Regular Second Appeal No. 966 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 966 of 2011 Date of decision : February 24, 2011 Salwant Singh ....Appellant versus Narinderpal Dhillon ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. VK Sandhir, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant Salwant Singh having remained unsuccessful in both the courts below has filed the instant second appeal. Narinderpal Dhillon plaintiff-respondent filed suit against defendant-appellant alleging that the plaintiff is owner in possession of the suit land measuring 14 kanals 6 marlas but the defendant has forged sale deed dated 17.6.1996 in his favour regarding the suit land although the plaintiff never executed the alleged sale deed. Accordingly, the plaintiff sought declaration that the said sale deed is null and void. Relief of permanent injunction was also claimed. Defendant broadly denied the plaint allegations and pleaded Regular Second Appeal No. 966 of 2011 -2- that sale deed is genuine and was executed by the plaintiff herself. The suit was also alleged to be barred by limitation. It was pleaded that defendant is owner in possession of the suit land. Various other pleas were also raised. Learned Civil Judge (Junior Division) Taran Taran vide judgment and decree dated 23.2.2010 decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Tarn Taran vide judgment and decree dated 27.11.2010. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff herself appeared in the witness box and categorically stated that she has not executed the impugned sale deed. The plaintiff has also led other evidence including testimony of handwriting expert to depict that the impugned sale deed does not bear the signatures of the plaintiff. On the other hand, the defendant examined Bhupinder Singh deed writer who scribed the sale deed. The defendant himself appeared as DW2 and stated according to his version. The defendant also examined handwriting and fingerprint expert to depict that the impugned sale deed bears the signatures of the plaintiff. There are so many circumstances depicting that the impugned sale deed has not been executed by the plaintiff. There were two attesting witnesses of the sale deed. They were the best witnesses to depose that the sale deed had been executed by the plaintiff and not by anybody else. Regular Second Appeal No. 966 of 2011 -3- However, none of them has been examined as witness by the defendant to substantiate his version. Learned counsel for the defendant-appellant contended that both the attesting witnesses of the sale deed had died and therefore, they could not be examined by the defendant. In this regard, reference was made to examination-in-chief of the defendant wherein he stated that both the witnesses had died. However, he was cross-examined on this aspect. In cross-examination he admitted that entries regarding death of both the said witnesses had been entered by Chowkidar in the register of Births and Deaths. However, no such entry has been produced in evidence. Consequently, merely on the basis of oral self serving testimony of the defendant, it cannot be said that both the attesting witnesses of the sale deed had already died. There is no other evidence oral or documentary to prove the said fact. It is also worth mentioning that the sale deed purports to bear thumb impressions of the attesting witnesses but the defendant inspite of having examined handwriting and fingerprint expert did not get the alleged thumb impressions of the attesting witnesses on the sale deed compared with their standard thumb impressions although science of comparison of fingerprint is perfect science. In addition to the aforesaid, both the attesting witnesses of the sale deed did not belong to the village of the plaintiff. One of them belongs to village of the defendant whereas other belongs to a third village. This circumstance is also very material when the version of the plaintiff is that the sale deed was obtained by impersonation. There is no explanation why no witness from the village of the plaintiff attested the sale deed. Learned Regular Second Appeal No. 966 of 2011 -4- counsel for the appellant contended that all the three villages i.e. villages of the plaintiff and the defendant and the village of the second witness (one witness being of the village of defendant himself) are situated at the distance of one kilometer from one another. Learned counsel for the appellant is fair enough to concede that there is not even an iota of material on record to substantiate the aforesaid contention raised by him. Payment of sale consideration for the impugned sale deed is also not proved. The defendant stated that the sale consideration was paid to the plaintiff before the deed writer who scribed the sale deed. However, the deed writer stated that no consideration was paid in his presence. Admittedly, no consideration was either paid in the presence of Sub Registrar at the time of registration of the sale deed. There is also no other evidence regarding payment of sale consideration. Thus, the payment of sale consideration is also not proved. There was also no agreement to sell entered into between the parties prior to execution of the sale deed. Sale consideration of ` 8000/- only for sale of more than 1¾ acres of land even in the year 1996 was highly inadequate. Another significant circumstance against the defendant- appellant is that the defendant did not even get entered mutation on the basis of sale deed for over three years. It is, thus, apparent that the defendant did not get the mutation entered because on entry of mutation, the impugned sale deed was likely to come to the notice of the plaintiff. There is no explanation why the mutation was not got entered for over three Regular Second Appeal No. 966 of 2011 -5- years. There being contradictory statements of handwriting experts examined by both the parties, the same have been rightly ignored particularly because science of handwriting comparison is not perfect science and it is not uncommon for handwriting expert examined by a party to give opinion in favour of that party which engaged him. In view of the reasons recorded hereinbefore, concurrent finding recorded by the courts below in favour of the plaintiff cannot be said to be unjustified or illegal or perverse in any manner. All the circumstances noticed hereinbefore collectively are sufficient to return the finding in favour of the plaintiff. Individually the said circumstances may or may not be sufficient to give such a finding. Moreover the finding recorded by the courts below is not based on misreading or misappreciation of evidence. Learned counsel for the appellant referred to observation of lower appellate court in paragraph 11 of the judgment that both the attesting witnesses of the sale deed could not be examined as they have died. However, the said observation is not substantiated by any material on record and is not supported by any reason. On the other hand, the said observation is apparently erroneous because the lower appellate court prefixed the said observation with the expression 'as already stated above', but learned counsel for the appellant after going through the judgment of the lower appellate court is unable to refer to any observation in earlier part of judgment of the lower appellate court regarding death of both attesting Regular Second Appeal No. 966 of 2011 -6- witnesses of the sale deed. As a necessary upshot of the discussion aforesaid, I find no merit in the instant second appeal which is dismissed in limine. ( L.N. Mittal ) February 24, 2011 Judge 'dalbir'