R.S.A. No. 399 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 399 of 2010 (O&M) Date of decision: 09.04.2010 Kuljeet Singh ....Appellant versus Lakhvir Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. O.P. Hoshiarpuri, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 10.8.2009, passed by the learned Courts below, vide which a decree for refund of earnest money along with interest, has been passed against the defendant/appellant. The plaintiff/respondent filed a suit for possession by way of specific performance of agreement to sell dated 14.8.2000. The case set up by the plaintiff/respondent was, that the defendant/appellant executed an agreement to sell dated 14.8.2000 for sale of land measuring 19 kanals situated at village Kot Karor Kalan, Tehsil and District Ferozepur. In the alternative, prayer was made for recovery of Rs.3,32,500/- (Rupees three lac thirty two thousand and five hundred only) i.e. Rs.1,41,000/- (Rupees one lac and forty one thousand only) as refund of earnest money and Rs.1,91,500/- (Rupees one lac ninety one thousand and five hundred only) as compensation and damages for the breach of the agreement. The plaintiff also pleaded that he was always ready and R.S.A. No. 399 of 2010 (O&M) -2- willing to perform his part of the contract by showing his appearance before the Joint Sub-Registrar, Talwandi Bhai, on 15.12.2000 i.e. the date fixed for execution of the sale deed. The suit was contested, wherein the execution of the agreement and receipt of earnest money was declined. It was the case of the defendant/appellant, that it could not be believed that huge amount of Rs.1,41,000/- (Rupees one lac and forty one thousand only) would have been paid without getting the possession of the suit property. In sum and substance the plea was of denial of execution of agreement to sell. The learned Courts below, on appreciation of evidence, recorded a concurrent finding of fact that the defendant/appellant had executed agreement to sell the land measuring 19 kanals on 14.8.2000 in favour of the plaintiff/respondent. On issue No.2, the learned Courts below held that plaintiff/respondent remained ready and willing to perform his part of the contract. The agreement was held to be not forged and fabricated document and it was held that suit was maintainable. However, in view of the fact that the defendant/appellant was not the owner of 19 kanals of land and there was no plea by the plaintiff/respondent to get the sale deed executed qua the ownership of the defendant, the learned Courts below decreed the suit for refund of earnest money only along with interest. The concurrent finding of fact recorded by the learned Courts below are challenged by the learned counsel for the appellant, by raising the following substantial questions of law: - “1. Whether the non-examination of the scribe and R.S.A. No. 399 of 2010 (O&M) -3- stamp vendor makes Ex.P1 a suspicious document? 2. Whether the learned Courts below could place reliance on the statements of PW1 and PW2 i.e. attesting witnesses of the agreement, when they did not know the appellant personally and admitted their relationship with the plaintiff/respondent? 3. Whether the application filed by the defendant/appellant could be dismissed after the plaintiff/respondent was permitted to examine handwriting expert to prove the signatures of the defendant/appellant on the agreement to sell?” In support of the substantial questions of law, referred to above, the learned counsel for the appellant vehemently contended, that in order to prove the due execution of the agreement to sell, the plaintiff/respondent only examined PW1 and PW2, who, in cross- examination, admitted their relationship with the plaintiff, while PW1 admitted that he was close friend of the plaintiff and on the other hand PW2 admitted to be nephew of the plaintiff. The contention of the learned counsel for the appellant, therefore, was, that in view of the interested attesting witnesses, it was necessary for the plaintiff/respondent to have examined scribe to prove the due execution of the agreement. This contention of the learned counsel for the appellant cannot be accepted. It is well settled law that the evidence of the witness cannot be rejected merely because he happens to be relation or associated with the party. There is no such requirement in law, that stamp vendor or scribe is also required to be examined to prove the agreement once the R.S.A. No. 399 of 2010 (O&M) -4- agreement is proved by the attesting witnesses, who stood the test of cross-examination. Furthermore when the signatures were also proved by the handwriting expert. The learned Courts below, on appreciation of evidence, have recorded a concurrent finding of fact, which cannot be a subject matter of challenge in regular second appeal. On the third substantial question of law, the learned counsel for the appellant contended that the learned Court below after closing the evidence of the plaintiff and defendant, allowed the plaintiff/respondent to examine the handwriting expert in rebuttal, whereas the application moved by the defendant/appellant for examining handwriting expert was declined, which resulted in prejudice to the defendant/appellant, therefore, the judgment and decree passed by the learned Courts below deserved to be set aside. This plea of the learned counsel for the appellant again deserves to be noticed to be rejected. Onus to prove issue No.3, that the agreement was forged and fabricated document, was on the defendant/appellant, therefore, it was for the plaintiff/respondent to have examined the witnesses to prove the factum of signatures. Plaintiff was allowed to lead evidence in rebuttal, on issue No.3. Once, the rebuttal evidence of the plaintiff was allowed on the issue, the onus to prove of which was on defendant/appellant, the defendant did not have any such right to examine any other witness in rebuttal to the rebuttal evidence led by the plaintiff/respondent. It cannot be said that the learned Courts below committed an error in rejecting the application moved by the defendant/appellant. R.S.A. No. 399 of 2010 (O&M) -5- Even otherwise, the cumulative effect of the evidence on record leads to only one conclusion, that the defendant/appellant had executed the agreement to sell. The substantial questions of law raised are answered against the appellant, and finding no merit in this appeal, it is dismissed, but with no order as to costs. (Vinod K. Sharma) Judge April 09, 2010 R.S.