entire sale consideration was paid at the time of agreement. However, defendants No.1 and 2 have sold Regular Second Appeal No.4153 of 2008 2 their share measuring 4 marlas out of 13 marlas suit land to defendant No.8(respondent No.3 herein) vide registered sale deed dated 01.01.1993, which was also challenged in the suit. Defendants No.1 and 2 denied having executed agreement to sell dated 20.08.1992. It was pleaded that defendant No.2 had borrowed a sum of Rs.1,000/- from the plaintiff for one month but since defendant No.2 could not pay the same within the stipulated period, at the instance of plaintiff, defendants No.1 and 2 affixed their signatures/thumb impressions on blank paper brought by the plaintiff . Defendants No.3 to 7 also contested the suit and denied the agreement. Defendant No.8 pleaded that he is bonafide purchaser of the land from defendants No.1 and 2 for consideration and without notice of the alleged agreement. Before proceeding further, it may be noticed that defendants No.3 to 7 during the pendency of the suit sold their 9 marlas land out of 13 marlas suit land to the plaintiff vide sale deed dated 19.01.2000 and therefore, the dispute remains regarding remaining 4 marlas land only, which has already been sold by defendants No.1 and 2 to defendant No.8. Learned Civil Judge (Junior Division), Bhiwani vide judgment and decree dated 30.07.2001 dismissed the suit of the Regular Second Appeal No.4153 of 2008 3 plaintiff, finding the agreement to be suspicious and not proved. First appeal preferred by the plaintiff has been dismissed by learned Addl. District Judge, (Fast Track Court), Bhiwani vide judgment and decree dated 05.03.2008. Feeling aggrieved the plaintiff has preferred the instant second appeal. I have heard the counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that in sale deed dated 19.01.2000 executed by defendants No.3 to 7 in favour of the plaintiff, it has been recited that possession of the land had already been handed over to the plaintiff on 20.08.1992 at the time of execution of agreement Exhibit P/1. It is accordingly contended that the agreement Exhibit P/1 is therefore duly proved. The contention cannot be accepted. Defendants No.3 to 7 in the written statement denied the agreement. If subsequently the plaintiff, during pendency of the suit, procured sale deed from defendants No.3 to 7 regarding their share, any recital in the said sale deed by defendants No.3 to 7 would not be binding on defendants No.1, 2 and 8. and would have no adverse effect on their rights. The alleged recital in the sale deed by defendants No.3 to 7 is apparent result of their collusion with the plaintiff. But the same can have no bearing against rights of defendants No.1,2 and 8 who are not party to the said sale deed. Regular Second Appeal No.4153 of 2008 4 Learned counsel for the appellant also contended that defendant No.1 Shanti executed a power of attorney dated 19.03.2001 and in that power of attorney also there is reference to agreement to sell dated 20.08.1992 . However, Shanti while appearing as PW/9 has denied having executed the power of attorney. Moreover, this document was also created during pendency of the suit and can have no adverse effect against defendant No.8. Defendant No.1 had already sold her share in the suit land to defendants No.8 and therefore any power of attorney allegedly executed by defendant No.1 making reference to the agreement would have no effect against defendant No.8, who is not party to the power of attorney. Moreover, in the written statement, defendants No.1 and 2 have also denied execution of the agreement and even in the witness-box, defendant No.1 as court witness denied the execution of the alleged power of attorney wherein reference to agreement to sell is alleged to have been made. Learned counsel for the appellant also contended that the plaintiff has examined both the witnesses Mahipal PW/2 and Krishan PW/3 of the agreement. However, their statements have been analyzed by the Courts below and found to be not reliable. These witnesses did not even specifically state that contents of agreement Exhibit P/1 were read over and explained to defendants No.1 and 2 or that they signed the same, after admitting the contents to be correct. Regular Second Appeal No.4153 of 2008 5 Moreover, the learned lower Appellate Court has assigned numerous reasons holding the agreement Exhibit P/1 to be suspicious. Paragraphs No.14 of the judgment of the lower Appellate Court containing the said reasons is reproduced herein: “14. In order to prove issue No.1, plaintiff was required to show that he had entered into an agreement to sell with defendants No.1 and 2 on 20.08.1992. A careful perusal of the Ex.P/1, would indicate that it has been purchased by Ram Kishan plaintiff in the name of Parmanand son of Jug Lal for the purpose of an affidavit. Its details are mentioned as the top of Ex.P1, probably by the stamp vender. Stamp vender was not examined to prove that Parmanand was with Ram Kisahn at the time of purchase of stamp paper. The document Ex.P1 bears signature of Parmanand and thumb impression of Shanti Devi defendants on the right side at two places each. Usually an affidavit is executed in the manner in which the signature/thumb impression appears on Ex.P1. It could not explained in any manner as to why signature and thumb impression of defendants No.1 and 2 were obtained at two places on the right side of the papers whereon Ex.P1 is scribed. The spacing of Ex.P1 also create suspicion and it seems that at the top Regular Second Appeal No.4153 of 2008 6 of Ex.P1 the contents were mentioned very closely whereas after the first para two lines space and then to second para also three lines space given. The witnesses to the document are written with typewriter whereas thumb impression of Harphool Singh son of Shanker is mentioned and his name being written with a pen. The inkpad used for the thumb impression of Harphool Singh is also different to the inkpad used for the thumb impression of defendant No.1 Shanti Devi. Further more the last two lines of first para are with a dark typing impression, vis a vis the remaining contents of Ex.P1. The arguments of learned counsel for the appellant that typing ribbon had been changed or it might had been reversed while typing these two lines could be the reasons that these two lines appear more dark then the remaining contents of the document had been written would be untenable. If the document had been written at one time then after last two lines of the first paragraph the remaining contents of the document Ex.P1, i.e. the second paragraph and the names of the parties should have been type written with similar dark impression of the ribbon. These two lines were adjusted in the spacing between first and second paragraph in very clever Regular Second Appeal No.4153 of 2008 7 manner. These two lines also impart significant right to the plaintiff as it is mentioned that possession has been handed over to the vendee and the excutants shall be bound to get the suit land registered after seeking permission from the court to sell share of minors. Document Ex.P1 does not contain as to who among the defendants No.3 to 7 are minors and except these two lines added with dark impression, there is no reference in the upper portion if any one of the co-sharers of suit land is a minor or not. The document also contains over writing at five places which are also not explained. There is apparent addition of two lines, hence extra polation also makes Ex.P1 suspicious. In view of case law Hakam Singh versus Gurdev Singh (supra) the agreement to sell Ex.P1 is suspicious on several counts and has been rightly rejected by learned trial court. The aforesaid reasons are sufficient to discard agreement Exhibit P1. There is concurrent finding of fact by the Courts below that agreement Exhibit P/1 is suspicious and is not proved. The said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Regular Second Appeal No.4153 of 2008 8 The contentions advanced by learned counsel for the appellant relate to appreciation of evidence and therefore, cannot be accepted because the Courts below have not misread the evidence nor the appreciation of evidence by the Courts below can be said to be perverse or erroneous. For the reasons aforesaid, I find no merit in the instant case, which is accordingly dismissed. (L.N. Mittal) Judge February 22, 2010 vcgarg Regular Second Appeal No.4153 of 2008 9