Regular Second Appeal No. 3771 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3771 of 2008 Date of decision : August 16, 2010 Sewa Singh ....Appellant versus Partap Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Vipin Mahajan, Advocate, for the appellant Ms. Gaganpreet Kaur, Advocate, for the respondent L.N. Mittal, J. (Oral) Sewa Singh defendant having lost in both the courts below has approached this Court by way of instant second appeal. Partap Singh plaintiff-respondent filed suit against defendant- appellant Sewa Singh for specific performance of the agreement dated 30.6.2004 alleging that the defendant agreed to sell the suit land measuring 10 kanals 17½ marlas to the plaintiff at the rate of Rs 5 lacs per acre and received Rs 3,75,000/- as earnest money and executed the aforesaid agreement. The sale deed was to be executed on 30.12.2004. The plaintiff always remained ready and willing to perform his part of the contract and even went to the office of Joint Sub Registrar on 30.12.2004 with requisite Regular Second Appeal No. 3771 of 2008 -2- money but the defendant did not turn up. Notice dated 13.1.2005 was also sent to the defendant who refused to receive it. However, the defendant did not execute sale deed in terms of the agreement and thus, the defendant committed breach of the agreement. The defendant denied the plaint allegations. The defendant denied that he agreed to sell the suit land to the plaintiff or that he executed the impugned agreement. The defendant also denied having received earnest money from the plaintiff. The defendant alleged that he had been selling his agricultural produce at the shop of plaintiff's brother Satnam Singh who is Commission Agent. The defendant borrowed Rs 50,000/- from Satnam Singh who obtained signatures of the defendant on some blank paper and thereafter the impugned agreement was prepared. Learned Civil Judge (Senior Division), Gurdaspur vide judgment and decree dated 13.6.2007 decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned District Judge, Gurdaspur vide judgment and decree dated 3.5.2008. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. The plaintiff himself appeared into witness box and also examined one attesting witness of the agreement and scribe of the agreement. All of them supported plaintiff's version. On the other hand, defendant himself stepped into witness box and has stated according to his own version. Plaintiff's case is supported by statements of the attesting witness and the scribe of the agreement. Defendant's whole version is that Regular Second Appeal No. 3771 of 2008 -3- he had taken loan of Rs 50,000/- from plaintiff's brother who is Commission Agent and at that time, plaintiff's brother obtained signatures of the defendant on blank paper which has been converted into impugned agreement. However, the defendant has even failed to prove that he ever sold his agricultural produce at the shop of plaintiff's brother Satnam Singh. Except his own oral statement, the defendant has not led any evidence in this regard. The defendant has not produced any J-Form regarding sale of agricultural produce by him at the shop of plaintiff's brother. The defendant has also not produced in evidence any record of Market Committee to prove the said fact. The defendant has also not examined any farmer who might be selling his produce at the shop of plaintiff's brother, to prove that the defendant had also been selling his produce at the shop of plaintiff's brother. It is, thus, apparent that the defendant has miserably failed to prove that he ever sold his produce at the shop of the plaintiff's brother or that defendant had any transaction with plaintiff's brother. Consequently, the entire version of the defendant falls to the ground. There is another significant circumstance against the defendant. The impugned agreement has been signed not only by the defendant but also by his son Joban Singh. However, the defendant, without any explanation, has even failed to examine his own son Joban Singh as witness to prove his version. Consequently, very strong adverse presumption arises against the defendant. It is also significant to notice that the defendant simply alleged that plaintiff's brother had obtained the defendant's signature on blank paper which was converted into agreement. The defendant did not even allege Regular Second Appeal No. 3771 of 2008 -4- that his signature had been obtained even in the register of Deed Writer against entry of the agreement. In fact the defendant did not even allege that plaintiff's brother had obtained defendant's signature in any register whatsoever. The defendant's plea is that his signatures were obtained only on blank paper. However, it has come in the evidence of the plaintiff that the defendant has also affixed his signatures in the register of Deed Writer against entry of the agreement. Thus, the defendant's version that his signatures were obtained on blank paper by plaintiff's brother cannot be accepted. In addition to the aforesaid, the agreement not only bears signatures of the defendant