RSA No.1850 of 2007 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1850 of 2007 (O&M) Date of decision: 12.8.2010 Smt. Sheela and others ......Appellant(s) Versus Balwinder Singh and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. A.P. Bhandari, Advocate for the appellants. Mr. Manish Kumar Singla, Advocate and Mr. Dinesh Kumar Singla, Advocate for the respondents. Rakesh Kumar Garg, J. The appellants are the legal heirs of Ishwar Singh, plaintiff, who filed the present suit for possession by way of specific performance of agreement to sell in question against defendant-Trilok Singh alleging therein that the defendant entered into an agreement to sell with Ishwar Singh of the suit property for a consideration of Rs.95,000/- per acre and received an earnest amount of Rs.85,000/- in the presence of witnesses. The last date for executing the sale deed was stipulated as 2.4.1992 which was later on extended upto 2.6.1992. It was further pleaded that Ishwar Singh was present in the office of Sub Registrar, Narwana with the balance payment and other expenses on the stipulated date but the defendant failed to turn up and thus, the plaintiffs were entitled to the decree as prayed. The suit was contested by the respondents denying the execution of the agreement to sell in question. Receipt of earnest money was also denied and it was stated that the plaintiff had prepared the document with the connivance of witnesses, who were his own men. The Courts below on appreciation of evidence have recorded a RSA No.1850 of 2007 (O&M) 2 finding of fact that the appellants failed to prove the agreement to sell in question and dismissed the suit. Challenging the judgment and decrees of the Courts below, learned counsel for the appellants has vehemently argued that findings of the Courts below are perverse as the plaintiff-appellants had successfully proved on record that the agreement in question was executed in accordance with law and there was nothing on record to support the plea taken by the defendant-respondents in their written statement. On the other hand, learned counsel for the respondents has supported the impugned judgment and decrees and has stated that no interference is warranted in the concurrent finding of fact recorded by the Courts below. I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. The Lower Appellate Court while dismissing the appeal observed as under: “From a perusal of the evidence on record led on behalf of the plaintiffs/appellants it reveals that the plaintiffs/appellants have miserably failed to prove the execution of the agreement to sell and the well reasoned findings of learned lower court under issue No.1 and 2 cannot be set aside on any of the grounds taken up by the plaintiffs/appellants. The agreement in question i.e. Ex.P1 was allegedly drafted by Shri Zile Singh Sheokand, Advocate and as per the case of the plaintiffs/appellants the defendant Trilok Singh had received a sum of Rs.85,000/- as earnest RSA No.1850 of 2007 (O&M) 3 money at the time of execution of the agreement to sell on 10.2.1992 and thereafter the date of execution and registration of the sale deed was extended from 2.4.1992 to 2.6.1992 and a writing Ex.P2 to that extent was written on back of the aforesaid agreement. As per the case of the plaintiffs this writing was also drafted by Shri Zile Singh Sheokand, Advocate. Shri Zile Singh Sheokand, Advocate while appearing as PW3 has admitted that he had drafted the agreement to sell Ex.P1 and the writing of extension of date Ex.P2 but he has not deposed even a single word which could show that any amount of earnest money was paid by the predecessor in interest of the plaintiffs namely Ishwar Singh to the defendant Trilok Singh. However, in his cross-examination he deposed that the aforesaid documents were got typed by his clerk and the same were not typed in his presence. He has categorically deposed that the payment of earnest money of Rs.85,000/- and Rs.50,000/- were not made in his presence. Further, he stated that except Ishwar Singh he did not know any other witness or the other party. He has further deposed that after executing the agreement Ex.P1 and the writing Ex.P2 he had not read over and explained the same either to the parties or to the witnesses. He further deposed that the parties and witnesses RSA No.1850 of 2007 (O&M) 4 had not put their signatures/thumb impressions in his presence. Thus, from the testimony of this witness alone who is scribe of the agreement in question and writing on the back a doubt is created as to execution of the aforesaid documents. Further Om Parkash son of Kapur Chand who is a attesting witness of the agreement to sell has also not deposed even a single word which could prove the payment of earnest money under the agreement