Regular Second Appeal No. 4069 of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.4069 of 2007 Date of decision: 17.08.2009 Piara Singh (since died) son of S. Ujagar Singh r/o H.No.30-A, Model House, Jalandhar, (dead)through LRs (i)Sukhwinder Singh s/o late Piara Singh, (ii) Harjinder Singh s/o late Piara Singh and (iii) Gurdip Kaur w/o late Piara Singh, all residents of H.No.30-A, Model House, Jalandhar. ..... Appellant. Versus Sohan Singh son of late S. Hazara Singh s/o late S. Jawahar Singh, r/o H.No. F.KM. 63, Model House, Jalandhar. ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:-Mr. Puneesh Jindia,Advocate for the appellant. Mr. H.P.S. Kochhar, Advocate for the respondent. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 18.01.2005, rendered by the Court of Additional Civil Judge (Senior Division), Jalandhar, vide which it decreed the suit of the plaintiff for specific Regular Second Appeal No. 4069 of 2007 -2- performance, and the judgment and decree dated 17.10.2007, rendered by the Additional District Judge (Adhoc), Fast Track Court, Jalandhar, vide which the appeal was dismissed. 2. Shorn off unnecessary details, the facts relevant for the decision of appeal, are that Piara Singh, defendant/appellant(now deceased) represented by the legal representatives, claimed himself to be the owner, in possession of property no. 30-A, situated in Model House, Jalandhar, as fully detailed in the head note of the plaint. He executed an agreement to sell dated 19.06.1995, in favour of Sohan Singh, plaintiff (now respondent) for a sale consideration of Rs.7,00,000/- and received a sum of Rs.5,00,000/- as earnest money. The date for the execution and registration of sale deeds was fixed as 01.07.1996, which was later on extended till 31.01.1997 with the consent of the parties, by way of appending endorsement, on the original agreement to sell. It was further stated that Sohan Singh, plaintiff, always remained ready and willing to perform his own part of the contract. It was further stated that the plaintiff served a legal notice through telegram dated 27.01.1997 alongwith registered notice, requesting the defendant to execute and get registered the sale deed, but to no avail. It was further stated that the Regular Second Appeal No. 4069 of 2007 -3- defendant breached the terms and conditions of contract. On the final refusal of the defendant, to execute and get registered the sale deed, in favour of Sohan Singh, plaintiff, left with no alternative, a suit for specific performance was filed. 3. The defendant, put in appearance, and contested the suit, by way of filing written statement, wherein, it was pleaded that the plaintiff had no locus standi to file the suit; that he was estopped from filing the suit by his own act and conduct; and that he had not come to the Court with clean hands. It was admitted that the defendant was the owner of house, bearing no.30-A, referred to above, but he was not the owner of shop no.141, Gujral Nagar, Jalandhar. The execution of agreement to sell, in favour of the plaintiff (now respondent), and receipt of a sum of Rs.5.00,000/- as earnest money, was denied. On the other hand, it was stated that the defendant borrowed a sum of Rs.50,000/- on interest @ 1% per month, in the month of June, 1993, from Sohan Singh, plaintiff and in order to secure the said loan, his (defendant) signatures were obtained on blank papers. It was further stated that when the defendant approached the plaintiff for the return of blank signed papers, he refused to hand over the same on the ground that the same were not available. It was further Regular Second Appeal No. 4069 of 2007 -4- stated that the agreement to sell was a forged and fabricated document. The remaining averments, contained in the plaint, were denied, being wrong. 4. From the pleadings of the parties, the following issues, were framed, by the trial Court:- “1-Whether the defendant entered into sale agreement dated 19.06.1995 with the plaintiff in respect of the suit property ?OPP 2-Whether the plaintiff is entitled to specific performance of the sale agreement in question ? OPD 3-Whether the plaintiff has got no locus standi to file the present suit ?OPD 4-Relief.” 5. The parties led evidence, in support of their case. The trial Court, after hearing the Counsel for the parties, and on going through the evidence and record of the case, decreed the suit, vide its judgment and decree dated 18.01.2005, as stated above. 6. Feeling aggrieved, an appeal was preferred by the appellant/defendant, which was dismissed by the Additional District Judge, (Adhoc), Fast Track Court, Jalandhar, vide his judgment and decree dated 17.10.2005. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellant. Regular Second Appeal No. 4069 of 2007 -5- 7-A. During the pendency of appeal, the defendant/appellant died and his legal representatives were brought on record. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The following substantial questions of law, arise, in this appeal, for the determination of this Court:- “1. Whether the Courts below mis-read and mis- appreciated the evidence and recorded a perverse finding that the agreement to sell dated 19.06.1995 in respect of the property, in dispute, was executed by the defendant, in favour of Sohan Singh (now respondent) and received a sum of Rs.5.00 lacs as earnest money at that time ? 2. Whether the Courts below, recorded perverse findings to the effect that the agreement to sell was not a forged and fabricated document ? 3. Whether the Courts below recorded a perverse finding on account of mis-reading and mis-appreciation of the evidence that the plaintiff always remained ready and willing to perform his own part of the contract? 