RSA No.3962 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3962 of 2010 (O & M) Date of Decision: 08.10.2010. Smt. Sunil Kumari .……Appellant Versus Dharampal and another ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. V.K. Jain, Sr. Advocate with Mr. J. K. Bhatti, Advocate for the appellant. L. N. MITTAL, J (ORAL) CM No.11790-C of 2010 Allowed as prayed for. CM No.11791-C of 2010 Allowed as prayed for. Main Appeal. Defendant-Sunil Kumari having lost in both the Courts below, has filed the instant second appeal. Respondents-plaintiffs-Dharampal and Surender filed suit against defendant-appellant for specific performance of the agreement to sell dated 16.07.2001 alleging that the defendant agreed to sell the suit land measuring 44 kanals being 880/4608 sharer of 230 kanals 8 marlas land to the plaintiffs for total consideration of Rs.9,10,000/- out of which amount of Rs.9,00,000/- was paid by the plaintiffs to the defendant at the time of agreement against separate receipt. The defendant executed the aforesaid RSA No.3962 of 2010 (O & M) -2- agreement and receipt. Possession of the suit land was also delivered to the plaintiffs at the time of agreement. Sale deed was to be executed on 31.01.2002. Accordingly, the plaintiffs went to the office of Sub-Registrar on 31.01.2002 with requisite amount to get the sale deed executed in terms of the agreement, but the defendant did not come present and committed breach of the agreement. The defendant failed to execute the sale deed in spite of notice and demands. The defendant denied the plaint allegations. The defendant denied having executed the impugned agreement and receipt or having received Rs.9,00,000/- as earnest money. The defendant alleged that agreement and receipt are forged and fabricated documents. The plaintiffs and the witnesses of the agreement are land grabbers and forge such agreements by becoming purchasers and witnesses. Delivery of possession of the suit land by defendant to plaintiffs was also denied. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Ganaur vide judgment and decree dated 26.08.2009 decreed the plaintiffs' suit. First appeal preferred by the defendant stands dismissed by learned District Judge, Sonepat vide judgment and decree dated 01.06.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned Senior counsel for the appellant and perused the case file. Plaintiff No.2 himself appeared in the witness box and stated according to his version. The plaintiffs have also examined RSA No.3962 of 2010 (O & M) -3- Randhir Singh PW-2 and Kaptan Singh PW-3 both attesting witnesses of the impugned agreement. Balbir Singh PW-5 is scribe of the agreement. All these witnesses have also supported the plaintiffs' case. Ashok Kashyap PW-7 is handwriting and finger print expert. He has opined that the impugned agreement and receipt bear thumb impressions as well as signatures of Sunil Kumari defendant. On the date of agreement itself, defendant had purchased 57 kanals 12 marlas land being 1/4th share of 230 kanals 8 marlas land from Phool Kaur and out of the same, the defendant allegedly agreed to sell the suit land measuring 44 kanals to the plaintiffs. Towards part payment of the sale consideration for the sale deed executed by Phool Kaur in favour of defendant on the same day, a sum of Rs.4,00,000/- was paid by plaintiffs to Phool Kaur by way of Bank draft. Satdev PW-6 is official from Indian Bank. He stated from record that the said bank draft of Rs.4,00,000/- was got prepared by plaintiff No.1 in favour of Phool Kaur. On the other hand, defendant herself appeared as DW-1 and examined her husband Azad Singh as DW-2. Both of them broadly have reiterated their version. Azad Singh also stated that plaintiff No.2 had taken loan of Rs.4,00,000/- from him on 04.07.2000 and when Azad Singh demanded back the said amount on 16.07.2001, the plaintiff No.2 got prepared bank draft for Rs.4,00,000/- in favour of Phool Kaur as part payment of sale consideration to be paid by defendant to Phool Kaur for purchase of the land. Plaintiffs have led overwhelming evidence to prove their case. Both attesting witnesses of the agreement and receipt have RSA No.3962 of 2010 (O & M) -4- been examined. They have supported the plaintiffs' case. Testimony of scribe of the agreement and receipt is also very significant because the same scribe on the same date also scribed sale deed in favour of defendant herself a little before the agreement and receipt were scribed. Consequently, there could be no dispute about the identity of the defendant being the executant of the impugned agreement and receipt. In addition to it, the plaintiffs have also examined handwriting and finger print expert, who has opined that signatures and thumb impressions of the defendant on the agreement and receipt tally with her specimen/standard signatures and thumb impressions. Science of comparison of finger print is a prefect science. It is thus fully established from the entire evidence of the plaintiffs that the agreement and receipt bear thumb impressions of the defendant and also bear her signatures. The defendant has not pleaded as to how the agreement and receipt came to bear her thumb impressions and signatures. It is thus manifest that the suit of the plaintiffs has been rightly decreed by the Courts below. Learned counsel for the appellant contended that the appellant defendant had purchased 57 kanals 12 marlas land on the same day for Rs.11,88,000/- i.e at the rate of about Rs.1,031/- per marla approximately, but after adding expenses of sale deed, the purchased price came to about Rs.1,160/- per marla and, therefore, defendant could not have agreed to sell the suit land to the plaintiffs at the rate of about Rs.1,034/- per marla. Merely on the basis of this hypothetical contention, the plaintiffs cannot be non-suited. No such plea was put to the plaintiff No.2 in his cross-examination. On the RSA No.3962 of 2010 (O & M) -5- other hand, the sale price of suit land payable by the plaintiffs is almost the same at which the defendant herself purchased the suit land. In addition to it, it is amply proved that plaintiffs paid Rs.4,00,000/- on behalf of defendant to her vendor Phool Kaur by way of bank draft. The defendant in the written statement did not take any plea as to how the said amount was paid by the plaintiffs on her behalf. The statement of defendant's husband Azad Singh that plaintiff No.2 had taken loan of Rs.4,00,000/- from him on 04.07.2000, is thus completely beyond pleadings. Even otherwise self serving statement of defendant's husband to this effect carries no probative value in the absence of any other evidence. No document regarding alleged loan has either been placed on record. Moreover, loan was allegedly taken from Azad Singh by plaintiff No.2 whereas Bank draft of Rs.4,00,000/- was got prepared by plaintiff No.1. The defendant herself has also not denied her signatures and thumb impressions on the impugned agreement and receipt. The defendant has also not examined any handwriting and finger print expert to depict that the impugned receipt and agreement do not bear her thumb impressions and signatures. There are no particulars of fraud pleaded or proved by the defendant. The mere plea that agreement and receipt are forged and fabricated does not help the defendant because agreement and receipt are proved to bear thumb impressions and signatures of the defendant and, therefore, the said documents cannot be said to be forged ones. In addition to it, possession of the suit land was also delivered to the plaintiffs at the time of agreement. Counsel for defendant made statement on 19.09.2003 in the trial Court that the defendant shall not dispossess RSA No.3962 of 2010 (O & M) -6- the plaintiffs from the suit land during the pendency of the suit. This statement would depict that possession of the suit land stood delivered by defendant to the plaintiffs. This material circumstance further strengthens the case of the plaintiffs regarding the genuineness of the agreement. There is concurrent finding of fact by both the Courts below. The said finding is based on proper appreciation of evidence and is supported by cogent reasons. The said finding is not shown to be perverse or illegal so as call for interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is bereft of any merit and is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 08.10.2010. A. Kaundal