R. S. A. No. 3360 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3360 of 2009 Date of Decision : March 17, 2011 Jamaluddin .... Appellant Vs. Ram Avtar and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Adarsh Jain, Advocate for the appellant. Mr. Sachin Mittal, Advocate for respondent no. 1. None for respondent no. 2. * * * L. N. MITTAL, J. (Oral) : Jamaluddin – one of the two sons and legal heirs of original defendant Gariba (since deceased) has filed the instant second appeal, after remaining successful in the trial court, but remaining unsuccessful in the lower appellate court. Respondent no.1 – plaintiff Ram Avtar filed suit against Gariba – defendant (since deceased and represented by appellant and proforma R. S. A. No. 3360 of 2009 2 respondent no.2 Jam Mohammad being his sons and legal representatives) for possession of the suit land measuring 08 kanals 13 marlas being one- sixth share of 51 kanals 18 marlas land by way of specific performance of the agreement to sell dated 14.05.1999. The plaintiff alleged that the defendant agreed to sell the said land to the plaintiff for Rs.82,000/- and received Rs.22,000/- as earnest money and executed the impugned agreement. Sale deed was agreed to be executed on or before 25.05.2000. Accordingly, on 25.05.2000, the plaintiff went to the office of Sub Registrar to get the sale deed executed in terms of the agreement, but the defendant did not turn up and committed breach of the agreement. The plaintiff even sent notice dated 03.05.2002 to the defendant requiring him to execute the sale deed up to 20.05.2002, but the defendant did not do the needful, necessitating the filing of the suit. The defendant broadly denied the plaint allegations. The defendant alleged that he being agriculturist, used to purchase articles for agricultural and for other purposes from the plaintiff, who is a shopkeeper. The defendant also took cash amount from the plaintiff as loan. Near about the date of impugned agreement, the defendant had taken loan of Rs.5,000/- from the plaintiff, who asked the defendant to execute pronote for the same. On this pretext, the defendant was taken to a typist, where thumb impressions of the defendant were obtained on some papers telling it to be pronote. The said thumb impressions of the defendant have been used to R. S. A. No. 3360 of 2009 3 prepare the impugned agreement, which is result of fraud and misrepresentation. The defendant never agreed to sell the suit land to the plaintiff nor thumb marked the impugned agreement as an agreement. The defendant repaid the loan amount with interest after six months. It was also alleged that specific performance of the agreement would create great hardship to the defendant. Various other pleas were also raised. Learned Civil Judge (Junior Division), Ferozepur Jhirka, vide judgment and decree dated 30.01.2009, dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Nuh, vide judgment and decree dated 23.05.2009 and thereby, suit filed by the plaintiff stands decreed. Feeling aggrieved, one of the two legal representatives of the defendant has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. In order to prove his case, the plaintiff has examined the deed writer Jagdish Parshad Gupta (PW-1), who scribed the impugned agreement and Nathi (PW-3) – one of the attesting witnesses of the agreement, besides himself stepping into the witness-box as PW-4. All of them have broadly stated according to the plaintiff's version. The plaintiff also examined Mr. Mukesh Kumar Goyal, Advocate (PW-2), who proved notice sent by him on behalf of the plaintiff to the defendant. R. S. A. No. 3360 of 2009 4 On the other hand, the defendant himself appeared as DW-1 and examined his son Jamaluddin (appellant) as DW-2. Both of them broadly stated according to the defendant's version. Plaintiff's evidence is cogent and reliable and is sufficient to prove due execution of the impugned agreement by the defendant. The plaintiff has examined scribe as well as one attesting witness of the agreement, besides himself appearing as witness. Statements of scribe and attesting witness of the agreement coupled with testimony of the plaintiff are sufficient to prove due execution of the impugned agreement. The said evidence is not rebutted by self serving oral statements of defendant and his son. On the contrary, defendant and his son have admitted their thumb impressions on the impugned agreement. The impugned agreement was thumb marked not only by the defendant but also by his son. Their self- serving statements are not sufficient to prove the alleged fraud. In this context, it is significant to notice that the impugned agreement has been thumb marked by the defendant on the first sheet by affixing his photograph and the thumb impression appears partly on the photograph and partly on the stamp paper. Second sheet of the agreement bears two thumb impressions of defendant besides thumb impression of his son and thumb impressions of both the witnesses and signature of the plaintiff. It cannot be said that said thumb impressions were affixed by the defendant and his son on the pretext of pronote. The said thumb impressions are on the stamp R. S. A. No. 3360 of 2009 5 papers. Even an illiterate rustic villager knows about the pronote form and about the consequences of affixing signatures or thumb impressions on stamp papers. In addition to it, there is no reason why the scribe and attesting witness of the agreement Nathi would depose falsely against the defendant. The defendant admitted that he has no enmity with PW Nathi, who belongs to the village of defendant, whereas plaintiff is resident of a different village. Consequently, testimony of Nathi assumes significance. There is no ground to discard the same. There is also no ground to discard the testimony of the deed writer Jagdish Parshad Gupta (PW-1). It would also not be out of place to notice here that the defendant pleaded that he had repaid the loan amount to the plaintiff with interest after six months. However, there is no document regarding the alleged payment nor any independent witness