10. The Counsel for the appellant submitted that the appellant only received a sum of Rs.50,000/-, as loan, from Sohan Singh,plaintiff (now respondent) and at that time, his signatures on blank papers, were obtained. He further submitted that the defendant (now appellant) repaid the whole amount, Regular Second Appeal No. 4069 of 2007 -6- with interest, and when he demanded the blank signed documents, the plaintiff refused to hand over the same. He further submitted that those documents, were converted into an agreement to sell. He further submitted that the agreement to sell, was a forged and fabricated document. He further submitted that he was not the owner of the shop, in question,and, as such, was not competent to enter into an agreement to sell, in respect the property, in dispute. He further submitted that even the scribe, who appeared as DW-1, stated that he did not scribe the agreement to sell. He further submitted that the Courts below mis-read and mis-appreciated the evidence, resulting into recording perverse finding, leading to decreeing the suit. 11. On the other hand, the Counsel for the respondent, submitted that the execution of the agreement to sell was duly proved. He further submitted that even in the agreement to sell, (Ex.P-1), it was, in clear cut terms, stated by the defendant (now appellant) that he was the owner of H.No.30- A as also of shop No. 141, measuring 2.5 x 7.5 meters, situated in Gujral Nagar Market, Jalandhar, (under 24 acres Scheme of Jalandhar Improvement Trust). He further submitted that the agreement to sell was not a forged and fabricated document. He further submitted that the theory, with regard to the taking of Regular Second Appeal No. 4069 of 2007 -7- loan of Rs.50,000/-, from the plaintiff and obtaining the signatures on blank papers of the defendant (now appellant), was concocted. He further submitted that the plaintiff (now respondent) always remained ready and willing to perform his own part of the contract, but it was the defendant, who breached the terms and conditions thereof. He further submitted that the Courts below, did not record perverse findings, but on the other hand, rightly decreed the suit. He further submitted that the judgments and decrees of the Courts below, being legal, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court and the first Appellate Court, even if the same are grossly Regular Second Appeal No. 4069 of 2007 -8- erroneous, as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The execution of the agreement to sell,(Ex.P-1) was duly proved by Bhagwan Dass, (PW-2), and Sohan Singh, plaintiff,(PW-3), as also by Amarjit Singh, (PW-4), who identified the signatures of his father Jaswant Singh, an attesting witness of the agreement to sell, as he (Jaswant Singh) died after his examination-in-chief. The other attesting witness of the agreement to sell, was not required to be examined, to prove the execution thereof. Even otherwise, the defendant, admitted his signatures on the agreement to sell, though his case was that the same were obtained on blank papers, which were converted into an agreement to sell lateron. The statement of Bal Mukand, Deed Writer, (DW-1) in the face of the evidence of Bhagwan Dass, (PW-2), and Sohan Singh, plaintiff,(PW-3), as also of Amarjit Singh, (PW-4), who identified the signatures of his father Jaswant Singh, an attesting witness of the agreement to sell, was hardly of any consequence. In Ram Khilona v. Sardar 2002(3) Civil Court Regular Second Appeal No. 4069 of 2007 -9- Cases 357 (SC), it was held that the evidence of marginal witness for proving the execution of agreement to sell, was not necessary. In Smt. Hans Raji v. Yosodanand, 1996(1) Civil Court Cases 115(SC), similar principle of law, was laid down. The Courts below, were, thus, right in coming to the conclusion that the execution, legality and validity of the agreement to sell, (Ex.P-1) stood proved from the evidence, produced by the plaintiff. 13. No doubt, the defendant (now appellant) took up the plea that his signatures were obtained on blank papers, which were converted into an agreement to sell and, thus, fraud was played upon him. According to the defendant, he gave the signed blank papers, by way of security at the time of borrowing loan of Rs.50,000/-, to the plaintiff. In case, such, a thing had happened, then at the time of appending his signatures on endorsement,(Ex.P-2) dated 28.06.1996, when the date for execution and registration of sale deed, was extended from 28.06.1996 to 31.01.1997, he could take such a plea. Why the defendant signed the endorsement (Ex.P-2) regarding the extension of time, in case, he had not executed the original agreement to sell, in favour of Sohan Singh, plaintiff, is not known. In the written statement, a categoric stand was taken by Regular Second Appeal No. 4069 of 2007 -10- the defendant, to the effect that he borrowed a loan from Sohan Singh, in the sum of Rs.50,000/- and handed over to him (plaintiff) the signed blank papers by way of security. When the defendant appeared as, DW-2, he stated that he took a loan from the wife of Sohan Singh and returned the same, in five instalments of Rs.10,000/- each to her, which were entered by her, in the diary. The diary was not produced. In view of the contradictory stand of the defendant, in the written statement as also at the time of leading his evidence, he failed to prove the defence taken by him, that his signatures were obtained by Sohan Singh, plaintiff (now respondent) on blank papers. The Courts below, on due appreciation of evidence, rightly came to the conclusion that the agreement to sell was not the result of fraud. 14. From the evidence of Sohan Singh, plaintiff (now respondent) (PW-3), it was proved that he always remained ready and willing to perform his own part of the contract, but the defendant, breached the terms and conditions thereof. Even notice Ex.PW3/D was served upon the defendant, by Sohan Singh, plaintiff (now respondent) on 27.01.1997 for the execution and registration of sale deed, in pursuance of the agreement to sell, but he failed to execute the same. Not only Regular Second Appeal No. 4069 of 2007 -11- this, on the date fixed, the plaintiff went to the office of the Sub Registrar and moved an application,(Ex.PW3/A) regarding his presence. In view of the statement of Sohan Singh, duly corroborated by the documents, placed on record, it was clearly proved that he always remained ready and willing to perform his own part of the contract, but the defendant breached the terms and conditions thereof. 15. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based, on the correct reading and due appreciation of evidence, and law on the point, do not suffer from any illegality, material irregularity or perversity, warranting the interference of this Court. The judgments and decrees of the Courts below, are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. The substantial questions of law, depicted above, are answered against the appellant. 16. For the reasons recorded above, the appeal being devoid of merit, must fail, and the same stands dismissed with costs. (Sham Sunder) 17.08.2009, Judge dinesh