R.S.A.No.11 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.11 of 2002 Date of Decision : 29.7.2009 Harbhajan Singh and another ...Appellants Versus Anokh Singh and another ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. M.S.Bedi, Sr. Advocate, with Ms. Gauri Bedi, Advocate, for the appellants. Mr. B.S.Bains, Advocate, for respondent No.1. HEMANT GUPTA, J. (ORAL) Defendant Nos.2 and 3 are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for specific performance of an agreement of sale dated 14.12.1993, was decreed. One Baldev Raj-defendant No.1 was the owner of land measuring 8 kanals i.e. half share of the land measuring 16 kanals situated in village Nangal, Tehsil Pathankot, District Gurdaspur. The plaintiff filed the suit for specific performance on 2.3.1994 alleging therein that Baldev Raj entered into the aforesaid agreement after receiving Rs.10,000/- as earnest money out of the agreed total sale consideration of Rs.85,000/-. Remaining amount of Rs.75,000/- was to be paid at the time of registration of the sale deed, for which 15.12.1994 R.S.A.No.11 of 2002 2 was the date fixed. But in the meantime, defendant No.1 executed a sale deed in favour of defendant Nos.2 and 3 on 21.2.1994. Therefore, the present suit for specific performance was filed on 2.3.1994. By way of the present suit, the plaintiff claim decree for specific performance against the defendants, as it was the stand of the plaintiff that he was always ready and willing to perform his part of the contract, but defendant No.1 executed a sale deed in favour of defendant Nos.2 and 3, though the plaintiff on 13.2.1994, in the presence of Sarwan Singh asked defendant Nos.2 and 3 not to purchase the suit land from defendant No.1. Defendant No.1 in its written statement denied any agreement to sell in favour of the plaintiff and receipt of Rs.10,000/- as earnest money. It was asserted that the plaintiff has managed to obtain his thumb impressions by playing some fraud and that he never entered into an agreement to sell. It was alleged that the agreement was forged one having been procured by the plaintiff in connivance with the marginal witnesses. Defendant Nos.2 and 3 in their joint written statement denied execution of any agreement to sell dated 14.12.1993 executed by defendant No.1 in favour of the plaintiff on receipt of Rs.10,000/- as advance out of the total sale consideration. In fact, it was asserted that defendant No.1 entered into an agreement dated 15.10.1993 with defendant No.2 to sell the land in presence of Kartar Singh, Sarpanch of Village Nangal and Gurnam Singh, Member Panchayat. Defendant No.1 never entered into an agreement to sell in favour of the plaintiff. The suit R.S.A.No.11 of 2002 3 was said to be collusive between the plaintiff and defendant No.1 and it was asserted that the plaintiff is not entitled to specific performance of the agreement to sell. In order to prove his case, the plaintiff examined Sarwan Kumar (PW-1) and Karnail Singh (PW-2), attesting witnesses of agreement to sell dated 14.12.1993. On the basis of the statements of the aforesaid witnesses and that of plaintiff (PW-3), a finding has been returned that the aforesaid agreement was executed by defendant No.1 in favour of the plaintiff. On the other hand, to prove the agreement to sell allegedly executed by defendant No.1 in favour of defendant Nos.2 and 3 on 15.10.1993, the defendants examined Surjit Singh (DW-2) and Gurnam Singh (DW-3), attesting witnesses of the agreement. Defendant No.1 appeared as his own witness as DW-5. Defendant No.2 has also appeared as his own witness as DW-4. Learned trial Court found that agreement dated 15.10.1993 (Ex. D-1) is on a non-judicial paper with a revenue stamp of 20 paise, which has been scribed by a person, who is not regular deed writer; no explanation has been given as to why the said agreement was not got executed on a stamp paper though Anand Pal (DW-1) deposed that Baldev Raj has purchased stamp of Rs.5/- on 28.6.1993 for execution of an agreement; Defendant Nos.2 and 3 have not disclosed any reason as to why the said agreement was not produced before the Deed Writer, who scribed the sale deed Ex.P-3; and agreement Ex.D-1 saw the light of the day for the first time when the statement of Surjit Singh (DW-2) was R.S.A.No.11 of 2002 4 recorded on 18.3.2000. On the basis of such circumstances, it was held that Ex.D-1 is nothing but a fabricated document. In appeal filed on behalf of defendant Nos.2 and 3, the said findings were affirmed. However, it was recorded in para 16 of the judgment that finding on other issues was not challenged at the time of arguments in appeal. Initially, the appeal came up for hearing before this Court on 20.7.2006, when the same was allowed without framing any substantial question of law. The said order has been set aside by the Hon'ble Supreme Court and the matter has been remitted back to this Court. This is how, the matter has been placed before me for final disposal. Learned counsel for the appellants has vehemently argued that the primary reason, which weighed with the Courts to hold that the agreement Ex.D-1 is a fabricated document is that it is not on a stamp paper, though the stamp