RSA No. 920 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 920 of 2009 Date of Decision: 5.10.2009 Gurdev and others ......Appellants Versus Mukhtiar Singh .......Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Naresh Kumar Manchanda, Advocate, for the appellants. HEMANT GUPTA, J. (Oral). The legal heirs of deceased-defendant Pritam Singh are in second appeal aggrieved against the judgment and decree passed by the Courts below in a suit for specific performance of agreement to sell dated 28.2.2000. Vide the aforesaid agreement, defendant-Pritam Singh agreed to sell the land measuring 4 kanals for a total sale consideration of Rs.85,000/-. A sum of Rs.70,000/- was received as earnest money and the sale deed was agreed to be executed on or before 27.6.2001. Since the defendant failed to execute the sale deed on the date fixed, RSA No. 920 of 2009 [2] the present suit for specific performance was filed on 18.8.2001, which has been decreed by the Courts below. The defendant, in the written statement, took up a plea that the plaintiff is a commission agent and the defendant used to sell his crop through the commission agency of the plaintiff. Subsequently, the defendant stopped the dealings with the plaintiff, as a result of which the plaintiff started making efforts to recover alleged amount from the defendant forcibly. The plaintiff in order to prove the aforesaid agreement appeared as his own witness as PW1 and examined PW2-Gurjan Singh and PW3-Gurmej Singh, the attesting witnesses of the agreement. PW4-Ran Parkash is an official from the office of the Sub Registrar, who has proved the presence of the plaintiff on the agreed date of execution of the sale deed. Defendant-Pritam Singh tendered his affidavit Exhibit DW1/A in evidence and also appeared as a witness as DW1. He deposed that the defendant was detained in Police Station and his thumb impressions were obtained on the blank papers. Both the Courts have found that the thumb impressions of the defendant were not obtained by force was not the plea set up in the written statement. Consequently, relying upon the evidence of the plaintiff, the suit was decreed. Learned counsel for the appellants has vehemently argued that the defendant is a co-sharer in the suit land, therefore, he was not competent to enter into an agreement to sell a specific portion. It is also RSA No. 920 of 2009 [3] contended that the plaintiff is a commission agent and taking benefit of the relationship, the plaintiff has obtained thumb impressions of Pritam Singh on which papers the plaintiff has manipulated the agreement to sell. It is contended that the appellants are ready and willing to refund the amount, the subject matter of the agreement. I have heard learned counsel for the appellants but do not find any merit in the present appeal. The defendant may be co-sharer in the suit land, but that does not deprive the defendant from entering into an agreement to sell his undivided share. Even if the agreement is in respect of specific khasra, still the sale is of a joint property. Such is the view taken by the Full Bench of this Court in Bhartu v. Ram Sarup, 1981 PLR 204, Therefore, the mere fact that the defendant is a co-sharer is not a ground on the basis of which the agreement to sell dated 28.6.2000 can be said to be ineffective or void. It is contradictory statement than the stand in teh written statement. The defendant has taken up a stand in the written statement that the plaintiff is a commission agent and he is to recover the amount due from the defendant, for which the plaintiff has prepared the agreement. However in evidence the stand of the defendant was that his thumb impressions were obtained with force in the police station. The statement in evidence completely belies the stand of the defendant taken in the written statement. It has been found by both the Courts below that the plaintiff RSA No. 920 of 2009 [4] has proved the due execution of the agreement which is evident from the statements of PW2 and PW3. The backside of the stamp paper shows the serial number of the stamp vendors Register. The thumb impressions of Pritam Singh also appear on the back side of the stamp paper. Both the Courts have appreciated the entire evidence to return a concurrent finding of fact that the agreement dated 28.6.2000 has been proved to be executed by Pritam Singh for the sale of the land measuring 4 kanals. Such finding is based upon proper appreciation of evidence. It could not be pointed out that any evidence has been misread or not taken into consideration. Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 5.10.2009 ds