but also bears his thumb impression on each of the three sheets. Even entry in the register of Deed Writer has been thumb marked by defendant, in addition to defendant's signatures. The matter does not rest here. Entry in the register of Deed Writer has also been signed by the defendant's son who also signed the agreement. Moreover, the defendant's son made separate endorsement duly signed by him on the agreement as well as in the register of the Deed Writer that the amount of Rs 3,75,000/- had been paid in his presence. All these circumstances prove beyond doubt that the defendant had executed the impugned agreement and had received Rs 3,75,000/- from the plaintiff at the time of the agreement. Non-examination of defendant's son in view of the aforesaid endorsements and signatures further gives rise to the presumption that the agreement was duly executed by the defendant and he received Rs 3,75,000/- as earnest money from the plaintiff. Defendant's testimony in the witness box is also completely Regular Second Appeal No. 3771 of 2008 -5- unreliable. In cross-examination, the defendant denied his signatures on the impugned agreement. This circumstance would also completely belie the defence version pleaded in the written statement. The whole case of the defendant is that plaintiff's brother had obtained defendant's signatures on blank paper which was converted into agreement. However, if the impugned agreement did not bear defendant's signatures, the aforesaid plea raised by the defendant in the written statement is completely ruled out. Moreover, the defendant denied his signatures on his own written statement as well as Vakaltnama in favour of his counsel in the trial court. It would depict that defendant entered witness box with determination not to speak the truth. The defendant's testimony is thus completely un-worthy of credence and has been completely shattered and impeached in cross- examination. Except the defendant's self serving statement which is also completely incredible, there is no other evidence whatsoever in support of defendant's version. Consequently, there is no infirmity in the concurrent finding of the courts below against the defendant-appellant. The said finding is based on appreciation of evidence and cannot be said to be perverse or illegal so as to warrant interference in second appeal. On the contrary, the said finding is supported by cogent reasons recorded by both the courts below. Consequently, no question of law much less substantial question of law arises for determination in the instant second appeal. Learned counsel for the appellant vehemently contended that the plaintiff himself stated that his brother Satnam Singh was present in the court when the plaintiff was appearing in the witness box and had come to pursue the case. However, if on that date of hearing, plaintiff's brother Regular Second Appeal No. 3771 of 2008 -6- came with the plaintiff to the court, it would in no way support defendant's version. At the time of motion hearing, learned counsel for the defendant- appellant contended that the plaintiff admitted that the Commission Agents obtain signatures on blank papers from the persons who require money. However, this was factually incorrect contention because the plaintiff no where admitted this fact. On the other hand, plaintiff's witness Ram Lubhaya PW2 admitted this fact. However, it would in no way lead to the inference that the defendant's signature had been obtained on blank papers by the plaintiff's brother. It is particularly so because the defendant has not even proved that he ever sold his agricultural produce at the shop of plaintiff's brother. Learned counsel for the appellant at the time of motion hearing also contended that the plaintiff admitted that his brother was prosecuting the present suit. However, the plaintiff did not make any such admission except that on one date of hearing while the plaintiff was appearing in the witness box, his brother had also come to court to pursue the case. It does not mean that the plaintiff admitted that his brother was prosecuting the suit. Learned counsel for the appellant emphasized that the plaintiff admitted that he was not even present when the agreement was scribed. He did not even know the names of the witnesses. Even Ram Lubhaya PW2 did not know the name of the second witness. However, this aspect of the evidence has been appreciated by the courts below and even after taking into consideration the same, the courts below have concurrently found that execution of the agreement is duly proved. The said finding is justified by the evidence on record for the reasons recorded by the courts below as well as for the reasons recorded by this Court herein before. The Regular Second Appeal No. 3771 of 2008 -7- second witness of the agreement was none else but defendant's own son. However, the defendant did not even produce his own son as witness. In view of the aforesaid, I find no merit in the instant appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed. ( L.N. Mittal ) August 16, 2010 Judge 'dalbir'