RSA No.3109 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 24.8.2009 R.S.A.No. 3109 of 2009 (O&M) Banta and others ......Appellants Versus Jarnail Singh and another .......Respondents R.S.A.No. 3110 of 2009 (O&M) Surjit Singh ......Appellant Versus Jarnail Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.C.Chhabra, Advocate, for the appellants. **** SABINA, J. Vide this judgment, RSA Nos. 3109 and 3110 of 2009 would be disposed of as these have arisen out of same civil suit. Plaintiff Jarnail Singh filed a suit for possession by way of specific performance of the agreement to sell dated 30.3.2001, which RSA No.3109 of 2009 (O&M) 2 was decreed by the Civil Judge (Jr.Divn.) Ferozepur vide judgment and decree dated 12.1.2008. Aggrieved by the same, two appeals were filed: first bearing No.80 of 29.2.2008 filed on behalf of defendants No.2 to 4 and second appeal/cross objection bearing No.64 of 10.6.2009 filed on behalf of Surjit Singh-defendant No.1/Objector. The Additional District Judge, Ferozepur vide judgment and decree dated 11.6.2009 dismissed the appeal as well as the objection petition and affirmed the findings of the trial Court. Hence, the present appeals by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 4 of its judgment, are as under:- “2. The factual matrix of the plaintiff's case, as reflected in the plaint in brief, is that defendant No.1 Surjit Singh, being owner in possession of land measuring 20 kanals 6 marlas, fully detailed and described in the head note of the plaint, agreed to sell the same to the plaintiff at the rate of Rs.70,000/- per acre and executed an agreement to sell dated 30.3.2001 in favour of the plaintiff. At the time of execution of the said agreement to sell defendant No.1 received Rs.1,15,000/- as earnest money from the plaintiff. The sale deed was agreed to be executed on or before 28.11.2001 after receiving balance sale consideration. Possession of the suit land was agreed to be delivered to the plaintiff at the time of RSA No.3109 of 2009 (O&M) 3 execution and registration of the sale deed. Since the date of agreement to sell the plaintiff has been and is still ready and willing to perform his part of the agreement. On 18.10.2001 the plaintiff came to know that defendant No.2 is going to alienate the suit land in favour of defendants No. 2 to 4/appellants; whereupon, he approached them and show the original agreement to sell dated 30.3.2001 and requested them not to purchase the suit land, but they did not accede to his request and ultimately, purchased the suit land vide sale deed dated 10.10.2001 despite prior knowledge and notice of the agreement to sell dated 30.3.2001 executed by defendant No.1 in favour of the plaintiff. The said sale deed dated 10.10.2001 is alleged to be illegal, null and void and is having no effect on the rights of the plaintiff. The plaintiff requested the defendants to admit his claim, but to no effect, hence, the suit. 3. Upon notice, defendant No.1 filed separate written statement and contested the suit primarily on the ground that the suit is not maintainable. On merits, he asserted that the alleged agreement is a forged and fabricated document. In fact, a few days prior to 30.3.2001 the plaintiff along with some bad elements forcibly entered the house of defendant No.1, caused RSA No.3109 of 2009 (O&M) 4 harm to his house-hold articles and obtained his thumb impression on some blank papers. He informed the police but no action was taken against the plaintiff. Due to fear he left the village and got published news to this effect in the newspaper 'Aaj Di Awaj' dated 9.6.2002. The defendant No.1 further asserted that the plaintiff has forged and fabricated the alleged agreement on the thumb marked blank stamp paper. Actually, defendant No.1 has already executed an agreement to sell dated 8.11.2000 in favour of Desa Singh defendant No.1 and executed sale deed qua the suit land in favour of defendants No.2 to 4, who are bona-fide purchaser of the suit land. The other averments of the plaint were vehemently denied and defendant No.1 prayed for dismissal of the suit. 4. Defendants No.2 to 4 filed their separate written statement and contested the suit on the same line of defendant No.1 and asserted that they are bona fide purchaser of the suit land.