RSA No.1851 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEALNo.1851 of 2009 DATE OF DECISION: 3 rd MAY, 2011 Shisha Singh .... Appellant Versus Jaspal Singh .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Vikas Singh, Advocate for the appellant. Mr. Raman Mohinder, Advocate for respondent. * * * * L.N. MITTAL, J. (ORAL) By this common order, I am disposing of two appeals i.e. RSA No.1851 and RSA No.3288 of 2009 both titled as Shisha Singh versus Jaspal Singh because both these appeals have arisen out of the same suit. Appellant-plaintiff Shisha Singh filed suit against defendant- respondent Jaspal Singh for permanent injunction alleging that plaintiff is owner in possession of the suit land measuring 37 Kanals and defendant has no concern therewith. But the defendant was bent upon to interfere in possession of the plaintiff over the suit land and to dispossess him forcibly therefrom. Accordingly, plaintiff sought permanent injunction against said threatened action of the defendant. Defendant in the written statement alleged that the plaintiff agreed to sell 22 Kanals land out of the suit land to the defendant @ ` 2,00,000/- per RSA No.1851 of 2009 -2- acre and received ` 3,00,000/- as earnest money and executed agreement dated 22.06.2001 and also delivered possession thereof to the defendant who is in possession of the said land. The defendant also made counter-claim for specific performance of the aforesaid agreement alleging that he has always been ready and willing to perform his part of the contract but plaintiff committed breach thereof. Plaintiff filed replication wherein he reiterated the averments as pleaded in the plaint and also controverted the counter-claim of the defendant. The plaintiff denied execution of the agreement or having delivered possession of the land to the defendant. Various other pleas were also raised. Learned Civil Judge (Junior Division), Samana vide judgment and decree dated 08.05.2006 dismissed the plaintiff's suit and decreed the defendant's counter-claim. Plaintiff preferred two first appeals i.e. one against dismissal of his suit and the other against decree in the counter claim of the defendant. Learned Additional District Judge, Patiala vide judgments and decrees dated 28.02.2009 dismissed both the appeals. Feeling aggrieved, plaintiff has preferred the instant two second appeals. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that possession of defendant over the land mentioned in the agreement has been held proved by the courts below merely on the basis of recital in the impugned agreement, whereas Khasra Girdawari depicting possession of the plaintiff over the said land even after the impugned agreement has been ignored by the courts below. The contention cannot be accepted. Recital in the agreement is RSA No.1851 of 2009 -3- an admission of the plaintiff himself that he had delivered possession of the aforesaid land to the defendant. Consequently, entry in subsequent Khasra Girdawari is not sufficient to displace the recital in the agreement. The defendant has proved his counter-claim regarding the impugned agreement by himself stepping into witness box and by examining two attesting witnesses of the agreement namely Ajaib Singh as DW-2 and Balkar Singh as DW-3 and also its scribe Surinder Kumar Mittal as DW-4. All of them have broadly stated according to the version of the defendant in the counter-claim. In addition to it, defendant has also examined finger print expert Dr. Inderjit Singh who has opined that thumb impressions of defendant on the impugned agreement match with his specimen/standard thumb impressions. Science of finger print comparison is perfect science. No finger print expert has been examined by the plaintiff to rebut the aforesaid evidence of the defendant. On the contrary, there is only bare denial of the plaintiff about impugned agreement. There is no counter version. The plaintiff has not explained as to how his thumb impressions came to be affixed on the impugned agreement and also in the register of the deed writer against the entry of the agreement. The plaintiff examined Hazur Singh PW-3 another attesting witness of the impugned agreement. Hazur Singh also admitted his signatures on the agreement. His statement does not rebut the cogent evidence of the defendant. At the risk of repetition, it has to be highlighted that the plaintiff in the replication and reply to counter claim did not plead that his thumb impressions were obtained by fraud or misrepresentation or in any other manner on the impugned agreement. Moreover statements of the scribe and two attesting witnesses of the agreement read with statement of RSA No.1851 of 2009 -4- defendant himself are cogent and reliable and are sufficient to prove due execution of the agreement. Learned counsel for the appellant contended that the defendant has not produced evidence about his resources to pay the amount of ` 3,00,000/- as earnest money to the plaintiff. The contention is untenable because no such plea was raised in replication and reply to counter-claim. On the contrary, recital in the impugned agreement regarding said payment and statements of defendant and his witnesses prove that the said payment was made. Learned counsel for the appellant next contended that out of the land mentioned in the impugned agreement, there is land of Khasra No.24//18/1 (6-0) but the lower appellate court has held that this Khasra number has been mentioned by clerical error in place of Khsara No.24//8/1 although there is no such pleading by the defendant nor there is any material on record to substantiate the same. On the other hand, counsel for the defendant contended that plaintiff is not owner of Khasra No.24//18/1 mentioned in the agreement but is owner of Khasra No.24//8/1 and, therefore, lower appellate court has rightly made the aforesaid observation. I have carefully considered aforesaid contentions and find force in the contention raised by counsel for the appellant. On behalf of the defendant, there is neither any pleading nor any evidence on record to the effect that Khsara no.24//18/1 was mentioned by clerical error in the agreement in place of Khasra No.24//8/1. In the absence of any such pleading and material on record, the contention raised on behalf of defendant cannot be RSA No.1851 of 2009 -5- accepted. Consequently, finding of lower appellate court in this regard is erroneous, illegal and perverse being beyond pleadings and evidence on record and is accordingly set aside because the same raises substantial question of law to this effect for determination in the instant second appeals. Except as mentioned in the preceding paragraph, there is no merit in these second appeals. Concurrent finding recorded by the courts below in favour of defendant and against the plaintiff is based on proper appreciation of evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or mis-appreciation of the evidence. Consequently, it does not warrant interference in second appeals. No other question of law, much less substantial question of law, arises for determination in these second appeals. Accordingly both these appeals are dismissed, subject to observation in the preceding paragraph. (L. N. MITTAL) JUDGE 3rd May, 2011 'raj'