paper was purchased by Baldev Raj in the month of June 1993. It is contended that the said reason is not sustainable for the reason that during the course of evidence, the appellants have paid the penalty on the document for the deficient stamp duty on the said agreement, therefore, the said reason cannot be made basis for returning a finding against the appellants. It is also pointed out that in the written statement filed on 24.5.1994, the defendant has made reference to the aforesaid agreement, therefore, the Courts below could not return a finding that reference to the said agreement came up for the first time in the year 2002 in the course of evidence of the attesting witnesses. R.S.A.No.11 of 2002 5 On the other hand, learned counsel for the respondents has supported the reasoning given by the Courts below and also pointed out that in fact the entire sale consideration is purportedly paid to defendant No.1 on 15.10.1993 i.e. at the time of execution of alleged agreement to sell. In the sale deed executed on 21.2.1994, there is no reference to the said agreement to sell nor any sale consideration has passed before the Sub Registrar. Such a glaring circumstance shows that the document is a fraud and fabricated. It is also pointed out that Baldev Raj (DW-5) while appearing as a witness has stated that he has not executed any document in favour of Harbhajan Singh prior to execution of sale deed Ex.P-3 on 21.2.1994. It is also pointed out that the payment of deficient stamp duty will make the agreement admissible in evidence, but the suspicious circumstance in respect of execution of the agreement does not stand closed with the making of the deficiency in payment of the stamp duty. After hearing learned counsel for the parties at some length, I do not find any merit in the present appeal. Even if, the deficient amount of stamp duty has been paid during the course of evidence, it will only render the document as admissible in evidence. However, the question whether such document was duly and legally executed is a question, which is distinct from the document being on a proper stamp paper. It has been found that Baldev Raj has purchased the stamp paper of Rs.5/- on 28.6.1993 for the purpose of agreement to sell. If defendant No.1 has purchased the stamp paper for the purpose of agreement to sell in June, 1993 then there was no reason as to why the agreement to sell was not executed on the said stamp paper. R.S.A.No.11 of 2002 6 Still further, in the sale deed dated 21.2.1994, there is no reference to the agreement to sell dated 15.10.1993. The entire sale consideration has purported to be paid at the time of agreement to sell, which shows that the transaction of sale before the Sub Registrar was only a paper and sham transaction. Though there is a reference to agreement to sell in the written statement filed on 24.5.1994, but a copy of the aforesaid agreement was not attached with the written statement filed by defendant Nos.2 and 3. The attesting witness DW-2 has clearly deposed that the said agreement is being produced in the Court for the first time on 18.3.2000. Above all, Baldev Raj (DW-5) has clearly stated that he has not executed any document prior to the sale deed Ex.P-3 dated 21.2.1994 in favour of defendant Nos.2 and 3. The said statement goes a long way to prove that the agreement to sell relied upon by the appellant is a fabricated document. In view of the said fact, a finding has been recorded by the Courts below that the agreement is fabricated document. The other argument raised by the learned counsel for the appellants is that the appellants are the bona fide purchasers of value and consideration. The said argument is wholly untenable for more than one reason. Firstly, the entire case of the defendants is based upon a fabricated document. Since the claim is upon a fabricated document, the plea of bona fide purchaser is wholly unsustainable and does not merit any consideration. Still further, DW-3, the attesting witness has produced the agreement to sell for the first time in the Court in the year 2000, meaning R.S.A.No.11 of 2002 7 thereby that in the year 1993 the same was not in existence. The fact that the defendants have relied upon a sale deed executed without payment of sale consideration before the Sub Registrar also shows connivance and collusiveness of defendant No.1 with the defendant Nos.2 and 3. Apart from all these factors, the learned first Appellate Court has recorded categorically in para 16 that no argument was raised in appeal on other issues except on issue No.5, which has been dealt in para 15 of the judgment. Issue No.5 is regarding due execution of the agreement to sell dated 15.10.1993. Having failed to dispute the concession recorded in the judgment of the learned District Judge, the appellants cannot be permitted to raise the argument that the appellants are the bona fide purchasers for value and consideration. In view of the above, I do not find any patent illegality or irregularity in the judgment and decree passed by the Courts below, which may give rise to any substantial question of law for consideration of this Court in second appeal. Dismissed. 28.7.2009 (HEMANT GUPTA) Vimal JUDGE