REGULAR SECOND APPEAL No.1046 OF 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1046 of 2011 DATE OF DECISION: 4 th MARCH, 2011 Shinder Kaur &others .... Appellants Versus Surjit Singh & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. S. K. Singla, Advocate for the appellants. * * * * L.N. MITTAL, J. (ORAL) Legal representatives of Gursewak Singh defendant No.2 (since deceased) have filed the instant second appeal having remained unsuccessful in both the courts below. Respondent No.1 and 2/plaintiffs filed suit against Sukhdev Singh defendant No.1 (since deceased and represented by his widow Ranjit Kaur respondent No.3 as his legal representative) and defendant No.2 Gursewak Singh represented by the appellants. Plaintiffs' case is that defendant No.1 was owner in possession of 40 Kanals 3 Marlas land including 35 Kanals 3 Marlas land in suit. Defendant No.1 agreed to sell the said land measuring 40 Kanals 3 Marlas to the plaintiffs for Rs.12,10,000/- and received Rs.4,10,000/- as earnest money and executed agreement dated 23.12.2003. Sale deed was to be executed upto 11.01.2005 (wrongly mentioned as 04.10.2006 in the judgments of the courts below as stated by counsel for the appellants). On REGULAR SECOND APPEAL No.1046 OF 2011 -2- 21.12.2004 defendant No.1 executed sale deed of 5 Kanals land (out of aforesaid land) in favour of plaintiffs, leaving the suit land measuring 35 Kanals 3 Marlas. Defendant No.1 entered into agreement dated 04.01.2005 to sell the suit land measuring 35 Kanals 3 Marlas to the plaintiffs for Rs.11,00,000/- and received Rs.10,00,000/- as earnest money and executed the aforesaid agreement. However, in order to defeat the rights of the plaintiffs, defendant No.1 sold 23 Kanals 9 Marlas land being 2/3rd share of 35 Kanals 3 Marlas land in suit to defendant No.2 vide sale deed dated 23.11.2005. The said sale deed as well as consequent mutation No.2924 are illegal and null and void and not binding on the plaintiffs. Accordingly plaintiffs filed suit for possession of the suit land measuring 35 Kanals 3 Marlas by specific performance of agreement dated 04.01.2005. Relief of permanent injunction was also claimed. Defendant No.1 contested the suit and broadly denied the plaint allegations. Defendant No.1 denied having entered into any agreement with the plaintiffs. The agreement was said to be result of fraud. Stamp paper for agreement dated 04.01.2005 was purchased on 21.12.2004 the date on which the sale deed of 5 Kanals land was executed by defendant No.1 in favour of the plaintiffs. Defendant No.1, however, admitted sale deed dated 21.12.2004 regarding 5 Kanals land in favour of the plaintiffs. Defendant No.1 also admitted sale deed dated 23.11.2005 of 23 Kanals 9 Marlas land being 2/3rd share of the suit land in favour of defendant No.2. Defendant No.2 also contested the suit and broadly denied the plaint allegations. It was pleaded that defendant No.2 has purchased 2/3rd share of the suit land from defendant No.1 vide registered sale deed dated 23.11.2005 and since then defendant No.2 is owner in possession thereof. REGULAR SECOND APPEAL No.1046 OF 2011 -3- Impugned agreement set up by the plaintiffs was pleaded to be forged and fabricated. Defendant No.2 also claimed to be bonafide purchaser of 2/3rd share of the suit land for consideration without notice of the impugned agreement. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Mansa vide judgment and decree dated 11.01.2010 decreed the plaintiffs' suit. First appeal preferred by defendant No.2 through his legal representatives has been dismissed by learned Additional District Judge, Mansa vide judgment and decree dated 19.01.2011. Feeling aggrieved, legal representatives of defendant No.2 have preferred instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants contended with vehemence that agreement dated 04.01.2005 is suspicious. It was pointed out that stamp papers for the said agreement were purchased on 21.12.2004 the date on which the sale deed of 5 Kanals land was executed by defendant No.1 in favour of the plaintiffs. It was also pointed out that under first agreement dated 23.12.2003, sale deed was to be executed upto 11.01.2005 and, therefore, there was no occasion for fresh agreement on 04.01.2005. It was also pointed out that defendant No.1 filed written statement denying the impugned agreement. I have carefully considered aforesaid contentions which on first blush appear to be very forceful but in fact, the said contentions are completely meritless. Defendant No.1 in the written statement pleaded the impugned agreement to be result of fraud practised by the plaintiffs on defendant No.1. However there is not even iota of evidence on