RSA No. 2136 of 2002 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 2136 of 2002 (O&M) Date of Decision: 04.5.2011. Sucha Singh .......Appellant Vs. Bahal Singh and another ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. B.R.Mahajan, Advocate for the appellant. Mr. Dhirinder Chopra, Advocate for the respondents. ..... SABINA, J. Plaintiff had filed a suit for joint possession by way of specific performance of agreement to sell dated 31.7.1992. The case of the plaintiff in brief was that the defendants were co-owners in the suit land to the extent of 1/3rd share. Plaintiff was also a co-sharer to the extent of 1/6th share. Defendants had agreed to sell the land measuring 17 Kanals to the plaintiff vide agreement to sell dated 31.7.1992. The entire sale consideration was paid by the plaintiff at the time of execution of the agreement to sell. The sale deed was to be executed on or before 31.7.1995. Possession of the land in question was handed over to the plaintiff at the time of execution of agreement to sell in question. Defendants had, however, failed RSA No. 2136 of 2002 (O&M) -2- to execute the sale deed in favour of the plaintiff, although he had always remained ready and willing to perform his part of the contract. Hence, the suit for specific performance was filed by the plaintiff. Defendants, who are the brothers of the plaintiff, in their written statement, denied the contentions in the plaint. The execution of the agreement to sell in question was denied. It was denied that the defendants had received the sale consideration to the tune of ` 92437.50 P from the plaintiff. It was averred that the agreement to sell in question was a false and fabricated document. Plaintiff had earlier also mortgaged the suit land with Oriental Bank of Commerce to obtain the loan for purchase of tractor without the knowledge of the defendants. Defendants had filed a complaint under Sections 464/465/471/467/120-B of the Indian Penal Code read with section 34 of the Indian Penal Code against the plaintiff. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendants entered into agreement to sell dated 31.7.1992 for the sale of the land measuring 17 Kanals and received Rs. 92437.50, the entire sale consideration ? OPP 2. Whether the plaintiff has been ready and willing to perform his part of the contract? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is time barred? OPD 5. Whether the suit is bad for non-joinder of RSA No. 2136 of 2002 (O&M) -3- parties? OPP 6. Relief.” Additional Civil Judge (Senior Division) vide judgment and decree dated 27.1.1999, decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, defendants preferred an appeal and the same was allowed by the Additional District Judge vide judgment and decree dated 16.2.2002. Consequently, the suit of the plaintiff was dismissed. Hence, the present appeal by the plaintiff. Learned counsel for the appellant has submitted that the first appellate court had erred in dismissing the suit of the plaintiff. Plaintiff has successfully established the due execution of the agreement to sell in question. Defendants, on the other hand, had failed to establish their plea that the agreement to sell in question was a result of fraud or forgery. The criminal complaint filed against the plaintiff by the defendant No.2 was dismissed by the Judicial Magistrate Ist Class, Amritsar vide the judgment dated 29.1.2002. (Certified copy of the statement has been placed on record, during the course of arguments). Learned counsel for the respondents, on the other hand, has submitted that the agreement to sell in question had not been executed by the defendants. In fact, the agreement to sell in question was a result of fraud and forgery. No reliance could be placed on the statement of witnesses, examined by the plaintiff. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves to be allowed. The substantial question of law that arises in this RSA No. 2136 of 2002 (O&M) -4- case is, as to whether the judgment and decree, passed by the first appellate court are contrary to the evidence led on record and are perverse. The plaintiff had sought specific performance of agreement to sell dated 31.7.1992 (Ex. P-8). In order to prove the due execution of the agreement to sell in question, the plaintiff examined Harbans Singh Sidhu, Deed Writer as PW-1 and Pritam Kaur, attesting witness of the agreement to sell as PW-3. Plaintiff himself appeared in the witness box as PW-2. PW-1-Harbans Singh Sidhu, Deed Writer deposed that he had typed the agreement to sell in question and thereafter it was read over to the parties and they had signed/thumb marked the same, after admitting its contents to be correct. He also deposed that he had entered the agreement to sell at serial No. 498 in his register on 31.7.1992. The testimony of the said witness could not be discarded merely because he was not in possession of the identity card or his licence on the date when he was examined in the court. PW-3-Pritam Kaur is related to the parties. The said witness had deposed qua the due execution of the agreement to sell in question between the parties. Since the said witness is equally related to both the parties, she had no reason to depose falsely against the defendants. Defendants, on the other hand, appeared in the witness box as DW-1 and DW-2 and deposed that the agreement to sell in question was not executed by them in favour of their brother/plaintiff. The plaintiff had taken a loan for purchase of tractor from the bank by mortgaging their land and when they came to know about this, they got a case registered against him. RSA No. 2136 of 2002 (O&M) -5- Thus, from the statements of the defendants, it cannot be said that they had been successful in establishing the plea of fraud or forgery, taken by them. Mere denial of execution of the agreement to sell in question by the defendants was not sufficient to hold that the agreement to sell in question was a result of fraud or forgery. The defendants could have examined a hand writing expert to establish that the agreement to sell in question was not signed/thumb marked by them. Rather, when the plaintiff moved an application for examination of the thumb impressions/signatures of the defendants from a hand writing expert, the same was opposed by the defendants and the application was dismissed on the ground that it had been moved at a belated stage. Although, the dismissal of the application, moved by the plaintiff, was upheld upto this court but it can be inferred that the agreement to sell in question had been duly executed by the defendants. In case, the agreement to sell in question had not been signed/thumb marked by the defendants, they had no reason to oppose the application, filed by the plaintiff to get the thumb impressions/signatures of the defendants compared from a hand writing expert. Learned first appellate court has allowed the appeal on irrelevant considerations. Merely because it was alleged that the plaintiff was habitual of forging documents, without their being any evidence in this regard, the learned Additional District Judge has concluded that the plaintiff had a tendency to exploit the property of others to his own advantage. In order to substantiate their plea that the fraud had been committed, the defendants had placed reliance on pendency of the criminal case RSA No. 2136 of 2002 (O&M) -6- against the plaintiff. The criminal case against the plaintiff has resulted in his acquittal. Apart from this, the defendants had not lead any evidence to substantiate their plea that the agreement to sell in question was a result of fraud. In the present case, although the plaintiff had paid the entire sale consideration but the sale deed was agreed to be executed after a gap of three years. Since the parties are brothers, the said fact cannot be given much importance. The plaintiff had got the possession of the suit land on the basis of execution of the agreement to sell in question and apparently had faith in his brothers that the sale deed would be executed in his favour. Since the plaintiff had already paid the entire sale consideration, he was obviously always ready and willing to perform his part of the contract. Thus, the judgment and decree of the learned first appellate court are contrary to the evidence on record and are perverse. The substantial question of law that arises in this case stands answered accordingly. Accordingly, this appeal is allowed. The impugned judgment and decree dated 16.2.2002, passed by learned first appellate court are set aside. Consequently, the judgment and decree, passed by the trial court are upheld. (SABINA) JUDGE May 04, 2011 Gurpreet