Regular Second Appeal No. 2391 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2391 of 2011 Date of decision : May 27, 2011 Bagicha Singh and others ....Appellants versus Yograj ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Jasdev Singh Mehdiratta, Advocate, for the appellants L.N. Mittal, J. (Oral) Yograj plaintiff-respondent filed suit against Gurmukh Singh defendant (since deceased and represented by appellants as his legal representatives) for possession of the suit land measuring 3 bighas 7 biswas by specific performance of agreement to sell dated 7.10.1998. The plaintiff alleged that defendant agreed to sell the suit land to the plaintiff for total consideration of Rs 2,51,250/- and received Rs one lac as earnest money and executed the aforesaid agreement. Sale deed was to be executed upto 8.8.2003. On 8.8.2003, the plaintiff went to the office of Sub Registrar with bank draft of balance sale consideration to get the sale deed executed in terms of the agreement but the defendant did not turn up. The plaintiff Regular Second Appeal No. 2391 of 2011 -2- served notice on the defendant to come present in the office of Sub Registrar on 8.9.2003 for executing sale deed but in reply to the said notice defendant denied the very execution of the agreement. The plaintiff always remained ready and willing to perform his part of the contract but defendant committed breach of the agreement necessitating the filing of the suit. Defendant broadly denied the plaint averments. It was pleaded that on 7.10.1998 defendant borrowed Rs one lac from the plaintiff who obtained receipt thereof from the defendant and also obtained signatures of defendant on blank stamp papers. Later on the defendant repaid the loan amount and asked the plaintiff to hand over the blank signed stamp papers but the plaintiff did not return the same on the pretext that the same had been lost. The defendant believed the plaintiff. Now the plaintiff has prepared impugned agreement on the said blank signed stamp papers. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Rajpura vide judgment and decree dated 2.6.2009 instead of decreeing suit for specific performance of the agreement, decreed the suit for recovery of Rs one lac with interest thereon @ 6% per annum since three years prior to the filing of the suit till recovery. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Patiala vide judgment and decree dated 29.1.2011 and thereby plaintiff's suit has been decreed for possession of the suit land by specific performance of the impugned agreement. Feeling aggrieved, legal representatives of the defendant have Regular Second Appeal No. 2391 of 2011 -3- preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Plaintiff has led sufficient evidence to prove the due execution of the impugned agreement. The plaintiff himself appeared as PW1 and examined Vijay Kumar PW2 an attesting witness of the agreement. Both of them have broadly stated according to plaintiff's version. There is practically no evidence to rebut the aforesaid cogent evidence. The defendant himself could not appear in the witness box as he has died during the pendency of the suit. Defendant's son Jagdish Singh (appellant no. 3) appeared as DW1 but he was not witness of the transaction in question and consequently his testimony does not carry much probative value. Plaintiff before filing the suit had served notice on the defendant and in reply to the said notice defendant did not plead that he had taken loan from the plaintiff who had obtained his signatures on blank stamp papers. The defendant in reply to the notice simply denied the execution of the agreement. Thus, for the first time in the written statement the defendant came up with a new version that he had taken loan from the plaintiff who obtained receipt from the defendant and also obtained his signatures on blank stamp papers. No such plea was taken in reply to the notice. Consequently, the aforesaid plea in the written statement cannot be believed being result of afterthought. In addition to the aforesaid, the defendant in his own Regular Second Appeal No. 2391 of 2011 -4- handwriting has also mentioned that he had received Rs one lac and then affixed his signatures below the said writing on the agreement. A bare perusal of the photostat copy of the impugned agreement as shown by the counsel for the appellants reveals that it cannot be said that signatures of the defendant had been obtained on blank stamp papers. Moreover, if the defendant had given receipt and had also affixed signatures on blank stamp papers while taking the loan, he would not have repaid the loan without taking back the said receipt and blank signed stamp papers or at least without obtaining receipt from the plaintiff regarding repayment of the loan amount even if the plaintiff alleged that blank signed stamp papers had been lost. However, no such receipt was obtained by the defendant from the plaintiff at the time of alleged repayment of loan. Defendant's version in this regard was also discarded by the trial court and said finding of the trial court was not challenged by legal representatives of the defendant. In this context, it is significant to notice that defendant remained Lambardar for 40/45 years and was thus a wise person. So his version of affixing signatures on blank stamp papers cannot be accepted. In fact there is practically no evidence to support the defendant's version pleaded in the written statement because unfortunately the defendant died during the pendency of the suit and no other witness of the alleged transaction has been examined. Learned counsel for the appellants contended that there is testimony of expert witness examined by the defendant depicting that the Regular Second Appeal No. 2391 of 2011 -5- agreement has been prepared on blank signed papers. The contention cannot be accepted. Perusal of photostat copy of impugned agreement does not justify any such conclusion. It was also contended that date '7.10.1998' on the agreement has been typed by deleting the date typed originally. The contention does not help the appellants because it is the case of the defendant himself that he had taken loan on 7.10.1998. Consequently, date of transaction is not in issue. The plaintiff himself appeared in the witness box and examined Vijay Kumar attesting witness of the impugned agreement whereas Ravinder Kumar Jain, the other attesting witness of the agreement had already died. The plaintiff has, thus, led cogent evidence to prove his case. The defendant impliedly admitted his signatures on the impugned agreement by his pleading in the written statement. The agreement has been signed at one place on the first sheet and at two places on the second sheet along with endorsement in the handwriting of the defendant himself regarding receipt of Rs one lac as earnest money. It has also come in evidence that defendant was well to do person owning 40 to 45 bighas land. He was also Lambardar. It is, therefore, un-acceptable that he affixed his signatures on blank stamp papers merely for taking loan of Rs one lac while he was owning so much land. For the reasons aforesaid, finding of the lower appellate court that execution of the impugned agreement stands fully proved is justified by Regular Second Appeal No. 2391 of 2011 -6- the evidence on record and does not suffer from any perversity or illegality nor it is based on misreading or misappreciation of evidence so as to call for interference in second appeal. No question of law much less substantial question of law arises for adjudication in the instant second appeal. The appeal is meritless and is accordingly dismissed in limine. ( L.N. Mittal ) May 27, 2011 Judge 'dalbir'