RSA No. 2713 of 2009 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2713 of 2009 Date of Decision: 03-08-2009 Balbir Singh and another ......Appellants Versus Santokh Singh and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri S.S. Khaira, Advocate, for the appellants. HEMANT GUPTA, J. (Oral). Defendant Nos. 1 and 2 are in second appeal aggrieved against the judgment an decree passed by the Courts below, arising out of a suit for specific performance for registration of a an unregistered sale deed dated 2.5.2002 executed by defendant No.1 in favour of the plaintiff. The plaintiff alleges that defendant No.1 was owner of the land measuring 11 kanals 10 marlas, which he agreed to sell to the plaintiff for a sum of Rs.3,75,000/-. The sale deed was executed on 2.5.2002 and the RSA No. 2713 of 2009 (2) entire sale consideration was received by defendant No.1 which the defendant acknowledged and admitted. The possession of the land was also delivered but when the sale deed was to be presented for registration, defendant No.1 did not appear before the Sub Registrar and as such, the sale deed could not be registered. Soon thereafter, on 8.5.2002, defendant No.1 has executed sale of the land measuring 11 kanals 10 marlas in favour of defendant Nos. 2 and 3 again on receipt of sale consideration of Rs.3,75,000/-. The plaintiff filed the present suit for specific performance on 12.3.2003. In order to prove the due execution of the sale deed dated 2.5.2002, the plaintiff examined PW2 Acchar Singh, deed writer and PW3 Mangal Singh, attesting witness. The plaintiff herself appeared as PW4. The entry of execution of the sale deed has been made in the register of the deed writer. The witnesses have deposed that they have put their respective signatures and thumb impressions in the presence of each other. The sale deed Exhibit P.1 bears the photographs of the witnesses as well as of the parties. The witnesses have also deposed that the total sale consideration of Rs.3,75,000/- was already received by Chain Singh and the possession was handed over to the plaintiff. A criminal case is also pending against defendant No.1 on the basis of an FIR dated 23.5.2002 Exhibit PW1/1. Defendant No.1, the owner of the suit land in his written statement admitted the execution of the sale deed Exhibit P.1 on 2.5.2002 in favour of the plaintiff. On the other hand, the defendants examined Makhan Singh as DW1, the attesting witness of the alleged agreement to sell dated 6.12.2000, RSA No. 2713 of 2009 (3) executed by defendant No.1 in favour of defendant Nos. 2 and 3. Sukhbir Singh defendant appearing as DW2 has deposed that a sum of Rs.55,000/- was paid to Chain Singh at the time of execution of the agreement to sell and an amount of Rs.3,20,000/- was paid to Chain Singh before the registration of the sale deed. DW3- Ajit Singh Lambardar and Beer Singh, son of Tara Singh are the attesting witnesses of the aforesaid sale deed. Both the Courts have decreed the suit holding that the agreement to sell propounded by the defendant on 6.12.2000 is a sham transaction. It has been further found by the Courts by the Courts below that the agreement Exhibit D.1 dated 6.12.2000 propounded by the defendant is purportedly scribed by Dr. Joginder Singh of village Jaito Sarja, who is not a regular Deed Writer, though regular Deed Writers were available at a distance of 7 kilometres from village Uchoke Khurd and village Tarsikka. The said agreement is not on a stamp paper nor has been attested by the attesting witnesses nor any amount was paid to Dr. Joginder Singh for writing of the said agreement. There is no date mentioned in the aforesaid agreement for registration of the sale deed. The alleged scribe of the deed Dr. Joginder Singh, has not been produced in the Court. It has been further found by both the Courts below that the stamp papers for the purpose of sale deed Exhibit D.2 in favour of defendant Nos. 2 and 3 were purchased on 7.5.2002 but the same was allegedly executed on 6.5.2002 i.e., which shows that the same was ante-dated i.e., prior to the date of purchase of the stamp papers. It has been further found that the stand of the appellant that the entire sale consideration was paid to Chain Singh at his house that too prior to the execution of the sale deed dated 6.5.2002 by sale RSA No. 2713 of 2009 (4) of their land to Simranjit Singh, Baljinder Singh and Ravinderjit Singh on 9.5.2002 for the total sale consideration of Rs.3,49,000/- is not unbelievable. If an amount of Rs.3,75,000/- has already been received by Chain Singh at his house, the subsequent sale deed receiving Rs.3,49,000/- on 9.5.2002 put the entire sale consideration in suspicious circumstances. On the basis of these facts, both the Courts have returned a concurrent finding of fact that the sale deed dated 8.5.2002 was executed so as to defeat the rights of the plaintiff and that the agreement Exhibit D.1 dated 6.12.2000 is a sham transaction. Learned counsel for the appellants has vehemently argued in the present second appeal that the finding recorded by the Courts below are based upon surmises and conjectures. The appellants have purchased the suit land after payment of sale consideration of Rs.3,75,000/- and thus, the appellants are bona-fide purchaser for value and consideration. Having heard learned counsel for the appellants at some length, I do not find any merit in the arguments raised. Chain Singh, the vendor has not been examined in Court. He has admitted the claim of the plaintiff in respect of the execution of the sale deed and receipt of the sale consideration on 2.5.2002. It was open to the defendants to examine him as a witness to prove the alleged agreement to sell dated 6.12.2000 and subsequent sale deed dated 8.5.2002 in their favour or in respect of the alleged sale deed in favour of the plaintiff. Both the Courts have found that the story of payment of sale consideration is not believable. Findings of fact recorded by the Courts below are sought to be disputed by way of re-appreciation of evidence. It could not be pointed out RSA No. 2713 of 2009 (5) that any evidence has been misread or not taken into consideration. Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 3.8.2009 ds