Regular Second Appeal No. 4978 of 2009(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4978 of 2009(O&M) Date of decision : May 16, 2011 Hanuman ....Appellant versus Rohtash ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Arun Yadav, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 14693.C of 2009 Allowed as prayed for. RSA No. 4978 of 2009 Haunuman defendant having lost in both the courts below has come up by way of instant second appeal. Plaintiff-respondent Rohtash filed suit against defendant- appellant for possession of 8 kanals suit land being 160/3993 share of 199 kanals 13 marlas land by specific performance of agreement to sell dated 24.8.2000. The plaintiff pleaded that defendant being owner in possession of the suit land agreed to sell the same to the plaintiff for Rs 1,20,000/- and Regular Second Appeal No. 4978 of 2009(O&M) -2- received Rs 90,000/- as earnest money and executed impugned agreement. Sale deed was to be executed upto 8.8.2001. On 1.8.2001, the plaintiff asked the defendant for execution and registration of the sale deed. Accordingly, on 8.8.2001, the plaintiff remained present in the office of Sub Registrar for getting sale deed executed and registered in terms of the agreement but the defendant did not turn up and committed breach of the agreement necessitating the filing of the instant suit. The defendant broadly denied the plaint averments. The defendant denied having agreed to sell the suit land or having received any earnest money from the plaintiff or having executed impugned agreement. It was pleaded that the plaintiff is money lender whereas the defendant is illiterate rustic villager. The plaintiff might have obtained thumb impressions of defendant by preparing bogus agreement because there were money transactions between the parties. Learned Civil Judge (Senior Division), Rewari vide judgment and decree dated 27.9.2006 decreed the plaintiff's suit. First appeal preferred by defendant has been dismissed by learned Additional District Judge, Rewari vide judgment and decree dated 17.9.2009. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. In order to prove his case, the plaintiff appeared himself in the witness box and examined both attesting witnesses of the impugned agreement and also its scribe. All of them have stated according to the Regular Second Appeal No. 4978 of 2009(O&M) -3- plaintiff's version. Plaintiff also examined Stamp Vendor from whom stamp papers had been purchased for the impugned agreement. The plaintiff has also examined Fingerprint Expert who opined that the thumb impressions of the defendant on the impugned agreement matched with his specific/standard thumb impressions. Registration Clerk has been examined to depict that the plaintiff remained present in the office of Sub Registrar on 8.8.2001 to get the sale deed executed in terms of the agreement but the defendant did not turn up and thereupon the plaintiff affirmed affidavit which was attested by Sub Registrar as Executive Magistrate. On the other hand, defendant himself appeared as DW1 and also examined Rajesh as DW2 and Hoshiyar Singh as DW3. All of them broadly stated according to defendant's version. Plaintiff has led overwhelming cogent evidence to prove his case. He has examined both attesting witnesses of the impugned agreement as well as scribe. They have stated about due execution of the agreement by defendant in favour of plaintiff and also about payment of earnest money of Rs 90,000/- by plaintiff to the defendant. Their statements could not be shaken in cross-examination. The thumb impressions on the impugned agreement are also proved to be of defendant not only from the direct statements of the aforesaid witnesses but also from the testimony of the Fingerprint Expert. Science of comparison of fingerprint is perfect science. Defendant has not examined any Fingerprint Expert to rebut the opinion of Fingerprint Expert examined by the plaintiff. On the other hand, the defendant did not come Regular Second Appeal No. 4978 of 2009(O&M) -4- to the court with clean hands. He did not clearly admit his thumb impressions on the impugned agreement and rather took a vague plea that if the plaintiff had got prepared impugned agreement by using his thumb impressions on blank papers, the defendant is not bound by the same. Thus, the defendant did not clearly admit his thumb impressions and rather added rider 'if' while raising plea about his thumb impressions. Moreover, it is not his plea in the written statement that his thumb impressions had been obtained on blank papers but in the witness box, defendant stated that his thumb impressions were obtained on blank papers. Moreover, no money transaction between the parties has been proved except the impugned agreement and therefore, there was no occasion for the plaintiff to have obtained thumb impressions of the defendant in the garb of money transaction. It is not the case of the defendant that on the date of agreement he had received payment of loan of Rs 90,000/- from the plaintiff and in that garb the plaintiff obtained thumb impressions of the defendant on the impugned agreement. Thus, examined from any angle, defendant's version is completely un-acceptable. It may also be added that the defendant pleaded that plaintiff is money lender but there is no cogent evidence to substantiate this version. On the contrary, defendant's witness Rajesh DW2 stated that the plaintiff was not money lender. Hoshiyar Singh DW3 has enmity with the plaintiff because Hoshiyar Singh admitted that plaintiff had made report to the police regarding theft of his tubewell motor by son of Hoshiyar Singh DW3. Thus, defendant's evidence is otherwise also not reliable. Regular Second Appeal No. 4978 of 2009(O&M) -5- For the reasons aforesaid, I have no hesitation in affirming the concurrent finding of the courts below in favour of the plaintiff-respondent and against defendant-appellant. The said finding is fully justified by the evidence on record. The said finding is not depicted to be illegal or perverse nor it is based on misreading and misrepresentation of evidence. The said finding, therefore, does not call for interference in exercise of second appellate jurisdiction. This second appeal does not raise any question of law much less substantial question of law for determination. Accordingly, the appeal is found to be lacking any merit and is, therefore, dismissed in limine. ( L.N. Mittal ) May 16, 2011 Judge 'dalbir'