RSA No.5064 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.5064 of 2010 (O & M) Date of Decision: 06.01.2011. Birham Pal and others .....Appellants Versus Niranjan Singh and another ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. G.S. Sandhawalia , Advocate for the appellants. L. N. MITTAL, J (ORAL) Defendant Nos.2 to 5, having remained unsuccessful in both the Courts below, are in second appeal. Respondent No.1-plaintiff-Niranjan Singh filed suit against proforma respondent No.2-Jagmal Singh (defendant No.1) and the appellants (defendant Nos.2 to 5) alleging that defendant No.1 agreed to sell the suit land measuring 30 kanals 1 marla being 34/434 share of 363 kanals 9 marlas land to the plaintiff for total consideration of Rs.8,90,000/- and received Rs.5,90,000/- as earnest money and executed impugned agreement dated 10.04.2001. Possession of 28 kanals 12 marlas land was delivered to the plaintiff at the spot at the time of agreement and the plaintiff is in possession thereof. Sale deed was to be executed upto 25.09.2001. Prior to it, defendant No.1 was to clear the bank loan. Plaintiff always remained ready and willing to perform his part of the contract, but defendant No.1 failed to do so. Plaintiff attended the office of Sub-Registrar on RSA No.5064 of 2010 (O & M) -2- 25.09.2001 to get the sale deed executed in terms of the agreement, but defendant No.1 did not turn up. On the contrary, after execution of the impugned agreement, defendant No.1 sold 4 kanals land out of the suit land to defendant Nos.2 to 5 (appellants) vide registered sale deed dated 05.07.2001. Defendant Nos.2 to 5 had knowledge of the impugned agreement dated 10.04.2001 in favour of plaintiff. The plaintiff had even asked defendants No.2 to 5 not to purchase any land out of the suit land, but still defendant Nos.2 to 5 secretly purchased 4 kanals land. The said sale is not binding on the plaintiff. Accordingly, plaintiff sought specific performance of the impugned agreement to sell along with ancillary reliefs. Defendant No.1 denied the plaint allegations. He alleged that he never entered into the impugned agreement with the plaintiff nor received any earnest money. The alleged agreement is result of fraud and misrepresentation and is forged and fabricated document. Defendant No.1 had agreed to sell 4 kanals land to one Sunehra and for cancellation of the said agreement, defendant No.1 was brought to Jagadhri by Sunehra, Briham Pal, Anguri and plaintiff-Niranjan Singh. Thumb impressions and signatures of defendant No.1 were obtained on blank stamp paper by the plaintiff who kept the said blank thumb marked and signed stamp paper with him. Agreement in favour of Sunehra was cancelled later on. The blank thumb marked and signed stamp paper might have been converted into the alleged agreement to sell by the plaintiff. Sale of 4 kanals land by defendant No.1 in favour of defendant Nos.2 to 5 was pleaded to be legal and valid. RSA No.5064 of 2010 (O & M) -3- Defendant Nos.2 to 5 also controverted the plaint allegations and claimed to be bona fide purchasers of 4 kanals land out of the suit land from defendant No.1. Various other pleas were also raised by the defendants. Learned Civil Judge (Senior Division), Jagadhri vide judgment and decree dated 29.01.2009 decreed the plaintiff's suit. First appeal preferred by defendants No.2 to 5 has been dismissed by learned Additional District Judge, Yamuna Nagar at Jagadhri vide judgment and decree dated 25.08.2010. Feeling aggrieved, defendants No.2 to 5 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Plaintiff has led sufficient evidence to prove his case. The plaintiff besides himself entering into the witness box, has examined Shakrudeen, an attesting witness of the agreement. The plaintiff also examined Manoj Kumar, Advocate, who drafted the agreement and got it typed and obtained thumb impressions and signatures of the parties and witnesses on the agreement. All of them have supported the plaintiff's case. Ram Dittan Babbar, finger print expert has proved thumb impressions of defendant No.1 on the impugned agreement. Defendant No.2 himself appeared in the witness box and stated according to his version. Defendant No.1 examined document writer, who proved sale deed in favour of defendant Nos.2 to 5 and two agreements by defendant No.1 in favour of Sunehra. Defendant No.1 also himself stepped into the witness box and stated according RSA No.5064 of 2010 (O & M) -4- to his version. Patwari proved revenue record. Baljit Singh DW claimed that defendant No.1 is in cultivating possession of the suit land except 4 kanals land sold to defendant Nos.2 to 5. Defendant Nos.2 to 5 have also examined document expert, who stated that disputed thumb impressions of defendant No.1 on the impugned agreement are not decipherable. Plaintiff's evidence is very cogent and reliable. Plaintiff has examined an Advocate, who drafted the agreement and obtained thumb impressions and signatures of the parties and the witnesses on the agreement, and an attesting witness of the agreement has also been examined. The plaintiff himself also stepped into the witness box. This evidence cannot be said to be rebutted by sole self-serving oral statement of defendant No.1. There is practically no other evidence to rebut the cogent evidence led by the plaintiff. Testimony of document expert examined by defendant Nos.2 to 5 that thumb impressions of defendant No.1 on the impugned agreement are not decipherable cannot be accepted in view of the testimony of finger print expert examined by the plaintiff. In addition to it, testimony of document expert examined by defendant Nos.2 to 5 is that thumb impressions Q1 to Q3 of defendant No.1 on the agreement are superimposed and thumb impression Q-4 is faint and blurred. Defendant No.1, however, alleged in his written