R.S.A. No. 3854 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3854 of 2006 (O&M) Date of decision: 17.03.2010 Bhushan Kumar ....Appellant versus Tarun Handa ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Harsh Aggarwal, Advocate, for the appellant. None for the respondent. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 12.8.2006, passed by the learned Courts below, vide which the suit filed by the plaintiff/appellant, for possession by way of specific performance of agreement to sell dated 13.12.1994, stands dismissed. The plaintiff/appellant filed a suit for possession by way of specific performance of agreement to sell dated 13.12.1994, alleging therein, that earnest money of Rs.37,000/- (Rupees thirty seven thousand only) was paid at the time of execution of the agreement, and the date fixed for execution of the sale deed was 12.5.1995. Keeping in view that 12.2.1995 was a holiday, a notice was sent to the defendant/respondent by the plaintiff/appellant for executing the sale deed on 10.2.1995. However, the defendant/respondent did not accept the request. The R.S.A. No. 3854 of 2006 (O&M) -2- plaintiff/appellant appeared before the Sub Registrar and got himself marked present. On the pleadings referred to above, the case set up by the plaintiff/appellant was, that the agreement to sell was executed on 13.12.1994, and that the plaintiff/appellant was always and still ready and willing to perform his part of the contract. The suit was contested, wherein execution of the agreement was denied. The learned Courts below, on appreciation of evidence, recorded a concurrent finding of fact, that the plaintiff/appellant failed to prove the due execution of the agreement dated 13.12.1994. The agreement was held to be forged and fabricated document, and consequently, the suit filed by the plaintiff/appellant was ordered to be dismissed. Learned counsel for the appellant contends, that this appeal raises the following substantial questions of law: - “1. Whether a written statement filed not by the party but by a person purporting to be the attorney of the party, can be taken into consideration when no power of attorney is produced on the record? 2. Whether an agreement of sale is necessarily to be signed by the proposed vendor and the proposed vendee? In support of the first substantial question of law, the learned counsel for the appellant contends, that the written statement by the defendant was filed through power of attorney without placing the said power of attorney on record. In absence of power of attorney having R.S.A. No. 3854 of 2006 (O&M) -3- been placed on record, the written statement filed by the defendant could not be read in evidence. The learned Courts below, therefore, committed an error in taking into consideration the written statement and thereafter by permitting the defendant/respondent to place the power of attorney on record, that too in appeal, which was an act by the defendant/respondent to fill in lacuna in the case. The substantial question of law raised does not arise for consideration in this appeal, for the reason, that the defendant/respondent was allowed to place on record the power of attorney to overcome the technical objection raised by the plaintiff/appellant, to challenge the decree. It cannot be said, to be filling up any lacuna because the suit was dismissed and not decreed. The substantial question of law raised firstly does not arise in this appeal and, in any case, it deserves to be answered against the appellant, for the reason, that it was for the plaintiff/appellant to have proved the due execution of the agreement. The agreement was found to be forged and fabricated document on the appreciation of evidence by the learned Courts below. The learned counsel for the appellant, on the second substantial question of law, argued that the learned Courts below wrongly non-suited the appellant on the ground, that as the agreement to sell was not signed by the appellant, the same could not be read into evidence. The contention of the learned counsel for the appellant is, that the finding of the learned Courts below is perverse on the face of it, as it is against well settled law, that though the signatures of the vendor are R.S.A. No. 3854 of 2006 (O&M) -4- required on the sale deed, those of the vendee are not compulsory. This plea of the learned counsel for the appellant is correct, that it is not necessary for the vendee to sign the agreement to sell. This substantial question of law, however, does not arise in the present case, for the reason, that the learned Courts below, on appreciation of evidence, disbelieved the stand of the plaintiff/appellant, that the agreement to sell was signed by the defendant/respondent i.e. the vendee. The judgment and decree cannot be set aside merely because learned Courts below made an observation that the plaintiff/appellant had not signed the agreement, and that the agreement could not be looked into evidence. The reason for dismissal of the suit was that the plaintiff/appellant had failed to prove the agreement to sell, which was sought to be enforced, specifically. The agreement was found to be forged and fabricated. No other point is pressed or argued. For the reasons stated, finding no merit in this appeal, it is ordered to be dismissed, but with no order as to costs. (Vinod K. Sharma) Judge March 17, 2010 R.S.