IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1200 of 2005 Date of Decision: 17.2.2009 Gian Singh. ....... Appellant through Shri Vikas Singh, Advocate. Versus Gurcharan Singh @ Charan Singh and others. ....... Respondent nos. 1 & 2 through Shri K.S.Dadwal,Advocate. Respondent nos. 3 & 4 through nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgment and decree dated 5.10.2004 passed by the District Judge, Kapurthala (hereinafter described as `the First Appellate Court') vide which the appeal of defendants-respondent nos. 1 and 2 was accepted, the judgment and decree of the Additional Civil Judge (Senior Division), Phagwara (referred to hereinafter as `the trial Court') were set aside and the suit of the plaintiff- appellant was dismissed. The appellant filed a suit for possession by way of specific R.S.A.No.1200 of 2005 -2- .... performance of the agreement to sell dated 1.9.1996. It was pleaded that Niranjan Singh, father of respondent nos. 1 to 3 agreed to sell the land measuring 30 kanals 7 marlas as detailed in the head note of the plaint, i.e. 26 kanals 7 marlas situated in village Mayopatti and 4 kanals situated in village Ajnoha, District Hoshiarpur. The price of the land of village Mayopatti was fixed at Rs.90,000/- per acre, whereas that of the land situated in village Ajnoha was agreed to be sold for Rs.60,000/-. Niranjan Singh was alleged to have received Rs.2,00,000/- as earnest money, i.e., Rs.1,75,000/- for land of village Mayopatti and Rs.25,000/- for the land of village Ajnoha. The sale deed was to be executed for the land of village Mayopatti on or before 31.5.1997, whereas it was to be executed on or before 4.6.1997 in respect of the land of village Ajnoha. The balance sale consideration was to be paid at the time of execution of the sale deeds. The appellant had averred that pursuant to the agreement to sell, he was put in possession of the land in question. Niranjan Singh is said to have died prior to the dates fixed for execution of the sale deeds and since respondent nos. 1 to 3 were his legal heirs, they were bound by the terms of the agreement and were required to perform their part of contract. It was the case of the appellant that he was always willing and ready to perform his part of agreement and he had, in fact, approached respondent nos. 1 to 3 with balance sale consideration, but they did not execute the sale deeds and ultimately, legal notice dated 23.5.1997 was issued to them and they were requested to execute the sale deed in respect of the land of village Mayopatti before 31.5.1997 or on 2.6.1997 as 31.5.1997 and 1.6.1997 were holidays R.S.A.No.1200 of 2005 -3- .... and on or before 4.6.1997 in respect of the land of village Ajnoha. It was alleged by the appellant that he remained present in the office of Sub Registrar, Phagwara on 2.6.1997 and 4.6.1997 with balance sale consideration and other expenses required for execution of the sale deeds, but since respondent nos. 1 to 3 did not get the sale deeds executed, he was forced to file the suit. In the alternative, it was prayed that a decree for recovery of Rs.4,00,000/- be passed as Niranjan Singh had agreed to pay Rs.2,00,000/- received by him as earnest money along with Rs.2,00,000/- as damages. Still further, the appellant had prayed that the defendants- respondents be restrained from alienating or disposing of the suit lands to any body and that the mortgage deed dated 4.6.1999 executed in favour of respondent no.4 be declared as null & void as the same is nothing but a sham transaction. Upon notice, respondent nos. 1 and 2 appeared and filed written statement, whereas respondent nos. 3 and 4 were proceeded ex parte. It was pleaded by respondent nos. 1 and 2 that the alleged agreement to sell is a result of fraud and conspiracy between respondent no.3, the appellant and two other persons, namely, Tarsem Singh and Kuldeep Singh. They denied the execution of any agreement to sell and also denied the factum of receipt of earnest money by Niranjan Singh. It was alleged by them that in fact, respondent no.3 wanted to grab the whole property left by Niranjan Singh. The parties went to trial on the following issues:- 1. Whether Niranjan Singh father of the defendants entered R.S.A.No.1200 of 2005 -4- .... into an agreement to sell on 1.9.1996 with the plaintiff to sell the land in dispute?OPP 2. If issue no.1 is proved, whether the alleged agreement is a forged, fabricated document and is the outcome of fraud?OPD] 3. Whether the plaintiff is entitled to possession of the suit land by way specific performance of the contract dated 1.9.1996?OPP 4. Whether the plaintiff is entitled to recovery of Rs.4,00,000/- in the alternative?OPP 5. Whether the plaintiff is entitled to decree for permanent injunction as prayed for?OPP 6. Whether the suit is not maintainable?OPD 7. Whether the plaintiff is estopped from filing the present suit by his act and conduct?OPD 8. Whether the plaint is not properly valued for the purpose of court fee and jurisdiction?OPD 9. Relief. After appraisal of the entire evidence on record, the trial Court decreed the suit of the appellant by holding that there was a valid existing agreement between the appellant and Niranjan Singh and that he was always ready and willing to perform his part of the contract and