RSA No.1647 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1647 of 2010 (O & M) Date of Decision: 11.11.2010. Chanchal Singh .....Appellant Versus Smt. Gurnam Kaur and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr.Puneet Jindal, Advocate for the appellant. L. N. MITTAL, J (ORAL) CM No.4913-C of 2010 Allowed as prayed for. CM No.4914-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 38 days in re-filing the appeal is condoned. CM No.4915-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 2 days in filing the appeal is condoned. CM No.4916-C of 2010 Deficient Court fee is said to have been affixed. The application is, therefore, allowed as prayed for. Main Appeal. Learned counsel for the appellant has made oral prayer that name of Guram Kaur, who is one of the three legal heirs of the RSA No.1647 of 2010 (O & M) -2- original defendant Amarjit Singh since deceased and who had also since died before the filing of the instant second appeal, be deleted from the array of the respondents. Prayer is allowed. Necessary correction in the memo of parties be made by the office. Chanchal Singh plaintiff, having failed in both the Courts below, has filed the instant second appeal. Appellant-plaintiff filed suit against Amarjit Singh- defendant for specific performance of the agreement to sell dated 03.08.1988 (wrongly mentioned as agreement dated 03.08.1990 in prayer paragraph of the plaint) alleging that Amarjit Singh defendant agreed to sell the suit land measuring 8 kanals for Rs.20,000/- to the plaintiff and received Rs.16,000/- as earnest money and delivered possession of the suit land to the plaintiff and executed agreement dated 03.08.1988. Sale deed was to be executed within two years. However, on 03.08.1990, by making endorsement on the back of agreement, date for execution of sale deed was extended upto 13.02.1991 at the instance of the defendant. Accordingly, on 13.02.1991, plaintiff went to the office of Sub-Registrar to get the sale deed executed in terms of the agreement, but the defendant did not turn up and committed breach of the agreement. Initially the defendant was proceeded ex parte and the suit was decreed ex parte on 23.01.1995 as stated by counsel for the appellant. In execution proceedings, respondents, who are legal representatives of defendant-Amarjit Singh, appeared and thereafter they got the ex parte judgment and decree set aside. Respondents contested the suit by controverting the plaint allegations. RSA No.1647 of 2010 (O & M) -3- Respondents pleaded that Amarjit Singh never agreed to sell the suit land nor received Rs.16,000/- as earnest money and nor executed the alleged agreement or endorsement of extension of date of execution of sale deed. It was pleaded that in fact Amarjit Singh borrowed Rs.3000/- from plaintiff Chanchal Singh on interest at the rate of 24% per annum, Amarjit Singh paid interest upto October, 1990 and also paid the principal amount, but thereafter dispute arose between the parties regarding enhanced rate of interest demanded by the plaintiff. Thereupon the plaintiff fabricated the agreement as well as the endorsement on its back. While advancing loan, the plaintiff obtained signatures of defendant-Amarjit Singh on blank paper which has been converted into the agreement whereas the alleged signature of Amarjit Singh on the endorsement has been forged and fabricated. The plaintiff was well-aware that Amarjit Singh had died before the filing of the suit, but in spite thereof, the plaintiff filed suit against Amarjit Singh since deceased and obtained ex parte judgment and decree by fraud. Various other pleas were also raised. Learned Civil Judge (Senior Division), Jalandhar vide judgment and decree dated 06.11.2006 dismissed the plaintiff's. First appeal preferred by the plaintiff stands dismissed by learned Additional District Judge, Jalandhar vide judgment and decree dated 14.05.2009. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that RSA No.1647 of 2010 (O & M) -4- signature of Amarjit Singh on the agreement stands admitted and, therefore, onus was on the respondents to prove that the agreement has been fabricated, but the respondents has failed to prove the same. I have carefully considered the aforesaid contention, but the same cannot be accepted. Endorsement on the back of the agreement regarding extension of date of sale deed has been found to be forged by both the Courts below. The said endorsement is not proved to be bearing signatures of defendant-Amarjit Singh. Aforesaid concurrent finding of the Courts below is based on appreciation of evidence. There is also concurrent finding by both the Courts below that the impugned agreement has been fabricated on blank paper bearing signatures. The said finding is also supported by cogent reasons. There was enough space at the bottom of the agreement for the signatures of Amarjit Singh to be affixed, but signatures of Amarjit Singh appear in the margin and not at the bottom which is the usual place for affixing the signatures. Moreover, according to the agreement, possession of the suit land was also delivered to the plaintiff at the time of agreement, but admittedly the plaintiff is not in possession of the suit land. The plaintiff did not even depose that possession of the suit land was delivered to him. It is thus apparent from this circumstance as well that the agreement in question has been fabricated. In addition to the aforesaid, the suit was filed on 25.09.1992 against Amarjit Singh, but he had already died before the filing of the suit. Consequently, the suit having been filed against a dead person was nullity and was no suit in the eyes of law. For this RSA No.1647 of 2010 (O & M) -5- added reason as well, the plaintiff-appellant has to fail. When legal representatives of the original defendant-Amarjit Singh filed application for setting aside the ex parte judgment and decree obtained earlier by the plaintiff against Amarjit Singh, suit for specific performance of the agreement or for alternative relief of recovery of earnest money and damages had already become hopelessly barred by limitation. Consequently, for this reason, the plaintiff appellant cannot succeed. Concurrent finding recorded by the Courts below to non- suit the plaintiff-appellant is fully justified by the evidence on record and is also supported by detailed reasons recorded by both the Courts below. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine. 11.11.2010. ( L. N. MITTAL ) A. Kaundal JUDGE