R.S.A.No.3439 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3439 of 2009 Date of Decision : 25.09.2009 Karamjit Kaur ...Appellant Versus Jaspal Singh ...Respondent CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. M.P.Goswami, Advocate, for the appellant. Mr. P.K.S.Phoolka, Advocate, for the caveator-respondent. HEMANT GUPTA, J. (ORAL) The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for specific performance of agreement to sell dated 18.8.2004, was decreed. The plaintiff sought specific performance of the aforesaid agreement for purchase of land measuring 76 Kanals 11 Marlas @ Rs.1,44,000/- per killa. Rs.2,00,000/- were allegedly paid in cash as earnest money. The sale deed was to be executed on or before 20.4.2005. As per the plaintiff, he was ready and willing to perform his part of the contract and remained present in the office of the Sub Registrar on 20.4.2005 and approached the defendant on 22.4.2005 to execute the sale deed, but since the sale deed was not executed, the present suit for specific performance was filed on 27.4.2005. The defendant/appellant took up a plea in the written statement that the alleged agreement is forged, fabricated document and result of impersonation. The market value of the property was alleged to be Rs.2,50,000/-. The agreement was said to be without consideration. The appellant denied the receipt of earnest money as well. R.S.A.No.3439 of 2009 2 In order to prove the execution of the agreement, the plaintiff himself appeared as PW-3 and examined PW-6 Bhura Singh, Scribe, PW-4 Jugraj Singh and PW-5 Alvail Singh, the attesting witnesses. It was on the basis of the statements of the aforesaid witnesses, both the Courts have recorded a concurrent finding of fact that the defendant executed the agreement to sell dated 18.8.2004 and received Rs.2,00,000/- as earnest money as well. It was also found that the plaintiff was ready and willing to perform his part of the contract and consequently, granted decree for specific performance of the agreement to sell. Learned counsel for the appellant has vehemently argued that the agreement is forged and fabricated document inasmuch as one Hakam Singh is the 3rd attesting witness on the agreement to sell dated 18.8.2004. Thumb impressions of the said witness and the name of the said witness appear to have been interpolated subsequently, which is evident from the colour of the ink. It is also contended that signatures of the defendant appear on the foot of the page and the attesting witnesses have signed after leaving sufficient space. It is also contended that there was sufficient space available in the previous page, whereas the witnesses could sign, but the signatures of the witnesses are on a separate page. Thus, the document dated 18.8.2004 is nothing but the result of forgery and misrepresentation. Such document is interpolated document as well. The agreement to sell Ex.P-1 is written on 15 pages on stamp papers of Rs.20 each. The first 07 pages bear the signatures of the defendant on the margin of the stamp papers, whereas two pages bear signatures of the defendant at the bottom of the page. The remaining R.S.A.No.3439 of 2009 3 pages bear signatures of the defendant in the middle of the each stamp paper. The writing material is on 07 pages of the agreement, whereas 8th page bears the signatures of the attesting witnesses. Remaining pages are blank, but signed by the defendant. Since, there were number of pages of stamp papers, the endorsement of attestation by the attesting witnesses could very well be written on page 8. It was not necessary to conclude the writing of the agreement of page 7 as even after endorsement on page 8, still 7 pages were left blank. The agreement to sell is attested. Two of the attesting witnesses have been examined as a witness by the plaintiff. Hakam Singh, 3rd attesting witness has not been examined. The execution of the agreement to sell is proved from the statements of the attesting witnesses. It was open to the defendant to examine Hakam Singh in support of his plea that such agreement is forged, fabricated and result of impersonation. However, the defendant has not examined such witness. Both the Courts have examined the entire evidence to return a concurrent finding of fact that the agreement to sell dated 18.8.2004 is proved to be executed by the defendant on receipt of earnest money of Rs.2,00,000/-. It could not be pointed that any evidence has been misread or not taken into consideration. Findings of fact recorded by the Courts below cannot be permitted to be disputed by reappreciation of evidence in second appeal. Consequently, I do not find that any substantial question of law arises for consideration by this Court. Dismissed. 25.09.2009 (HEMANT GUPTA) Vimal JUDGE