R.S.A.No. 4098 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4098 of 2009 (O&M) Date of decision: 13.11.2009 Balwant Singh ......Appellant Versus Mohinder Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. J.S.Brar, Advocate, for the appellant. **** SABINA, J. Plaintiff Balwant Singh filed a suit for possession by way of specific performance of agreement to sell dated 20.11.1996, which was dismissed by the Additional Civil Judge (Sr.Divn.), Zira vide judgment and decree dated 24.12.2007. In appeal, the said judgment and decree were upheld by the Additional District Judge, Ferozepur, vide judgment and decree dated 28.3.2009. Hence, the present appeal. Brief facts of the case, as noticed by the trial Court in R.S.A.No. 4098 of 2009 (O&M) 2 para Nos. 2 and 3 of its judgment, are as under:- “2. Briefly stated the facts as alleged by the plaintiff in the plaint are that the defendant Bhagwan Singh was owner of the suit land as mentioned in the head note of the plaint. On 20.11.1996, the defendant entered into an agreement for sale of the suit land at the rate of Rs.1,40,000/- per acre in favour of the plaintiff and he executed an agreement to this effect in favour of the plaintiff which was duly scribed by Sh.Surinder Kumar Narang Document Writer, Zira and witnessed by Sh.Balwinder Singh of village Sanher and Mehla Singh son of Gura Singh resident of village Sanher. Defendant Bhagwan Singh duly thumb marked the said agreement in the presence of the scribe and the witnesses. An amount of Rs. 3 lac was duly received by the defendant and defendant agreed to execute the registered sale deed on or before 20.6.1997 in favour of the plaintiff on receipt of the remaining sale consideration. On the stipulated date i.e. 20.6.1997, the plaintiff along with balance sale consideration and other requisite expenses appeared before the Sub Registrar Zira for getting the sale deed executed from the defendant in terms of the agreement of the sale but the defendant did not turn up and the plaintiff got his presence marked on the said date before the Sub R.S.A.No. 4098 of 2009 (O&M) 3 Registrar, Zira. The plaintiff has always been ready and is still ready and willing to perform his part of the contract. Despite the requests made by the plaintiff to the defendant for the execution of the sale deed, the defendant did not pay any heed to the request of the plaintiff. Hence, the present suit. 3. Pursuant to the notice given to the defendant, he appeared through his counsel and filed the written statement contesting the claim of the plaintiff by way of taking preliminary objection that the plaintiff is having no locus standi to file the present suit as the plaintiff had obtained the thumb impressions of the defendant on blank paper and the same was reduced into writing giving the shape of the alleged agreement to sell and the same has been done by the plaintiff by taking the undue advantage of the oldage of the defendant and being the son of the defendant. On merits it has been alleged that the defendant never entered into an agreement with the plaintiff on 20.11.1996. On 19.11.1996 the defendant executed a sale deed in favour of Inderjit Singh son of the plaintiff with regard to the land measuring 16 kanals. By taking the advantage of the oldage of the defendant, the plaintiff being the real son of the defendant got the thumb impressions of the defendant on blank stamp paper R.S.A.No. 4098 of 2009 (O&M) 4 which was purchased by him on 14.11.1996 and the same was converted into the alleged agreement to sell dated 20.11.1996. The sale deed was got executed from the deed writer Ravinder Kumar Narang and the same deed writer scribed the sale deed on 19.11.1996 and on 20.11.1996, he scribed the alleged agreement in connivance with the plaintiff as the said deed writer had got the thumb impression of the defendant in his register and later on the next date he prepared the alleged agreement in favour of the plaintiff in connivance with the marginal witnesses of the agreement. If the defendant had agreed to execute the agreement with his free will then he could have certainly got executed the said agreement to sell on the same date i.e. on 14.11.1996 when he allegedly purchased the stamp paper or more so it could have been executed on 19.11.1996 when the sale deed was executed by him in favour of plaintiff's son Inderjit Singh. Earlier the plaintiff had also filed the suit for permanent injunction against the defendant. So the present suit is barred in view of the provisions of order 2 rule 2 CPC. It has also been alleged the defendant never received any amount on account of the earnest money from the plaintiff. Denying other averments in the written statement, prayer for dismissal of the suit has been R.S.A.No. 4098 of 2009 (O&M) 5 made.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether defendant entered into an agreement to sell on 20.11.1996 with the plaintiff with respect to the suit land with terms and conditions? OPP 2. Whether the plaintiff has always been ready and willing to perform his part of the contract? OPP 3. Whether defendant committed breach of the contract? OPP 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the plaintiff had obtained thumb impression of defendant on blank stamp paper fraudulently? OPD 6. Whether the plaintiff has filed the suit on 31.5.1997 for permanent injunction. If so to what effect? OPD 7. Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. The plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 20.11.1996 alleged R.S.A.No. 4098 of 2009 (O&M) 6 to have been executed by his father Bhagwan Singh in his favour. However, PW-3 Balwinder Singh, attesting witness to the agreement to sell, deposed that he did not remember if Bhagwan Singh had agreed to sell his land on 20.11.1996 to his son Balwant Singh. He further deposed that he had not read over the contents of Ex.P-1 nor he knew about the contents of the same. The said witness was declared hostile and during his cross-examination by counsel for the plaintiff, he deposed that he was not informed that the land in dispute was agreed to be sold vide agreement Ex.P-1. A sum of Rupees Three lacs had not been paid in his presence. In these circumstances, the Courts below held that the agreement to sell in question had not been duly proved to have been executed by Bhagwan Singh in favour of the plaintiff as the witness, who had allegedly attested the agreement to sell, had not supported the case of the plaintiff. Moreover, it has been further observed by the learned Additional District Judge in the impugned judgment that PW-2 Surinder Kumar, document writer, during his cross-examination, had stated that the entry at Sr.No. 438 was with regard to the sale deed dated 19.11.1996 executed by Bhagwan Singh in favour of Inderjit Singh son of Balwant (plaintiff). The entry with regard to Ex.P-1 was the first entry on the next day i.e. 20.11.1996 at Sr.No.441. There is no explanation as to why Ex.P-1 was not executed by Bhagwan Singh on 19.11.1996 when sale deed dated 19.11.1996 was scribed. More so, the stamp papers had been purchased on 14.11.1996. R.S.A.No. 4098 of 2009 (O&M) 7 The thumb impressions on the stamp papers, which were produced on 14.11.1996, for execution of the agreement were examined by the handwriting and finger print expert DW-1 Anil Kumar Gupta and he gave his opinion that the alleged thumb impressions of Bhagwan Singh on entry No.7033 dated 14.11.1996 in the register of the stamp vendor Janak Ran on page No.231 did not match with standard thumb impressions of Bhagwan Singh appearing on the agreement Ex.P-1. In these circumstances, the Courts below had rightly held that the agreement to sell Ex.P-1 had not been duly proved by the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 13, 2009 anita