R.S.A. No. 4062 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4062 of 2008 (O&M) Date of decision: 10.12.2008 Baldev Singh ..Appellant v. Smt. Parmeshwari @ Panmeshri .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Sanjeev Gupta and Mr. Ajit Sihag, Advocates for the appellant. .. Rajesh Bindal J. The plaintiff is in second appeal before this Court against concurrent finding of fact by both the courts below, whereby the suit filed by him for possession by way of specific performance was dismissed. Briefly, the facts are that the appellant-appellant filed the suit with the contention that Gopi and respondent-defendant being co-sharers in the land measuring 99 kanals and 8 marlas to the extent of 1/6th and 1/12th share, respectively, entered into an agreement to sell the same with the appellant- plaintiff @ Rs. 3,18,000/-per acre. The agreement was executed on 29.11.2004. A sum of Rs. 5,00,000/- was paid as earnest money. The last date for registration of the sale deed was fixed as 1.8.2005. Gopi having got the sale deed registered qua his share, the dispute remained only with regard to the share of the respondent- defendant who, according to the appellant-plaintiff, refused to execute the same. Both the courts below did not find any merit in the contentions raised by the appellant- plaintiff as he had miserably failed to prove the agreement to sell, on which his claim was based. Learned counsel for the appellant-plaintiff submitted that Gopi and respondent-defendant had agreed to sell the property in dispute specifically mentioning therein that both were co-sharers in the land to the extent of their shares as mentioned in the agreement to sell, which was duly thumb marked by the respondent-defendant in the presence of witnesses. Further, a sum of Rs. 5,00,000/- paid as earnest money to Gopi was shared by the respondent-defendant to the extent of her share in the property. These documents having been duly proved on record and further there being partial implementation of the agreement R.S.A. No. 4062 of 2008 [2] to sell by Gopi clearly established that the documents were genuine and the stand taken by the respondent-defendant that the same were forged and fabricated was just to wriggle out of the rigours of the agreement, as she had become dishonest. Having heard learned counsel for the appellant, I do not find any merit in the submissions made. A perusal of document (Ex. P5), the alleged agreement to sell shows that Gopi had signed the same mentioning himself to be the owner of 1/6th share and also as power of attorney holder and the person responsible on behalf of the respondent-defendant, being owner of 1/12th share. Firstly, there is no power of attorney on record to show that Gopi was ever authorised by the respondent-defendant to execute the agreement to sell in her favour. The stand which was sought to be taken is that in fact the agreement was rectified by the respondent-defendant by putting her thumb impressions thereon herself. Accordingly, there was no need to produce any power of attorney is totally misconceived and an after thought for the simple reason that it had come on record that after execution of the agreement, Gopi went to the village of the respondent- defendant who lived in Jind and got the same thumb marked from her in the presence of one Satbir Singh, who was neither of the witnesses to the agreement initially signed by Gopi and the vendee. Similar is the situation with regard to the receipt vide which it is sought to be pointed out that the respondent- defendant had taken her share of money out of the earnest money. There also, Gopi is shown to have signed the same on her behalf as power of attorney holder. The basic thing which was required for succeeding in the suit was to prove the genuineness of the documents, as far as the rights flowing to the appellant against the respondent-defendant are concerned. The agreement was drafted by Shri D. N. Sharma, Advocate of Hansi and was witnessed by Prem son of Ganga Singh and Bhupinder son of Gopi Ram, both residents of Hebatpur, Tehsil Narnaund, District Hisar. None of these three persons were produced as witnesses to prove the document. From where Satbir Singh emerged at Jind, where the document was allegedly got thumb marked from the respondent- defendant, could not be referred to from the record. Even the date on which it was done is not evident from the two documents. In such a situation, the stand of the respondent-defendant that in fact she being an illiterate lady and the documents were got thumb marked by Gopi on the plea that he wanted to get the land partitioned seems to be more probable, especially considering the fact that in both the documents, a special note was written above the thumb impression of the respondent-defendant that she admits the terms mentioned therein and further that she had received her share in the earnest money, which was a kind of over act on R.S.A. No. 4062 of 2008 [3] the part of the appellant-plaintiff or Gopi. Satbir Singh, who was produced as PW1, was not even a witness to the agreement to sell. It was merely misuse of faith by Gopi as he was uncle of the respondent-defendant. Considering the aforesaid facts, as referred to in brief, I do not find that any illegality has been committed by the learned courts below in dismissing the suit filed by the appellant-plaintiff. Accordingly, while concurring with the views expressed therein, I do not find any substantial question of law arises in the present appeal. The findings recorded are plain and simple findings of fact. Accordingly, the appeal is dismissed. (Rajesh Bindal) Judge 10.12.2008 mk