RSA No. 744 of 2008 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 744 of 2008 Date of decision: December 11,2008 Tarlok Singh ..Appellant. Versus Garib Singh and another ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Avnish Mittal, Advocate for the appellant. ... Rakesh Kumar Garg,J. This is plaintiff’s second appeal challenging the judgment and decrees of the courts below whereby his suit for possession by way of specific performance of the agreement to sell dated 19.5.1998 has been dismissed. Brief facts out of which this appeal has arisen are that the plaintiff- appellant Tarlok Singh filed a suit for specific performance of the agreement dated 19.5.1998. It was pleaded by him that the defendant-respondent No.1- Garib Singh is owner in possession of the suit land. On 19.5.1998, Garib Singh had agreed to sell the suit land in favour of the plaintiff for a sale consideration of Rs. 11, 32,250/- i.e., Rs. 35,000/- per bigha and received Rs. 9 lacs as earnest money. The sale deed was to be executed on or before 15.5.1998 and the possession was to be delivered on the date of execution of the sale deed. The plaintiff-appellant asked defendants-respondents to execute the sale deed in his favour and accept the balance sale consideration but during this time, at the time of subsistence of the agreement, defendant-Garib Singh sold the land in favour of defendant No.2 Sham Lal vide sale deed dated 23.6.1998. The plaintiff has always been ready and willing to perform his part of the contract and is still ready to do so but the defendants has avoided the agreement. Hence the suit was filed. RSA No. 744 of 2008 2 The said suit was contested by the defendant-respondent No.1 who along with various other pleas took the plea that he did not enter into any agreement to sell the land with the plaintiff-appellant nor he received any sale consideration. The said suit was also contested by defendant No.2 Sham Lal who took up the plea of bonafide purchaser for consideration. The learned trial Court while passing the impugned judgment and decree dismissed the suit filed by the plaintiff-appellant holding that execution of the document is not proved. Even the appeal filed by the plaintiff-appellant before the first Appellate Authority was dismissed. Still not satisfied, the plaintiff has filed this appeal challenging the judgment and decrees of the courts below. I have heard learned counsel for the appellant and perused the record. Undisputedly, no attesting witness of the agreement to sell in question has been produced by the appellant in evidence. To prove the factum of execution, the plaintiff has himself stepped into witness box as PW5 and examined one Shri V.K. Singla, Advocate who had stated that document was scribed him. Admittedly, Shri V.K. Singla is neither a regular deed writer nor he has any license nor any entry was made by him in any of the registry kept by him. Moreover, as per his version, the document was not typed by him but was got typed at his instance. He has also not stated on oath that defendant present in the court is the same person who executed the agreement to sell in favour of the plaintiff. Moreover, the defendant had denied the execution of the document and had stated that it is a forged and fabricated document. The defendants also produced Dr. A.K. Singla, Hand Writing and Finger Print Expert who compared the thumb impression of Garib Singh on the agreement to sell with the standard thumb impression and submitted his report Ex.D5 to the effect that he is of the opinion that the questioned thumb impressions had not been tallied with the standard thumb impressions. There is no evidence to rebut the opinion of the expert witness led by the present appellant. Though the learned counsel for the appellant has referred that thumb impressions of Garib Singh on the agreement RSA No. 744 of 2008 3 to sell are not fit for comparison as they are superimposed, but the agreement to sell remained in possession of the appellant and he had not been able to explain as to how thumbs of the respondents are superimposed. The courts below have also recorded a finding of fact that passing of consideration to the defendant is also not proved as Shri V.K. Singla, Advocate while appearing as PW4 specifically stated that no consideration was passed in his presence. Thus from the above discussion no fault can be found with the impugned judgment and decrees of the courts below. No substantial question of law arises. Dismissed. December 11, 2008 (RAKESH KUMAR GARG) nk JUDGE