statement that plaintiff had obtained his thumb impressions and signatures on a blank stamp paper. If it were so, the question of disputed thumb impressions of defendant No.1 on the impugned agreement being superimposed, faint or blurred would not arise. Plaintiff had genuine RSA No.5064 of 2010 (O & M) -5- thumb impressions of defendant No.1 on stamp paper, even according to version of defendant No.1. It is thus manifest that the impugned agreement bears thumb impressions of defendant No.1 and the said agreement was duly executed by him. It may be added that if defendant No.1 had been brought for the purpose of cancellation of agreement in favour of Sunehra as pleaded by defendant No.1, there was no occasion for the plaintiff, who had no concern with the said agreement in favour of Sunehra, to obtain thumb impressions and signatures of defendant No.1 on blank stamp paper. There was also no occasion for defendant No.1 to have affixed his thumb impressions and signatures on a blank stamp paper at the instance of the plaintiff. It is thus apparent that defendant No.1 has taken a false stand in order to defeat the rights of the plaintiff in the impugned agreement. It is also significant to notice that the suit has been decreed for 30 kanals 1 marla land out of which appellants have purchased only 4 kanals land. However, defendant No.1 has not challenged the judgment and decree of the trial Court by filing even first appeal. In other words, defendant No.1 has accepted the judgment and decree of the trial Court depicting that he very well knew that he had entered into the impugned agreement. If it had not been so, defendant No.1 would have been more aggrieved as he has been held to have received Rs.5,90,000/- as earnest money and he has been directed to execute sale deed of 30 kanals 1 marla land whereas interest of appellants is qua 4 kanals land only purchased by them for Rs.1,00,000/- only. The very fact that defendant No.1 RSA No.5064 of 2010 (O & M) -6- has not challenged the judgment and decree of the trial Court would also go a long way to demonstrate the genuineness of plaintiff's case. I may hasten to add that omission of defendant No.1 in not challenging the judgment and decree of the trial Court may not have any adverse bearing against defendant Nos.2 to 5. Defendant Nos.2 to 5/appellants also cannot be said to be bonafide purchasers of 4 kanals land out of the suit land because plaintiff, defendant No.1 as well as defendant Nos.2 to 5/appellants are all cosharers in the khewat of which suit land is a share. They also belong to the same village. Agreement in favour of plaintiff is dated 10.04.2001 whereas sale deed in favour of defendant Nos.2 to 5 is dated 05.07.2001 i.e 3 months after the agreement. Consequently, it cannot be said that defendant Nos.2 to 5 were not aware of the impugned agreement in favour of the plaintiff. In addition to it, agreement in favour of the plaintiff was at the rate of Rs.2,37,000/- per acre approximately whereas defendant Nos.2 to 5 purchased 4 kanals land at the rate of Rs.2,00,000/- per acre i.e at a lesser rate . It is thus manifest that defendant Nos.2 to 5 cannot be said to be bonafide purchasers of 4 kanals land out of the suit land. Learned counsel for the appellants vehemently contended that according to impugned agreement, possession of the suit land was also delivered to the plaintiff and, therefore, the agreement required compulsory registration, but it is unregistered and, therefore, cannot be used as evidence. Reliance in support of this contention has been placed on judgment of Allahabad High Court in the case of Prag Narayan Mook Badhir Vidalaya Samiti versus Hukam Singh RSA No.5064 of 2010 (O & M) -7- and others, 1997(1) Civil Court Cases 0458, judgment of this Court in the case of Gurbachan Singh versus Raghubir Singh, 2010(3) Civil Court Cases 731 (P & H) and judgment of Hon'ble Supreme Court in the case of K. B. Saha and sons Private Ltd. Versus Development Consultant Limited, (2008) 8 Supreme Court Cases 564. I have carefully considered this contention, but the same cannot be accepted. Sub-Section (1A) of Section 17 of the Registration Act, requiring compulsory registration of an agreement whereby possession is also transferred, came into force with effect from 24.09.2001 whereas the impugned agreement is dated 10.04.2001. The said provision was thus not in existence, when the impugned agreement was entered into and, therefore, the impugned agreement did not require compulsory registration. In addition to it, even as per Section 17(1A) of the Registration Act, if an agreement whereby possession is delivered is unregistered, it cannot be used as defence for the purpose of Section 53-A of the Transfer of Property Act. However, Section 17(1A) of the Registration Act does not make such an unregistered agreement completely invalid. Such an unregistered agreement can certainly be the basis of suit for specific performance of such agreement and at best same cannot be used as defence for the purpose of Section 53-A of the Transfer of Property Act. Judgments cited by counsel for the appellants are not applicable to the instant case. There is concurrent finding by both the Courts below in favour of the plaintiff. The said finding is based on proper appreciation of evidence and is fully justified by the evidence on RSA No.5064 of 2010 (O & M) -8- record and is supported by cogent reasons recorded in elaborate judgments of the Courts below. The said concurrent finding is not shown to be perverse or illegal so as to warrant interference in second appeal. The said finding is also not based on misreading or misappreciation of evidence which may warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is completely meritless and is accordingly dismissed in limine. 06.01.2011. ( L. N. MITTAL ) A. Kaundal JUDGE