RSA No. 1847 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1847 of 2009 (O&M) Date of Decision: 05.4.2011. Love Barinder Singh .......Appellant Vs. Gurcharan Singh ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. S.C.Pathela, Advocate for the appellant. Mr. P.S.Khurana, Advocate for the respondent. ..... SABINA, J. Plaintiff had filed a suit for specific performance of agreement to sell dated 30.5.2001. The case of the plaintiff in brief was that defendant was owner of the suit property and had agreed to sell his share of 4 Bighas of land to the plaintiff vide agreement dated 30.5.2001. `. 1,00,000/- were received by the defendant from the plaintiff towards earnest money. The sale deed was to be executed on or before 30.8.2001. Possession of the suit property was handed over to the plaintiff by the defendant at the time of execution of agreement to sell dated 30.5.2001. Defendant had, however, failed to execute the sale deed in favour of the plaintiff, although the plaintiff was ready and willing to perform his part of the RSA No. 1847 of 2009 (O&M) -2- contract. Hence, suit for specific performance was filed by the plaintiff. Defendant, in his written statement, averred that in fact, he had borrowed `. 1,00,000/- from the plaintiff as loan. Since the parties were closely related to each other, the defendant signed certain blank papers at the instance of the plaintiff as a security towards the advanced loan. The possession of the suit property was not delivered by the defendant to the plaintiff. The execution of the agreement to sell in question was denied. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendant executed an agreement to sell dated 30.5.01 qua the property in dispute? OPP 2. Whether the plaintiff is entitled to possession of the suit land by way of specific performance of the agreement to sell dated 30.5.2001? OPP 3. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 4. Whether the plaintiff was and is still ready and willing to perform his part of the contract? OPP 5. Whether the suit is maintainable in the present form? OPP 6. Whether a cause of action has arisen to the plaintiff for filing the present suit? OPP 7. Whether the plaintiff has not come to the court with clean hands? OPP 8. Whether the suit has been properly valued for the RSA No. 1847 of 2009 (O&M) -3- purposes of court fee and jurisdiction? OPP 9. Relief.” Trial court vide judgment and decree dated 6.8.2007, held that the plaintiff had failed to prove his entitlement qua the relief of possession by way of specific performance of agreement to sell. A decree for recovery of `. 1,00,000/- along with interest was passed in favour of the plaintiff. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was dismissed by Additional District Judge vide judgment and decree dated 29.1.2009. Hence, the present appeal by the plaintiffs. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. Plaintiff has filed the suit basing his claim on agreement to sell dated 30.5.2001 (Ex.P-2) . The defendant has taken a plea that in fact, he had only taken a loan of `. 1,00,000/- from the plaintiff on 30.5.2001 and had been made to sign the blank papers. Parties are closely related to each other. Plaintiff is the nephew of the defendant. Plaintiff in order to prove the due execution of agreement to sell in question, examined the scribe Dharam Dev as PW-3. The said witness, in his examination in chief, deposed that he had scribed the agreement to sell in question. Parties had signed the same, after admitting the contents of the agreement to sell in question as correct. He had entered in his register, maintained by him, qua the execution of the agreement to sell in question. However, he could not trace out the said register. The courts below have rightly held that the fact that the RSA No. 1847 of 2009 (O&M) -4- Deed Writer, who was maintaining the register qua the document scribed by him, had failed to prove the entry made in his register, made the execution of the agreement to sell in question doubtful. In normal circumstances, a Deed Writer who maintains the register qua the document scribed by him, is required to prove the entry made by him in his register qua the document in question to rule out the possibility that document might have been fabricated at a later date. However, PW-3 had failed to prove the entry made by him in his register. Merely because the Deed Writer was of old age would not absolve him of his liability to produce the register in the court. Since the parties are closely related to each other, the plea taken by the defendant that he had taken a loan of `. 1,00,000/- from the plaintiff, in the facts and circumstances of the present case, appears to be genuine. Both the courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the agreement to sell in question was in fact a security qua loan, advanced by the plaintiff to the defendant. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE April 05, 2011 Gurpreet