R.S.A. No.2039 of 2007. (1) ***** In the High Court of Punjab & Haryana at Chandigarh. Date of decision : 30.7.2007. Parminder Singh son of Joginder Singh, resident of Village Vachhoa, Tehsil Ajnala, District Amritsar, at present resident of House No.3333, Sector 40-D, Chandigarh. .... Appellant. vs Gurpreet Singh son of Joginder Singh, resident of Village Vachhoa, Tehsil Ajnala, District Amritsar. .... Respondent. Coram Hon'ble Mr. Justice R.S.Madan. Present: Mr.Jagdish Rai Mittal,Senior Advocate with Mr.Krishan Kumar,Advocate,for the appellant. R.S.Madan, J. This is defendant's regular second appeal arising out of the judgment and decree dated 21.3.2007, passed by the Additional District Judge (Fast Track Court), Amritsar, vide which he dismissed the appeal of the defendant and upheld the judgment and decree dated 12.8.2003 of the Additional Civil Judge (Senior Division), Ajnala. The plaintiff has filed the suit for specific performance of the agreement to sell dated 2.7.1995, executed by the defendant in his favour in respect of land measuring 84 kanals, as detailed in the head note of the plaint, with consequential relief of permanent injunction restraining the defendant from interfering into his possession over the suit land or alienating the same in any manner. The case of the plaintiff as disclosed in the plaint is that he as R.S.A. No.2039 of 2007. (2) ***** well as defendant along with their sister Maninder Kaur are co-shares in the joint khata of land measuring 177 kanals 10 marlas. The defendant had 55/118 share in the entire khata, which comes to 84 kanals of land and he entered into an agreement to sell it on 2.7.1995 for a total sale consideration of Rs.5 lacs. Out of the total sale consideration an amount of Rs.4 lacs was to be paid as earnest money at the time of agreement and balance amount was to be paid at the time of the execution of the sale deed and date of execution of the sale deed was fixed upto 13.12.1995. It is the case of the plaintiff that he has always been ready and willing to get the sale deed executed but the defendant has been postponing the execution of the sale- deed. It was on 13.12.1995 that he went to the office of Sub-Registrar, Ajnala, and got his presence marked and remained present there throughout the day but the defendant did not turn up to execute the sale deed. He even contracted the defendant to execute the sale deed but he failed to execute the same, which necessitated to file the suit for specific performance. Upon notice, the defendant contested the suit by filing written statement. He raised the preliminary objection with respect to the locus standi of the plaintiff as well as of cause of action. It was alleged that he never executed any agreement to sell nor received Rs.4 lacs as earnest money. It was also alleged that the agreement of sale was result of fraud and misrepresentation. It was further alleged by the defendant that the plaint and agreement were typed on same date and he never executed any such document. He further took up the plea that the plaintiff is estopped from filing the suit by his own act and conduct as he has suppressed material facts and has forged agreement to sell. It is admitted in the written statement R.S.A. No.2039 of 2007. (3) ***** that plaintiff is his real brother. It is submitted that their father had sold the land to Surinder Singh and Dalbir Singh and they filed a suit for declaration challenging the validity of the sale deed executed by their father Joginder Singh and during those proceedings the plaintiff got his signatures on certain blank papers for the purpose of filing affidavits in that suit filed in the year 1986-87. The papers on which agreement had been forged were signed by him for the purpose of filing an affidavit but the plaintiff with ulterior motive has forged and fabricated the sale-deed with the help of those blank papers. On merits, it was submitted that the plaintiff, defendant and their sister Maninder Kaur are co-sharers in the disputed property, but denied agreement of sale. On the pleadings of the parties, the following issues were framed:- 1. Whether the defendant executed an agreement to sell dated 2.7.1995 in favour of the plaintiff and received Rs.4,00,000/-, as earnest money? OPP 2. Whether the plaintiff has been ready and willing to perform his part of the contract? OPP 3. Whether the alleged agreement is the result of fraud and misrepresentation and cheating? OPD 4. Whether the plaintiff has got no locus standi to file the suit? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD 7. Relief. Both the parties led evidence in support of their claim. After evaluating the evidence led by the parties, the trial court recorded findings R.S.A. No.2039 of 2007. (4) ***** on all the issues in favour of the plaintiff and decreed his suit. Aggrieved with the verdict of the trial court, the defendant filed appeal before the first appellate court, who after evaluating the evidence brought on the record, affirmed the findings on issue no.1 and thereby dismissed his appeal. The appellant, thereafter, has approached this court by way of filing this regular second appeal. Heard. It is contended on behalf of the appellant that the agreement to sell (Ex. P1), was written on a judicial paper and not on the stamp paper and no separate receipt was executed, as such the execution of the agreement is doubtful due to that. In support of his argument, he has drawn my attention to the photo copy of agreement and submitted that there is big space in between the two signatures of defendant (Parminder Singh) i.e. between signatures at agreement to sell and between receipt of earnest money. He contended that this paper, infact, was fabricated and it was signed by the appellant for filing an affidavit in a previous suit filed by the plaintiff and the defendant in the year 1986-87 for challenging the validity of the sale deed executed by their father Joginder Singh. This contention was also raised before the first appellate court and it was rightly held by the first appellate court, that the appellant is a law graduate and even at the time of execution of the agreement he was studying in law, thus, it has no merit. It is also held by the trial court that the parties are real brothers and as such it appears that the parties did not think of even getting the agreement executed on stamped papers. R.S.A. No.2039 of 2007. (5) ***** Another contention of the learned counsel for the appellant that there is recital in the agreement to sell, wherein it is recorded that, “the sale deed will be registered in favour of the party No.2 Gurpreet Singh on or before 13.12.1995. The possession of land is already continuing with party No.2 as its owner after the death of Shri Joginder Singh since 4.12.1983 and he will continue to remain in possession as its owner.” According to the learned counsel that if both the averments are taken together it proves that the agreement to sell, Ex.P1, is a forged and fabricated document and the same is an act of fraud and misrepresentation. This contention of the counsel has not merit, as it is admitted fact that the plaintiff is cultivating suit land as co-sharer of the joint land. The other contention of the learned counsel for the appellant is that the agreement to sell and the plaint were prepared on the same date. This contention was falsified as per the statement of DW3 Arvind Sood, Handwriting Expert. In his statement, he has nowhere stated that the documents were prepared on the same date or are forged one. He has admitted that spacing between typed lines on Ex.P1 and space between starting 13 lines on page no.2 is also the same. Hence, there is sufficient evidence on the record which shows that agreement to sell was actually executed by the appellant in favour of the plaintiff- respondent. After going through concurrent finding of the two courts below already agitated above, this court cannot become a third court for evaluating the evidence led by the parties. The present appeal is fully covered by the law laid down by the Hon'ble Supreme Court in Gurdev Kaur and others vs. Kaki and others 2007 (1) Supreme Court Cases 546, wherein it has been R.S.A. No.2039 of 2007. (6) ***** observed that, “ The legislative intention is very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. There is, thus, absolutely nothing wrong with the judgments of the courts below which have been passed after rightly evaluating the evidence on record. No question of law, much less a substantial one, arises, in this appeal and as such, the same is dismissed. 30.7.2007. (R.S.Madan) vs. Judge.