RSA No.1788 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1788 of 2009 Date of Decision: 1.05.2009 Bansi Lal ..Appellant Vs. Pat Ram ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.L.N.Verma, Advocate, for the appellant. --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 28.1.2009 passed by learned lower appellate court vide which suit filed by the plaintiff-respondent for specific performance of agreement to sell stands decreed. The defendant/appellant entered into an agreement of sale dated 5.3.1997 with respect to land measuring 8 kanals being 1/4th share of total land measuring 32 kanals situated at village Kusumbi Tehsil and District Sirsa. The land prior to the agreement of sale was mortgaged without possession with plaintiff/respondent for a sum of Rs.23,000/-. The sale RSA No.1788 of 2009 2 consideration was fixed at Rs.1,10,000/-. The factum of mortgage without possession was also incorporated in the agreement of sale. At the time of execution of agreement to sell earnest money of Rs.27,500/- was paid and the sale deed was agreed to be executed on 5.12.1997. Before the date fixed for execution of sale the defendant-appellant executed a second mortgage deed with possession in favour of the plaintiff/respondent for consideration of Rs.37,000/-. It was also the case of the plaintiff that on the date fixed he appeared before the Sub-Registrar but the defendant/appellant did not appear and therefore, the case set up was that the plaintiff has been always and still ready and willing to perform his part of the contract. The suit was contested by the defendant by raising objections regarding the maintainability, cause of action estoppel, concealment of true and material facts. On merit, it was pleaded that the defendant/appellant had mortgaged the land with the plaintiff/respondent for a sum of Rs.23000/-. However, it was denied that there was any agreement of sale. He denied having received earnest money and that the sale deed was to be executed on 5.12.1997. He even denied the execution of mortgage deed with possession on payment of Rs.37,000/-. The learned trial court was pleased to dismiss the suit by recording a finding that the execution of agreement was not proved as neither the plaintiff/respondent or the attesting witnesses stated that the document in question was read over and explained to the defendant. The learned court, thus, held that merely on the statement of scribe it could not RSA No.1788 of 2009 3 be said that the document in question stood proved as the possibility of compelling a person to sign could not be ruled out. The learned court also held that mere admission of signatures on the document did not prove the due execution thereof. The learned trial court further held that there was no mention of the first mortgage deed in the second mortgage deed, thus the learned court held that the document was surrounded by mystery. The finding recorded by the learned trial court has been reversed by the learned lower appellate court by holding that the defendant- appellant had transferred the land in favour of his wife and son who was one of the attesting witnesses to the mortgage deed. The learned lower appellate court also noticed that the execution of the second mortgage deed also stood fully proved. The learned court also observed that PW 4 Joginder Singh had categorically stated that the original mortgage deed without possession was got scribed by respondent himself after admitting the contents thereof. The main reason for up setting the findings of the learned trial court was that in cross examination DW 1 clearly admitted that the stamp paper of execution of agreement to sell Ex.P.1 was purchased by him and also bear his signatures. He admitted his signatures on mortgage deed as well as the photographs. He even admitted that the contents of Ex.P.2 i.e. second mortgage deed were also read over to him. Thus, the plea of the plaintiff/appellant that the signatures were taken on blank papers stood belied. Learned lower appellate court, thus, held that once due execution and willingness of plaintiff/respondent was proved the suit deserved to be decreed. RSA No.1788 of 2009 4 Learned counsel appearing on behalf of the appellant submits that this appeal raises the following substantial questions of law for consideration by this court:- 1. Whether mere proof of signatures/thumb impressions of an illiterate person on a document would be sufficient to conclude that he agreed to the recitals made therein unless it is established that the document was read over and explained to him? 2. Whether the filing of suit for possession by way of specific performance falsify the stand of the plaintiff that he was in possession under the deed of mortgage? In support of substantial question of law raised learned counsel for the appellant contends that the evidence led by the parties does not show that the agreement to sell Ex.P.1 was read over and explained to the plaintiff. It was also the contention of the learned counsel for the appellant that it is difficult to believe the execution of agreement as in case the sale deed was to be executed on 5.12.1997 there was no occasion to execute the second mortgage deed. It is also the contention of the learned counsel for the appellant that the witness stated that Rs.60,000/- were paid at the time of execution of mortgage deed which stood falsified from the document on record. However, there is no force in the contentions raised by the learned counsel for the appellant. The learned lower appellate court rightly held that the RSA No.1788 of 2009 5 agreement was duly proved as it was admitted by DW 5 that the stamp paper of agreement to sell was purchased by him. Once the document was duly proved on record and the plea of the defendant-appellant was not that the contents were not explained to him no adverse inference could be drawn after the agreement was duly proved by examining the witnesses. The facts and circumstances of the case were required to be seen in the back-ground of stand taken by the defendant-appellant which was that he was made to sign certain blank papers and the said stand stood falsified by the positive evidence brought on recordi. The finding of fact recorded by the learned lower appellate court which is final court of fact finding cannot be interfered with by the High Court merely because some other view could also be formed on minute analysis of the evidence on record. The substantial question of law raised, thus, are answered against the appellant and finding no merit the present appeal is ordered to be dismissed in limine. 1.05.2009 (Vinod K.Sharma) rp Judge