of the alleged payment has been examined. Moreover, if the defendant had affixed thumb impressions allegedly on pronote, while taking the loan, the defendant would not have repaid the loan with interest without taking back the alleged pronote or at least without getting a separate receipt for the alleged repayment. However, there is no document to prove the alleged repayment of loan. Mukbal is another attesting witness of the impugned agreement. He also belongs to the village of the defendant. However, the defendant has not even examined Mukbal as witness in the case in support of his version. Counsel for the appellant contended that the plaintiff stated R. S. A. No. 3360 of 2009 6 that he did not know Mukbal. However, if the said witness had been brought by the defendant and if the plaintiff did not know the said witness, it has no adverse effect on the case of the plaintiff. The plaintiff has examined the other attesting witness of the agreement namely Nathi as his witness. Learned counsel for the appellant contended that there are contradictions in the statements of plaintiff's witnesses inasmuch as plaintiff Ram Avtar stated that he had not seen any record of the suit land, when the agreement was executed, but deed writer (PW-1) stated that there was jamabandi of the land brought by the parties at the time of execution of the agreement. However, this is not a material contradiction so as to discard the entire evidence of the plaintiff, which is otherwise reliable. In this context, it has to be noticed with significance that deed writer Jagdish Parshad Gupta was examined as witness on 17.09.2005 i.e. more than six years after the execution of the agreement and the plaintiff himself appeared as witness on 07.02.2006 i.e. almost seven years after the execution of the agreement. Due to lapse of such long period also, some minor contradictions in the statements of the witnesses would be very natural. They could not be expected to make parrot like identical statements. Learned counsel for the appellant also pointed out that according to the deed writer, the earnest money was not paid in his presence, but according to Nathi (PW-3), the earnest money was paid in the R. S. A. No. 3360 of 2009 7 presence of the deed writer, whereas according to the plaintiff himself, the earnest money was paid at his shop. The contention is untenable. Learned counsel for the appellant could not refer to any part of testimony of the plaintiff to depict that according to the plaintiff, the earnest money was paid at his shop. On the other hand, what the plaintiff has stated is that the bargain had been struck at his shop. Statement of deed writer that earnest money was not paid in his presence would not be of much significance because he, as professional deed writer, has to scribe many documents daily. He could not be expected to remember the details of transactions pertaining to all the documents scribed by him, particularly because he was examined as witness in this case more than six years after the execution of impugned agreement. On the other hand, it is specifically recited in the impugned agreement that earnest money has been paid by the plaintiff to the defendant in the presence of witnesses. The said recital coupled with statements of plaintiff and Nathi is sufficient to prove payment of earnest money. Learned counsel for the appellant next contended that readiness and willingness of the plaintiff to perform his part of the contract is not proved. It was argued that service of notice dated 03.05.2002 (Ex.P-4) is not proved as postal receipt thereof has not been produced. It was also submitted that the suit was filed just before expiry of limitation period of three years. The contention that readiness and willingness of the plaintiff to perform his part of the contract is not proved cannot be accepted. It was R. S. A. No. 3360 of 2009 8 stipulated in the agreement that the sale deed would be executed up to 25.05.2000. Accordingly, the plaintiff went to the office of Sub Registrar on 25.05.2000 to get the sale deed executed in terms of the agreement, but defendant did not turn up. Thereupon, the plaintiff moved application (Ex.P-2) before the Sub Registrar, who returned the same with his endorsement as Ex.P-3. The plaintiff thereafter served notice dated 03.05.2002 on the defendant. In this regard, besides the testimony of plaintiff himself, there is also testimony of Mr. Mukesh Kumar Goyal, Advocate (PW-2), who had issued the said notice. This witness stated that he had himself dispatched the said notice by Regd. A. D. post. Aforesaid evidence of the plaintiff stands unrebutted because the defendant, while appearing in the witness-box, did not state that he had not received any such notice. Moreover, it was not the defendant's case that he was ever ready and willing to perform his part of the contract. On the contrary, the defendant even denied the execution of impugned agreement. The plaintiff has, however, proved his readiness and willingness to perform his part of the contract. Learned counsel for the appellant also contended that specific performance of the agreement would cause undue hardship to the defendant. However, there is not even an iota of material on record to substantiate this contention. Even the defendant or his son did not state anything about it in the witness-box. Even in the written statement, except pleading that R. S. A. No. 3360 of 2009 9 specific performance of the agreement would cause hardship to the defendant, it was not pleaded as to how it would cause hardship to the defendant. For the reasons aforesaid, I have no hesitation in affirming the finding of the lower appellate court in favour of the plaintiff-respondent no.1. The said finding is justified by the evidence on record and is supported by various reasons. The said finding is not depicted to be perverse or illegal in any manner nor is based on misreading or misappreciation of evidence. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is thus found to be bereft of any merit and is accordingly dismissed. March 17, 2011 ( L. N. MITTAL ) monika JUDGE