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether defendant No.1 executed an agreement of sale on 30.3.2001 in favour of the plaintiff after adjusting Rs.1,15,000/- on account of earnest RSA No.3109 of 2009 (O&M) 5 money as alleged? OPP 2. Whether the plaintiff remained ready and willing and still ready and willing to perform his part of the contract? OPP 3. If issues No.1 and 2 are proved, whether the plaintiff is entitled to specific performance of agreement of sale? OPP 4. Whether sale deed dated 10.10.2001 executed by defendant No.1 in favour of defendants No. 2 to 4 is liable to be set aside, as alleged? OPP 5. Whether the agreement of sale dated 30.3.2001 executed by defendant No.1 in favour of the plaintiff is result of fraud and is a false document, as alleged? OPD 6. Whether defendants No. 2 to 4 are bonafide purchaser of the suit land for valuable consideration? OPD 7. Whether the suit is not maintainable in the present form? OPD 8. Whether the plaintiff has concealed the material facts from the court, as alleged? OPD 9. Relief. ” After hearing learned counsel for the appellants, I am of the opinion that the present appeals deserve to be dismissed. RSA No.3109 of 2009 (O&M) 6 The plaintiff had filed a suit for specific performance of agreement to sell dated 30.3.2001. In order to prove his case, the plaintiff examined PW-1 Prem Singh and PW-2 Dalip Singh, attesting witnesses of the agreement to sell. The plaintiff himself appeared in the witness box as PW-3 and examined the stamp vendor PW-4 Surinder Kumar to prove the entry regarding sale of stamp paper PW4/B. The said witnesses proved the due execution of the agreement to sell executed in favour of the plaintiff by defendant No.1. As per the same, defendant No.1 had agreed to sell the land in question to the plaintiff for a consideration of Rs.1,77,625/-. Out of the said amount Rs.1,15,000/- were paid as earnest money at the time of execution of the agreement to sell. The sale deed was to be executed on or before 10.10.2001. The case of the defendants, on the other hand is that, in fact, defendant No.1 had executed an agreement to sell in favour of defendants No. 2 to 4 on 8.11.2000 i.e. much prior to the alleged agreement to sell in favour of the plaintiff and defendant No.1 had executed a sale deed in favour of defendant Nos. 2 to 4 on 10.10.2001. Learned counsel for the appellants has submitted that the suit of the plaintiff was liable to be dismissed as the sale deed in favour of defendants No. 2 to 4 was based on a prior agreement to sell. The argument raised by learned counsel for the appellants appears to be sound on the face of it but when examined carefully in RSA No.3109 of 2009 (O&M) 7 view of the evidence on record, the same has no force. Both the Courts below, after appreciating the evidence on record, have held that the agreement to sell in favour of the plaintiff stood duly proved, whereas, the agreement to sell alleged to have been executed by defendant No.1 in favour of defendants No. 2 to 4 was a forged and fabricated document. Defendants No. 2 to 4 had got the sale deed executed on 10.10.2001 despite knowledge of the fact that defendant No.1 had executed an agreement to sell in favour of the plaintiff. A perusal of the statement of defendant No.1 placed on record reveals that he had admitted that at the time of execution of sale deed by him in favour of defendants No. 2 to 4, the prior agreement allegedly executed on 8.11.2000 was not in existence and had been prepared by all the defendants in connivance with each other. Moreover, a perusal of the sale deed shown by the learned counsel for the appellants, during the course of arguments, reveals that the alleged agreement to sell dated 8.11.2000 does not find mention in the said sale deed and this also leads to the inference that the agreement to sell dated 8.11.2000 is a forged and fabricated document. In these circumstances, the Courts below rightly held that the agreement to sell dated 8.11.2000 was a forged and fabricated document. So far as the plea of defendants No. 2 to 4 to the effect that they are bonafide purchasers of the suit property is concerned, the same has also been rightly dis-believed by the Courts below. It RSA No.3109 of 2009 (O&M) 8 is the case of the plaintiff that he had approached defendants No. 2 to 4 on 8.10.2001 and had shown them the agreement to sell in his favour but even then the sale deed dated 10.10.2001 had been got executed by defendants No. 2 to 4 in their favour. Defendant No.1 in his statement has admitted that village Hazara is a small village having 25/30 houses. Defendants No. 2 to 4 are also resident of the said village. Had they made proper enquiry they would have found out that defendant No.1 had executed an agreement to sell in favour of plaintiff. No substantial question of law arises in these regular second appeals. Accordingly, the same are dismissed. (SABINA) JUDGE August 24,2009 anita