Ex.P1 or under the writing Ex.P2 on its back. He further demolished the case of the plaintiffs when he deposed that the agreement in question was typed in the presence of Sushil Kumar, Advocate who is having his shop at railway road. Thus, his statement is contrary to the statement of the aforesaid Shri Zile Singh, Advocate (PW3) who has deposed that the agreement was got typed in the court premises. Still further Gurdial son of Puran Ram, the other attesting witness of the aforesaid documents, Ex.P1 and Ex.P2 while appearing as PW5 further created a doubt when he deposed that under the agreement Ex.P1 a sum of Rs.35,000/- were received by Trilok Chand and in fact Rs.85,000/- were also received by Trilok Singh out of which Rs.12,000/- paid to him at Kaithal and at the time of extension of the date for execution and registration Rs.50,000/- were paid to him and prior RSA No.1850 of 2007 (O&M) 5 to that a sum of Rs.35,000/- and Rs.12,000/- were paid to him and he does not know anything beyond that. Thus, his statement is altogether contrary on the aspect of the payment of earnest money which has further raised a doubt in the execution of the agreement to sell and the subsequent writing for extension of the date. He further gave a contrary statement with regard to the place of typing of the agreement Ex.P1 when he deposed that the same was typed in the Tehsil premises. However, he did not disclose the name of the typist. As per this witness several typists were sitting in the tehsil premises. This way he categorically deposed that the payment was made in the presence of Zile Singh, Advocate and in his presence a sum of Rs.35,000/- were paid, as Trilok Chand had already received Rs.12,000/- as has been mentioned above, Zile Singh, Advocate while appearing as PW3 has categorically deposed that no payment of any amount was made in his presence. There is still another attesting witness on the agreement to sell Ex.P1 and the writing of extension of date of Ex.P2 namely Mahender son of Jai Singh who while appearing as PW6 deposed that the documents were got written in old tehsil premises and the payment of earnest money was made in the presence of Zile Singh, Advocate. As has been RSA No.1850 of 2007 (O&M) 6 discussed above Zile Singh, Advocate (PW3) has deposed that he had not read over and explained the agreement to sell both of the parties or to the witnesses but this witness PW6 Mahender son of Jai Singh has deposed that the same was read over and explained to them. As has been discussed above Zile Singh, Advocate while appearing as PW3 has deposed that he has got typed the agreement Ex.P1 and writing Ex.P2 through his clerk but this witness Mahender son of Jai Singh while appearing as PW8 has deposed that the same were typed by Zile Singh himself. The execution and agreement Ex.P1 and the writing of extension Ex.P2 is doubtful because in the agreement Ex.P1 the aforesaid attesting witness Mahender Singh has signed as 'Mahender' whereas in the writing Ex.P2 his signatures appears as 'Mahender Singh'. Whereas the aforesaid witness Mahender son of Jai Singh (PW8) has categorically deposed that he never sign as Mahender Singh and he totally denied his signatures Mahender Singh on Ex.P2. Thus, there seems to be some manipulations in the writing Ex.P2 which has further created a doubt and the learned lower court has rightly not placed reliance on the aforesaid documents Ex.P1 and Ex.P2. Furthermore as per the plaintiffs, the defendant Trilok Singh had put his left hand thumb RSA No.1850 of 2007 (O&M) 7 impression on the agreement but the witness of the plaintiffs namely Deepak Jain (PW2) the hand writing and finger print expert deposed that the thumb impression marked as Q1 on the agreement Ex.P1 was that of right hand of Trilok Singh. Thus, this fact further raises a doubt in the version of the plaintiffs. It is well established principle of law that mere proof of signature on a document does not amount to actually proving the document. Execution is a complete series of making a document which has been written out and read over and understanding and reading and delivering in the presence of witnesses and does not consistent of only signing a name on a blank sheet of paper. A reference in this regard can be made to a decision in Smt. Ahalya Bai Vs. Gangapur Shankaraiah & others 1997(3) LJR 302 reliance on which has been placed by learned counsel for the respondent.” In view of the aforesaid observations which could not be disputed by the learned counsel for the appellants, it cannot be held that findings of the Courts below are perverse. In this view of the matter, I find no merit in this appeal. No substantial question of law arises. Dismissed. August 12, 2010 (RAKESH KUMAR GARG) ps JUDGE RSA No.1850 of 2007 (O&M) 8