R.S.A. No.316 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.316 of 2008 (O&M) Date of Decision:11.11.2010 Karnail Singh .....Appellant Vs. Nidhan Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. Ashish Aggarwal, Advocate for the appellant. **** RAKESH KUMAR GARG, J. C.M. No.12473-C of 2010 For the reasons mentioned in the application, which is supported by an affidavit, the order dated 28.10.2010 is recalled and the appeal is restored to its original number. R.S.A. No.316 of 2008 This is defendant's second appeal challenging the judgment and decrees of the Courts below, whereby suit for specific performance of agreement in question filed by the plaintiff- respondent has been decreed by the Courts below after recording a concurrent finding that execution of the agreement in question stood duly proved. In the present appeal, the only grievance raised by the appellant is against the findings of Courts below regarding the execution of the agreement in question. On the basis of argument raised, this Court passed the following order on 1.12.2008:- “Learned counsel for the appellant contends that in order R.S.A. No.316 of 2008 (O&M) -2- to prove the agreement to sell, the plaintiff has examined marginal witness PW2 Lakha Singh, who has deposed in favour of the executant whereas the defendant has examined marginal witness DW2 Hira Singh, who has denied the execution of the document. It is contended that in such a situation, Section 71 of the Indian Evidence Act, 1872 comes into play which provides that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. Learned counsel for the appellant has relied upon a decision in the case of Janki Narayan Bhoir Vs. Narayan Namdeo Kadam 2003(1) RCR (Civil) 409 in which the Apex Court has held that provisions of Section 71 of the Indian Evidence Act, 1872 would not apply in a situation where only one attesting witness has been summoned and examined rather it would apply where both the attesting witnesses have been examined and there is a denial by one of the attesting witnesses. Learned counsel for the appellant has also contended that the other witness that has been examined by the plaintiff is the Scribe who has not stated in his examination-in-chief that he knew the executant of the sale deed (Karnail Singh) personally and has signed the document (agreement to sell) as an attesting witness. In this regard, decision of this Court in the cases of Surinder Singh (Dead) through LRs Vs. Anup Singh 2002 (1) RCR (Civil) 207 and Lal Singh Vs. Nand Kaur and others 1993(3) PLR 183 have been relied upon. R.S.A. No.316 of 2008 (O&M) -3- Notice of motion for 22.4.2009. In the meantime, execution shall remain stayed.” The argument raised at the time of motion hearing by learned counsel for the appellant is without any merit. Admittedly, the agreement in question is not required to be attested under law. Scribe of the agreement has duly proved the execution of said document. Even one of the attesting witnesses have proved the execution. Thus, the Courts below on appreciation of evidence, specially keeping in view the testimony of one attesting witness and the scribe, has recorded a finding that agreement to sell in question stood proved. Learned counsel for the appellant further could not dispute the settled proposition of law that a document can be proved by producing the scribe of such document which was the situation in the present case. Moreover, in the present case, appellant has admitted his signatures over the document in question but has taken the defence that in the garb of getting the mortgage deed executed, the respondent got executed the agreement to sell in question and thus the said agreement was result of fraud and misrepresentation. However, appellant could not substantiate his aforesaid plea. Thus, no fault can be found with the finding of fact recorded by the Courts below. No other point has been urged. Dismissed. November 11, 2010 ( RAKESH KUMAR GARG ) renu JUDGE R.S.A. No.316 of 2008 (O&M) -4-