R.S.A. No. 1574 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 1574 of 2009 Date of decision: 7-5-2009 Harbhajan Singh … Appellant versus Prabhjot Singh & others … Respondents CORAM: THE HON’BLE MR. JUSTICE ARVIND KUMAR Present: Mr. Vibhor Taneja, Advocate, for the appellant. … ARVIND KUMAR, J: This second appeal is by defendant No.1, Harbhajan Singh, directed against the judgment and decree of the Courts below whereby the suit of the plaintiffs has been decreed and a decree for recovery of Rs.2,00,000/- against defendant No.1 Harbhajan Singh, has been passed. As regards defendant No.2, the trial Court dismissed the suit qua him. The present suit was originally filed by Manmohan Singh Sodhi who however died during the pendency of the suit and in his place, Prabhjot Singh, Navjot Singh, Harjot Kaur and Gulshan Sodhi were substituted as plaintiffs vide order dated 26.9.2005. As per the case of the plaintiffs, defendant No.1 was owner of the house consisting of two rooms, one kitchen, bath-room constructed on 8 marlas of land bearing Khasra No. 195/1, /3 and 194/2 situated in the area of Fateh Chak, Tarn Taran. Vide agreement to sell dated 30.11.1997, he agreed to sell the said house for a consideration of Rs.3,00,000/- and received Rs.2,00,000/- as earnest money from the plaintiff and agreed to sell the house on receipt of balance consideration on or before 31.3.2000. Defendant No.1 further agreed to clear the loan taken from Housefed, well before the execution of the sale- deed in favour of the plaintiff. He also agreed that he would be liable to pay Rs.2,00,000/- as damages in addition to refund of earnest/advance money of Rs.2,00,000/-. However, in violation of terms of agreement to sell, R.S.A. No. 1574 of 2009 2 defendant No.1 sold the said house to defendant No.2 vide registered sale- deed dated 24.3.1999 in spite of the fact that defendant No.2 had the knowledge of the said agreement. According to the plaintiff, the defendants in collusion with each other got prepared the sale-deed in favour of defendant No.2 in order to deprive the plaintiff of his rights under the agreement to sell and further to grab the amount of Rs.2,00,000/-. The plaintiff repeatedly requested defendant No.1 to execute the sale-deed but to no avail. Hence, the suit. Upon notice of the suit, defendants put in appearance and filed separate written statements. Defendant No.1 in his written statement denied the execution of agreement to sell. He admitted that he sold the suit property to defendant No.2 vide registered sale-deed dated 24.3.1999 for a valid consideration. Written statement on behalf of defendant No.2 was on similar lines as that of defendant No.1. Defendant No.2 admitted that the house in dispute had been sold to him by defendant No.1 vide registered sale-deed dated 24.3.1999 for consideration of Rs.1,50,000/- and possession of the house was delivered to him. He alleged that he is a bona-fide purchaser without notice of the agreement dated 30.11.1997. During the course of evidence, defendant No.1 filed an application under Order 18 rule 17, Code of Civil Procedure, for recalling DW-3 Sukhpreet Kaur, Handwriting and Finger Prints Expert, whose cross- examination was deferred and thereafter,could not be conducted as evidence of defendant No.1 was closed by order on 19.1.2004. The said application was dismissed by the trial Court vide order dated 17.11.2004. Trial Court on appreciation of evidence adduced on record, vide its judgment and decree dated 4.12.2006, observed that defendant No.1 has not been able to prove that the agreement in question is a forged and fabricated document. It however, observed that the plaintiffs have not been able to prove that defendant No.2 had the knowledge of the agreement to sell in question and thus, held that since admittedly the defendant No.2 had purchased the house for a valuable consideration, the possession of the said house is also with him and thus, plaintiffs are not entitled to relief for specific performance and are thus, entitled only for refund of earnest money with interest as an alternative relief. Trial Court accordingly decreed the suit for recovery of Rs.2,00,000/- in favour of the plaintiffs and against defendant No.1 along R.S.A. No. 1574 of 2009 3 with interest at the rate of 12 per cent per annum from 30.11.1997 till the date of decree and future interest at the rate of 6 per cent per annum from the date of decree till actual realization. The suit qua defendant No.2 was dismissed. Feeling aggrieved, defendant Harbhajan Singh preferred an appeal which was dismissed by the first appellate Court vide its judgment and decree dated 16.12.2008. Hence, the second appeal by him. Both the Courts below on appreciation of evidence adduced on record, have concurrently observed that DW-3 Ms. Sukhpreet Kaur, Handwriting and Finger Prints Expert, who tendered into evidence her affidavit Exhibit DW-3/A besides giving her report Exhibit D-1/1 wherein after comparing standard signatures of Harbhajan Singh and his signatures on the agreement, she had opined that the same have been written by different persons, did not turn up for her cross-examination and therefore, her statement could not be read/looked into. It has been further observed that PW-2, Darshan Singh, i.e. attesting witness of the agreement, Exhibit P-1, has proved that out of sale consideration of Rs.3,00,000/-, defendant Harbhajan Singh received an amount of Rs.2,00,000/- from plaintiff Manmohan Singh as earnest money in the presence of DW-1 Mehal Singh. It has been observed that even if DW-1 Mehal Singh did not support the case of the plaintiff, the testimony of PW-2 Darshan Singh and plaintiff himself is sufficient to prove due execution of agreement Exhibit P-1. Nothing has been shown that the findings of fact so recorded by the Courts below suffer from any infirmity or are contrary to the record. No question of law, much less substantial, arises in the present appeal. The appeal is dismissed in limine. ( ARVIND KUMAR ) May 7, 2009 JUDGE JS