Regular Second Appeal No. 2521 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2521 of 2011 Date of decision : June 02, 2011 Bishambar Lal Kher and others ....Appellants versus Narinder Dang ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. N.C.Kinra, Advocate, for the appellants L.N. Mittal, J. (Oral) Defendants Bishamber Lal Khera and his two sons Tilak Raj Khera and Vipan Khera who were successful in the trial court but have been unsuccessful in the lower appellate court have filed the instant second appeal. Respondent-plaintiff Narinder Dang filed suit against defendants/appellants for specific performance of agreement dated 14.3.1999 supplemented by agreement dated 13.11.1999 along with relief of permanent injunction. Plaintiff's case is that defendants agreed to sell suit property to the plaintiff for Rs 4,60,000/- and received Rs 2,20,000/- as earnest money Regular Second Appeal No. 2521 of 2011 -2- and executed agreement dated 14.3.1999. Sale deed was to be executed upto 30.9.1999. However, defendant no. 1 approached the plaintiff for extension of time for execution of sale deed and demanded further amount of Rs 50,000/-. Accordingly, the plaintiff paid Rs 50,000/- to defendant no. 1 on behalf of all the defendants and supplementary agreement dated 13.11.1999 was executed. Sale deed was agreed to be executed on or before 21.5.2001. Accordingly, on 25.1.2001, the plaintiff went to the office of Sub Registrar with requisite money to get the sale deed executed in terms of the agreement but the defendants did not turn up. The plaintiff also sent notice dated 28.5.2001 to the defendants for performing the agreement but they did not do so, necessitating filing of the suit. Defendants broadly denied plaint averments. They denied having agreed to sell the suit property to the plaintiff or having received earnest money or having executed impugned agreements. It was alleged that only defendants no. 1 and 2 were owners of suit property and defendant no. 3 had no right, title or interest thereon. Defendants no. 1 and 2 sold portions of the suit property to Parveen Chadha and Manju Chadha vide two sale deeds and gifted one portion of the suit property to Chanan Devi by way of gift deed and another portion was sold to Naveen Jindal. Defendants no. 1 and 2 had suffered heavy losses in their business. They borrowed Rs 16,000/- from the plaintiff, Rs 25,000/- from Rajinder Kaur and Rs 20,000/- from Ashok Kumar and all of them obtained signatures of defendants no. 1 and 2 on blank stamp papers and the impugned agreements have been fabricated later on. Defendants no. 1 and 2 repaid principal loan Regular Second Appeal No. 2521 of 2011 -3- amount to the plaintiff and other two creditors after selling two portions of the suit property and expressed inability to pay interest. However, the aforesaid creditors including the plaintiff did not return the blank signed stamp papers and misused the same for fabricating the agreements. Learned Additional Civil Judge (Senior Division) Ambala Cantt. vide judgment and decree dated 4.3.2009 dismissed the plaintiff's suit. However, first appeal preferred by plaintiff has been allowed by learned Additional District Judge, Ambala vide judgment and decree dated 28.3.2011 and thereby plaintiff's suit stands decreed. Feeling aggrieved, the defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. The plaintiff himself stepped into witness box as PW4 and examined Ravi Kumar Kalra PW1 and Ravinder Kumar PW3 both attesting witnesses of both the impugned agreements. All of them have broadly stated according to plaintiff's version. On the other hand, there is sole testimony of defendant no. 3 Vipin Khera as DW1 who broadly stated according to the defendants' version. Plaintiff has led cogent evidence to prove execution of both the agreements. Besides his own testimony, the plaintiff has examined both attesting witnesses of the agreements. Consequently, the lower appellate court rightly held the agreements to be proved. In addition to it, defendants have admitted their signatures on agreement dated 14.3.1999 and also signatures of defendant no. 1 on agreement dated 13.11.1999. This Regular Second Appeal No. 2521 of 2011 -4- admission further strengthens the plaintiff's case. It is also significant to notice that in the written statement it was pleaded that defendants no. 1 and 2 had taken loan from plaintiff and two other persons and the said creditors obtained signatures of defendant nos. 1 and 2 on blank stamp papers at that time. It was also pleaded that defendants no. 1 and 2 repaid principal loan amount to the plaintiff and other two creditors. However, if defendants no. 1 and 2 had repaid the loan amount, they would have taken back blank stamp papers bearing their signatures. They would not have repaid the loan amount without taking back the blank signed stamp papers. In addition to it, in the witness box defendant no. 3 the sole witness of the defendants stated that signatures of defendants had been obtained forcibly. This is contradictory to the pleading of the defendants in the written statement wherein they admitted to have signed the stamp papers voluntarily as they raised loan from plaintiff and other creditors. Thus, the testimony of the sole witness of the defendant is also not reliable. It may be added that according to the written statement only defendants no. 1 and 2 were owners of the suit property and defendant no. 3 had no right, title or interest therein but in spite of that only defendant no. 3 has stepped into witness box and defendants no. 1 and 2 did not dare to enter the witness box. It is significant to notice that according to written statement alleged transaction of loan with the plaintiff had been done by defendants no. 1 and 2 and not by defendant no. 3. In these circumstances testimony of defendant no. 3 would carry no probative value and it was essential for defendants no. 1 and 2 or at least either of them to have stepped Regular Second Appeal No. 2521 of 2011 -5- into witness box. However, none of them has appeared into witness box and therefore, adverse presumption arises against the defendants. Learned counsel for the appellants vehemently contended that agreement dated 13.11.1999 bears signature of defendant no. 1 only and does not bear signatures of defendants no. 2 and 3 and therefore, they are not bound by this agreement. The contention does not help the appellants in any manner. Basic right of the plaintiff depends on first agreement dated 14.3.1999 which was executed by all the three defendants. Supplementary agreement was executed by defendant no. 1 only who is none else but father of defendants no. 2 and 3. Moreover, even if the said supplementary agreement is ignored even then plaintiff has right to succeed on the basis of original agreement dated 14.3.1999. It may also be added that signatures of defendant no. 1 alone on supplementary agreement dated 13.11.1999 also stand admitted in the written statement as well as in evidence of the defendants and it is not explained as to how signature of defendant no. 1 alone appear on that agreement. Similarly on agreement dated 14.3.1999 signatures of all the three defendants have been admitted by defendant no. 3 but according to written statement only defendants no. 1 and 2` had allegedly signed the blank stamp papers. Thus, the entire version of the defendants is completely untenable. Counsel for the appellants also contended that Ravi Kumar Kalra PW1 stated that earnest money was not paid in his presence. However, Ravinder Kumar PW3 and plaintiff as PW4 have specifically stated about payment of earnest money. Possibily Ravi Kumar Kalra might Regular Second Appeal No. 2521 of 2011 -6- not have noticed when the money exchanged hands. However, there is also recital of the payment of the earnest money in the agreements. The said recital is corroborated by the statements of plaintiff and Ravinder Kumar. Consequently, it cannot be said that earnest money was not paid. Counsel for the appellants also contended that some alteration has been made in agreement dated 14.3.1999 by applying fluid and by typing on the fluid. However, counsel for the appellant is not able to tell as to in which part of the said agreement the alleged alteration was made and consequently, it cannot be said that there has been any material alteration in the said agreement. On the contrary, the said agreement was reaffirmed by the supplementary agreement dated 13.11.1999. For the reasons aforesaid, I find no merit in the instant second appeal. Lower appellate court has rightly decreed the suit of the plaintiff after proper appreciation of evidence. Finding of the lower appellate court in favour of the plaintiff 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 is accordingly dismissed in limine. ( L.N. Mittal ) June 02, 2011 Judge 'dalbir'