that respondent nos. 1 to 3, who were legal heirs of Niranjan Singh, were bound by the said agreement and accordingly, they were directed to execute the sale deed by R.S.A.No.1200 of 2005 -5- .... way of specific performance. The appellant was also directed to deposit the remaining sale consideration within a period of 45 days. In appeal, the findings of the trial Court were set aside and it was concluded by the First Appellate Court that the agreement to sell had not been validly proved and similarly, the passing of consideration was also not proved. A number of suspicious circumstances were noticed by the First Appellate Court to conclude as above. It was observed that the agreement was not written on a stamp paper and was merely written on “rule paper” taken out from a note book with two revenue stamps of Re.1 each and that the proof of consideration was missing. The following were the factors which ultimately weighed with the First Appellate Court to dismiss the suit of the appellant:- 1. The alleged agreement was written on a scrap paper; 2. It was not scribed by a regular and licensed deed writer; 3. There was no proof of passing of consideration; 4. Delivery of possession was pleaded but not proved; 5. The person who scribed the alleged agreement was not examined; 6. Necessity to sell the land by Niranjan Singh was not established; 7. Though no issue was struck as to whether the plaintiff always remained ready and willing to perform his part of contract, yet, the trial Court duly returned a finding to that effect. R.S.A.No.1200 of 2005 -6- .... Learned counsel for the appellant assailed the findings of the First Appellate Court to contend that a plea of fraud had been set up by respondent nos. 1 and 2 and, therefore, onus to prove the same was on them. He submitted that there was a valid agreement to sell in favour of the appellant and once it was established, then respondent nos. 1 to 3 were bound to perform their part of contract being the legal heirs of Niranjan Singh. It was further submitted that when there was positive evidence regarding all these factors, the First Appellate Court was wrong in concluding to the contrary. On the other hand, learned counsel for respondent nos. 1 and 2 argued that the findings recorded by the First Appellate Court are correct as Niranjan singh was an old man of 105 years, who died soon after the execution of the alleged agreement to sell. It was contended by him that the said agreement was a result of fraud and forgery and collusion between the appellant, respondent no.2, Kuldip Singh and Tarsem Singh. I have considered the rival contentions and have carefully examined the record. A perusal of the agreement to sell, which is on record as Exhibit P2, reveals that it is totally uninspiring. As observed by the First Appellate Court, it is merely a scrap paper. A person, who is executing an agreement to sell, would normally ensure that the proper course is adopted and the same is scribed on a stamp paper, especially when the executor is not literate. It is also common knowledge that an illiterate person, who is executing an agreement to sell, would not thumb mark the same without R.S.A.No.1200 of 2005 -7- .... ensuring that it is written on a proper paper. Even if, this fact is to be ignored, then the fact remains that the passing of consideration to Niranjan Singh has not been proved. The evidence to this effect is woefully short. PW2-Tarsem Singh stated that an amount of Rs.2 lacs was withdrawn by appellant-Gian Singh from his bank account, while the appellant when appeared as PW3, deposed that he had borrowed a sum of Rs.2 lacs from his friend on 1.9.1996 and returned the same on 3.9.1996. He further testified that this amount was received by him from the bank, but no evidence was led to show that he had withdrawn such a huge amount from the bank. The recital in the agreement, Exhibit P2, reveals that the possession of the land in dispute was parted with, but the revenue record speaks to the contrary. All these factors when cumulatively taken together, lead to suggest that there was no valid existing agreement to sell as no consideration was proved to have been passed to deceased-Niranjan Singh. Consideration is the essence of a transaction to sell of which the agreement is a precursor to an ultimate sale. The positive case of the appellant was that he had paid consideration of Rs.2 lacs which he has failed to establish. The second positive aspect of the case set up by the appellant was that the possession of the land in dispute was handed over to him, which is also belied by the evidence on record. The passing of consideration not having been established, the very basis of the case as set up by the appellant is rendered unbelievable. R.S.A.No.1200 of 2005 -8- .... Even the person, who wrote the agreement, Exhibit P2, was not examined and the witnesses, who testified to the execution thereof, were also from different village. Accordingly, this Court is of the opinion that the findings which have been recorded by the First Appellate Court do not warrant any interference as they have been correctly arrived at. No substantial question of law arises for determination in this appeal, which is held to be without any merit and is dismissed. February 17,2009 ( Mahesh Grover ) “SCM” Judge