record to REGULAR SECOND APPEAL No.1046 OF 2011 -4- prove the alleged fraud. Even particulars of the alleged fraud were not pleaded. On the contrary, plaintiffs have proved both the agreements i.e. agreement dated 23.12.2003 Exhibit P-2 and agreement dated 04.01.2005 Exhibit P-3. Plaintiff No.1 Surjit Singh himself appeared in the witness box and stated according to the plaint allegations. Iqbal Singh PW2 is attesting witness of agreement dated 23.12.2003 Exhibit P-2 and proved the same. Bikker Singh PW-3 is attesting witness of agreement dated 04.01.2005 Exhibit P-3 and proved the same. The plaintiffs also examined PW-4 Anil Kumar Gupta Hand Writing and Finger Print Expert, who proved thumb impressions of defendant No.1 on the impugned agreement. This evidence is cogent and reliable and also stands unrebutted. Science of finger print comparison is perfect science. No evidence to the contrary has been led. It is thus proved that the impugned agreement has thumb impressions of defendant No.1. However, there is not even iota of evidence on record to prove the alleged fraud. The said agreement has also been proved by attesting witness Bikker Singh PW-3, in addition to the testimony of the plaintiff No.1 himself. First agreement dated 23.012.2003 Exhibit P-2 has also been proved by plaintiff No.1 and one attesting witness Iqbal Singh PW-2. Thus both the agreements have been proved. Agreement dated 04.01.2005 is not suspicious at all. On the contrary, Ranjit Kaur widow and legal representative of defendant No.1 while appearing in the witness box as DW-1 has admitted the execution of the impugned agreement. It is thus manifest that both the agreements including later agreement dated 04.01.2005 have been duly proved by the plaintiffs. There is practically no evidence to depict that the said agreement was not executed by defendant No.1. Ranjit Kaur also admitted receipt of earnest money by defendant REGULAR SECOND APPEAL No.1046 OF 2011 -5- No.1 in her presence pursuant to both the agreements. Contention of defendant No.2 that he is bonafide purchaser of the suit land is falsified by his own evidence. His mother Shinder Kaur (one of his legal representatives) appeared as DW-2 and in cross-examination, she has admitted that defendant No.2 had knowledge of the agreement while purchasing 2/3rd share of the suit land from defendant No1. She deposed that defendant No.1 had disclosed at the time of sale deed dated 23.11.2005 that he had not received any earnest money from the plaintiffs and the agreement was got executed from him (defendant No.1) by fraud. It would mean that factum of the impugned agreement was disclosed by defendant No.1 to defendant No.2 at the time of sale deed dated 23.11.2005 although defendant No.1 alleged the said agreement to be result of fraud. It would clearly depict that defendant No.2 had knowledge of the impugned agreement while purchasing 2/3rd share of the suit land from the defendant No.1. Consequently defendant No.2 could not be said to be bonafide purchaser of the suit land. Shinder Kaur stated that they had not enquired from the plaintiffs regarding the agreements executed by defendant No.1 in their favour. If defendant No.2 had been bonafide purchaser of the suit land, he would have definitely enquired about the impugned agreement from the plaintiffs when the said agreement came to his knowledge at the time of sale deed. It is also significant to notice that sale deed in favour of defendant No.2 for 2/3rd share of the suit land is for Rs.5,28,000/-. However, suit land measuring 35 Kanals 5 Marlas had been agreed to be sold to the plaintiffs for Rs.11,00,000/-. Proportionate sale consideration for 2/3rd share of the suit land according to impugned agreement would come to Rs.7,33,333/-, but the defendant No.2 purchased it for Rs.5,28,000/- only. It would also REGULAR SECOND APPEAL No.1046 OF 2011 -6- depict that defendant No.2 was not bonafide purchaser of the suit land. In fact there is practically no evidence to depict that defendant No.2 was bonafide purchaser of the suit land. Statement of Shinder Kaur mother of defendant No.2 in this regard has been completely shattered and impeached in cross-examination and there is no other evidence to prove this fact pleaded by defendant No.2. Concurrent finding recorded by both the courts below in favour of plaintiffs and against the defendants is thus fully justified by the evidence on record and does not suffer from any perversity or illegality so as to warrant interference in second appeal. The said finding is supported by reasons and is not based on misreading or misappreciation of the evidence on record. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 4th March, 2011 'raj'