RSA No.1271 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1271 of 2010 (O&M) Date of Decision: 26.03.2010 Jasvir Kaur ..Appellant Vs. Daljit Kaur & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.H.N.Mehtani, Advocate, for the appellant. --- Vinod K.Sharma,J. (Oral) Plaintiff/appellant filed this regular second appeal, against the judgment and decree dated 12.01.2010 passed by the learned courts below vide which suit for possession by way of specific performance of agreement to sell was ordered to be dismissed. Learned courts below recorded a finding of fact that the plaintiff/appellant, failed to prove the due execution of the agreement and his willingness to perform his part of the contract. Findings recorded by the learned lower appellate court in this regard reads as under:- “ I have considered the submissions made by the learned RSA No.1271 of 2010 2 counsel for the parties and I am of the considered view that no case is made out for interfering with the findings recorded by the learned trial court on issues No.1 & 5 because the agreement of sale is shown to be shrouded with suspicious circumstances. The plaintiff had no reason to cover a distance of 20 Ks. From village Saraud so as to come to Ahmedgarh for purchasing the stamp paper from PW 2 Tara Singh and to get agreement of sale typed out by typist despite the fact that Malerkotla, sub divisional head quarter is situated at a distance of only 5 Kms. From village Saraud and where service was of stamp vendors and deed writers are available. Incase the plaintiff had gone to Ahmedgarh and agreement of sale was got typed out in the court compound of the Tehsil complex, one really wonders to know as to why the same was not got scribed from a regular deed writer who incorporates the entry of the same in his register, where the signatures/thumb impressions of the parties as also of the witnesses are obtained so as to make the transaction very secure. 34. There is no reason to accept the deposition made by PW 1 Karnail Singh that Bhinder Singh had appended his L.T.I. Or, the agreement of sale because his right thumb was injured,although it is stated by the witness that Bhinder Singh was educated. In such a situation it would have been appropriate for the typist as also for Bhinder Singh to have got RSA No.1271 of 2010 3 noted on the agreement that because of this right thumb being injured, he was not in a position to put his signatures and for that reason he had put his thumb impression on the agreement, but no such note has been recorded on the agreement of sale. 35. It has appeared in the statement of PW 1 Karnail Singh that it was disclosed by Bhinder Singh that he had been selling his land for his treatment as Bhinder Singh was suffering from disease of cancer. It seems most unnatural that Bhinder Singh being patient of cancer, the plaintiff being his sister would get agreement of sale executed by him in her favour and not that she would come to the help of her brother at the time o f need. Therefore,it was very much imperative on the part of the plaintiff to have stepped into the witness box so as to answer suchlike questions as also with regard to the execution of agreement of sale to have been made by deceased Bhinder Singh in her favour and her non-examination cause the court to draw an adverse inference that had she appeared in the witness box, she would not have come forward to support her case. 36. Bhupinder Singh having died on 5.5.1992, no notice had been got served by the plaintiff upon the defendants calling upon them to execute the sale deed in her favour in pursuance of the agreement of sale and rather she, in order to create evidence in her favour, got affidavit Ex.P2 attested by Oath Commissioner, in which it is recited that she remained awaiting RSA No.1271 of 2010 4 her broth3er Bhinder Singh to turn up till the evening despite the fact that eh had already expired on5.5.1992, the affidavit having been sworn on 6.7.1992. This also goes to belie the case of the plaintiff. I, therefore, affirm the findings recorded by the learned trial Court on issues No.1 and 5.” Suit of the plaintiff/appellant was dismissed. Mr.H.N.Mehtani, learned counsel for the appellant contended that this appeal raises the following substantial questions of law for consideration by this court: i) Whether when the judgments and decrees of the learned courts below are based on misreading of evidence brought on record and incorrect appreciation of the legal propositions involved therein are they not liable to be set aside? ii) Whether when there is no dispute to a fact that a person who can sign can also append his thumb impression on a document and there is no legal bar in this regard as held by the learned Civil Judge and the other evidence produced by the plaintiff amply proved that Shri Bhinder Singh @ Bhupinder Singh while executing the agreement to sell Ex.P.1 put his left thumb impression thereupon have the learned courts below not erred in holding that the sale deed is shown to be shrouded with suspicious RSA No.1271 of 2010 5 circumstances and deciding Issue No.1 and 5 against the plaintiff/appellant? iii) Whether the learned courts below have not committed an error of law by taking into consideration the minor discrepancies in the statements of the witnesses produced by the plaintiff which normally arise when the witnesses are examined after sufficiently long time of the events, and thereby dismissing the suit filed by the plaintiff? iv) Whether when the additional Issue No.3-A was an important and substantial issue for determining the controversy involved in the suit and the said issue was independent from the issues No.1 and 5 has the learned Civil Judge not erred in law in not deciding the said issue and the learned first appellate court not erred in holding that the findings recorded by the learned Trial court on issues No.1 to 5 can be said to have covered Issue No.3- A particularly when not deciding the said issue caused prejudice to the rights of the plaintiff? In support of the substantial questions of law, the learned counsel for the appellant, contended that the plaintiff had examined the scribe as well as attesting witnesses, to prove the due execution of the agreement. In addition, the appellant had also filed an affidavit sworn before the Oath Commissioner, to prove his presence before the Sub RSA No.1271 of 2010 6 Registrar for registration of the sale deed to prove his willingness to perform his part of the contract. The contention of the learned counsel, therefore was that the judgment and decree passed by the learned courts below is the outcome of misreading of evidence. Learned counsel for the appellant also contended that valid reasons were given to prove affixation of RTI, because of the injury on the thumb of the executant of the agreement. The learned courts below, committed an error in taking it to be suspicious circumstance, to discard the agreement. It was the contention of the learned counsel for the appellant that the learned courts below failed to notice that minor discrepancies in statements of witnesses occurred due to lapse of time. Therefore, there could not be a basis for holding the agreement to be suspicious though duly proved. Finally it was contended that the learned trial court had given no finding on issue No.3-A, therefore, the judgment and decree passed by the learned courts below deserves to be set aside. However, on consideration, I find no force in the contentions raised by the learned counsel for the appellant. Findings of the learned lower appellate court referred to above would show that the learned courts below on appreciation of evidence and by cogent reasons have disbelieved the agreement. It is also well settled law that an affidavit sworn before the Oath Commissioner, cannot be used to prove willingness to perform the part of the contract, as it was incumbent upon the plaintiff/appellant to have appeared before the Sub Registrar, in RSA No.1271 of 2010 7 case she had gone to get the sale deed registered. Learned appellate court rightly held that by not deciding issue No.3-A, no prejudice was caused to the plaintiff/ appellant as Issue No.3-A was with regard to fraud and misrepresentation. Learned lower appellate court also rightly held that even if the issue was not proved it was for the plaintiff to prove the agreement and willingness to perform his part of the contract. Once the appellant failed to discharge the onus to prove the agreement and willingness to perform his part of the contract, no fault can be found with the judgment passed by the learned courts below, merely because issue No.3-A remained undecided. Findings recorded by the learned courts below cannot be said to be the outcome of misreading of evidence or perverse. This court in regular second appeal cannot interfere with the concurrent finding of fact arrived at on appreciation of evidence and pleadings. For the reasons stated, the substantial questions of law framed are answered against the appellant. Consequently, finding no merit in the appeal, it is dismissed in limine, but with no order as to costs. (Vinod K.Sharma) 26.03.2010 Judge rp