RSA No.3715 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3715 of 2010 Date of Decision: 14.09.2010. Pushap Lata .……Appellant Versus Amar Nath ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. S. S. Rangi, Advocate for the appellant. L. N. MITTAL, J (ORAL) By this common judgment, I am disposing of two appeals i.e RSA No.3715 of 2010 and RSA No.3716 of 2010 both titled as Pushap Lata versus Amar Nath. These appeals have arisen out of two suits. One suit was filed by respondent Amar Nath against Parsini (since deceased and represented by appellant-Pushap Lata as legal representative) for specific performance of agreement to sell dated 16.08.1995 whereas the other suit was filed by Parsini (since deceased and represented by appellant-Pushap Lata as legal representative) against respondent Amar Nath seeking declaration that the aforesaid agreement is result of fraud and misrepresentation and is illegal, invalid, without consideration, null and void. Permanent injunction and mandatory injunction were also claimed by Parsini in her suit. Case of respondent-Amar Nath is that Parsini vide agreement dated 16.08.1995 agreed to sell the suit land measuring 4 RSA No.3715 of 2010 -2- Bighas 16 ½ Biswas to respondent Amar Nath for Rs.1,25,000/- and received Rs.1,15,000/- as earnest money and delivered possession of the suit land to the respondent. Sale deed was agreed to be executed on 15.12.1997 on payment of balance sale price of Rs.10,000/-. Respondent always remained ready and willing to perform his part of the contract and even attended the office of Sub- Registrar on 15.12.1997 for getting the sale deed executed and registered in terms of the agreement, but Parsini did not turn up and committed breach of the agreement. On the other hand, version of Parsini is that she had brought up respondent-Amar Nath as her son after death of his mother while he was aged about 2 months only and they formed Joint Hindu Family. It was also pleaded that impugned agreement is result of fraud and misrepresentation and her thumb impressions thereon were obtained on the pretext of getting her old age pension. Learned Civil Judge (Junior Division), Rajpura vide judgment and decree dated 18.02.2005 decreed the suit filed by Amar Nath for specific performance of the agreement and vide separate judgment and decree dated 18.02.2005 dismissed the suit filed by Parsini. Two separate first appeals were preferred by Parsini through her legal representative Pushap Lata against judgments and decrees of the trial Court in the two suits. However, both the said appeals have been dismissed by learned Additional District Judge, Patiala vide separate judgments and decrees dated 05.05.2010. Feeling aggrieved, the instant two second appeals have been preferred. I have heard learned counsel for the appellant and RSA No.3715 of 2010 -3- perused the case file. Learned counsel for the appellant vehemently contended that the impugned agreement is result of fraud and misrepresentation. It was contended that Parsini was aged about 90- 95 years and she reposed confidence in the respondent, who had been brought up by her just like her son. It was also contended that there was no reason for fixing date for sale deed more than 2 years after the execution of the agreement. It was also contended that appellant in her suit examined Dr. Sanjiv Aggarwal regarding her physical condition. It was also contended that two stamp papers were sold by the stamp vendor at same serial No.4522 i.e one in the name of Parsini for the impugned agreement and the other in the name of one Jaspal Singh, as depicted by copy of stamp vendor's register Mark PX. I have carefully considered the aforesaid contentions, but find no merit therein. All these contentions relate to appreciation of evidence. However, both the lower Courts have appreciated the evidence and have come to concurrent finding against the appellant and in favour of the respondent. The said finding is not shown to be perverse or illegal so as to warrant interference in second appeal. The aforesaid contentions do not give rise to any substantial question of law for determination in the instant second appeals. It may be added with significance that the respondent got possession of the suit land at the time of agreement and, therefore, he was in no hurry to get the sale deed executed. Similarly Parsini got 92% of the sale consideration at the time of agreement and, therefore, she was also in no hurry to execute the sale deed. RSA No.3715 of 2010 -4- Moreover, the respondent should have been cross-examined as to why such long date was fixed for execution of the sale deed and it was the respondent Amar Nath, who could explain the same. However, learned counsel for the appellant is unable to point out that respondent-Amar Nath was cross-examined on this aspect and if so what was the explanation furnished by him. In addition to the aforesaid, it is significant to notice that respondent Amar Nath is admittedly in possession of the suit land. Consequently, it cannot be said that the agreement was obtained by fraud. On the contrary, delivery of possession of the suit land to respondent-Amar Nath would depict that the agreement was in fact entered into by Parsini with respondent. It is also significant to notice that according to version of Parsini, she was residing with respondent-Amar nath and they formed Joint Hindu Family. However, witnesses of Parsini examined in the suit instituted by her have stated that Parsini was residing with her daughter at Rajpura for the last 10-12 years whereas the respondent is resident in village Lochma. It is thus apparent that Parsini was not residing with the respondent and consequently the question of misusing the faith allegedly reposed by Parsini in the respondent did not arise. As regards examination of Dr. Sanjiv Aggarwal as witness, learned counsel for the appellant contended that the said witness examined Parsini on 16.11.1999 and found her physically not fit. However, the agreement in question was executed on 16.08.1995 and, therefore, physical condition of Parsini on 16.11.1999 i.e more than 4 years after the execution of the agreement is completely RSA No.3715 of 2010 -5- irrelevant to dislodge the agreement or to create any suspicion about the agreement. It would also not be out of place to notice that conduct of Parsini and her daughter Tara Wati has also been mala fide. Tara Wati filed a suit against Parsini for transfer of the suit land in favour of Tara Wati by consent decree. However, respondent Amar Nath on coming to know of the same moved application for becoming party to the said suit and thereupon the said suit was withdrawn. It depicts the mala fide conduct of Parsini and her daughter Tara Wati. Even thereafter Parsini threatened to alienate the suit land and the respondent had to file suit for permanent injunction against Parsini because by then, date stipulated in the agreement for execution of the sale deed had not arrived and, therefore, suit for specific performance of the agreement could not be filed at that time. Thus conduct of Parsini was mala fide. Parsini in her written statement as well as in her suit admitted her thumb impressions on the impugned agreement. Even finger print expert examined by her as witness reported that thumb impressions on the agreement were of Parsini. Consequently, very heavy onus lay on Parsini to prove alleged fraud just like a criminal charge. However, Parsini has miserably failed to discharge the said onus. It has also to be noticed with significance that admittedly respondent-Amar Nath is in possession of the suit land. Parsini in her suit sought declaration and permanent injunction only and did not seek the relief of possession of the RSA No.3715 of 2010 -6- suit land. Consequently, suit filed by Parsini is not maintainable in view of mandatory provision of proviso to Section 34 of the Specific Relief Act, 1963. As regards copy of register of stamp vendor Mark PX, the same has not been proved by Parsini by examining the stamp vendor. Even if the stamp vendor had died as contended by counsel for the appellant, even then somebody else could be examined to prove the entries in the register of the stamp vendor so that the respondent could get opportunity to explain the alleged discrepancy. Moreover, if the stamp vendor committed a clerical error in marking entries in register by assigning same serial number to two entries, the respondent could not be blamed for the same. On the other hand, entry of sale of stamp papers for the impugned agreement to Parsini purports to bear her thumb impression as per certified copy of Mark PX shown by counsel for the appellant. Consequently, this document which has not even been proved and, therefore, cannot be taken into consideration, also does not create any doubt about the version of the respondent even if this document is taken into consideration. For the reasons aforesaid, I find no merit in the instant second appeals. Both the appeals are accordingly dismissed in limine. 14.09.2010. ( L. N. MITTAL ) A. Kaundal JUDGE