RSA No. 2212 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2212 of 2008 Date of Decision: 14.10.09 Rajesh son of Partap Singh, resident of Manesar, Tehsil and District Gurgaon. ... Appellant Versus 1. Smt. Chameli widow of Ishwar son of Ram Sarup; 2. Sunder son of Ishwar son of Ram Sarup; 3. Sushila daughter of Ishwar son of Ram Sarup; 4. Krishna daughter of Ishwar son of Ram Sarup; 5. Raj Kumari daughter of Ishwar son of Ram Sarup; all residents of village Kheri Asra, Tehsil and District Jhajjar (Haryana). ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. P.R. Yadav, Advocate, for the appellant. Mr. Deepak Balyan, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, dated 03.03.08, rendered by the Court of Additional District Judge, Jhajjar, vide which, it accepted the appeal, against the judgement and RSA No. 2212 of 2008 2 decree, dated 05.03.05, rendered by the Court of Civil Judge (Junior Division), Jhajjar, and dismissed the suit of the plaintiff. 2. The facts, in brief, are that, Ishwar Singh (since deceased), was the owner in possession of the property, in dispute. It was stated that he executed an agreement to sell, in favour of Rajesh, plaintiff, in respect of the land, in dispute, for a sale consideration of Rs. 7,77,720/-, out of which, he received a sum of Rs. 77,000/-, as earnest money. It was further stated that the possession of the land, in dispute, was delivered, by Ishwar Singh, to the plaintiff. It was further stated that Ishwar Singh, died on 22.06.97. It was further stated that a suit for maintenance, was filed, by Smt. Chameli wife of Ishwar Singh, which was pending, during the execution of the agreement to sell. It was further stated that, however, Ishwar Singh, agreed to execute the sale deed, in favour of the plaintiff, in respect of the land, in dispute, after the decision of the said suit. It was further stated that, it was also agreed to, between the parties that, in case, the suit, was decided, against Ishwar Singh, then he would be liable to pay double the amount of the earnest money, to the plaintiff. However, after his death, the said suit, became infructuous. It was further stated that the plaintiff, remained always ready and willing to perform his own part of the contract, but the defendants, breached the terms and conditions thereof, as a result whereof, they were served with a legal notice. The defendants, were many a time asked, to perform their own part of the contract, but to no avail. Ultimately, a suit for specific performance, RSA No. 2212 of 2008 3 was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the plaintiff, had no locus-standi to file the suit. It was further pleaded that the suit was not maintainable. It was further pleaded that the plaintiff was estopped, by his own act and conduct, from filing the suit. It was admitted that Ishwar Singh (since deceased), was the owner in possession of the land, in dispute. It was denied that the agreement to sell, was executed by Ishwar Singh, in favour of the plaintiff, in respect of the land, in dispute, on 07.05.97. It was further denied that Ishwar Singh, delivered the possession of the land, in dispute, to the plaintiff. It was stated that, in the suit, filed by the wife of Ishwar Singh, an injunction order, restraining him, from alienating the land, in dispute, was passed, by the Civil Court. It was further stated that the defendants, were not bound by the agreement to sell, as the same, was a forged and fabricated document. It was further denied that Ishwar Singh, agreed to execute the sale deed or return double the amount of the earnest money, after the decision of the suit for maintenance, filed by Chameli, his wife, against him. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether Ishwar entered into an agreement to sell of disputed property to the plaintiff and executed an agreement to sell dated 07.05.97, after receipt of RSA No. 2212 of 2008 4 Rs. 77,000/-, as earnest money? OPP (ii) Whether the plaintiff is ready and willing to perform his part of contract? OPP (iii) Whether the plaintiff has no locus-standi to file the present suit? OPD (iv) Whether the suit is not maintainable in the present form? OPD (v) Whether the agreement in question is based on fraud, if so, its effect? OPD (vi) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the defendants/respondents, which was accepted, by the Court of Additional District Judge, Jhajjar, vide judgment and decree dated 03.03.08. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. I have heard the Counsel for the parties, and have gone through and perused the documents, on record, carefully. 9. The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, that no legal and valid agreement to sell dated 07.05.97, was executed, by Ishwar Singh, RSA No. 2212 of 2008 5 predecessor-in-interest of the respondents? 10. The Counsel for the appellant, submitted that the execution of the agreement to sell, referred to above, was duly proved. He further submitted that, even the earnest money, was paid, at the time of execution of the agreement to sell by Ishwar Singh. He further submitted that the stamp paper, could be purchased, by anybody, as it was not necessary, that the same, should be purchased, by the vendor, or the prospective vendee. He further submitted that no separate receipt, with regard to the payment of earnest money, was required to be obtained. He further submitted that the first Appellate Court, on account of misreading and misappreciation of evidence, came to the conclusion, that no legal and valid agreement to sell, was executed, by Ishwar Singh, predecessor-in-interest of the respondents, in favour of the plaintiff. He further submitted that the judgement and decree of the first Appellate Court, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondents, submitted that the thumb impressions of Ishwar Singh, were obtained, by fraud, in collusion with the attesting witnesses, as also the scribe. He further submitted that the mere look, at the agreement to sell, in itself, was sufficient, to prove, that the same, was not allegedly executed, in a normal manner. He further submitted that, since already a suit for maintenance, had been filed, by the wife of Ishwar Singh, namely Chameli, against him, wherein, stay had been granted, it could not be imagined, that he would execute the agreement to sell, in favour of the RSA No. 2212 of 2008 6 plaintiff, during the currency of the stay order. He further submitted that, as such, the agreement to sell, was a forged and fabricated document. He further submitted that the judgement and decree of the first Appellate Court, being legal and valid, 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 is liable to be dismissed, for the reasons to be recorded, hereinafter. It is settled principle of law, that this Court, in the Regular Second Appeal, cannot interfere with the findings of fact, recorded by the first Appellate Court, until and unless, it comes to the conclusion, that the same, are based, on misreading or misappreciation of evidence, and law, on the point. Chameli, one of the respondents, wife of Ishwar Singh, had already filed a Civil Suit No. RBT-383 dated 13.10.95, for maintenance, against Ishwar Singh. On 31.10.95, in that Civil Suit, an order, certified copy whereof, is D1, was passed, by the Sub-Judge 1st Class, Jhajjar, whereby, Ishwar Singh, was restrained, from alienating the suit land, till further orders. Thereafter, the case, was adjourned to 20.05.96, for ex-parte evidence. Ultimately, the aforesaid suit was dismissed as withdrawn, on 04.09.98. The agreement to sell P1, was allegedly executed, on 07.05.97, i.e. during the currency of the stay order, referred to above. Since Ishwar Singh, had already been restrained, from alienating the property, in question, by the Civil Court, it was unthinkable that, he would execute the agreement to sell P1, in favour of the appellant. He very well knew that, in case, he RSA No. 2212 of 2008 7 violated the order of injunction, passed by the Civil Court, then he will face the serious consequences. In that event, he could also be sent to civil prison. This fact clearly proved that actually, no agreement to sell P1,was executed, by Ishwar Singh, in favour of the appellant, but the same, was created/forged, in connivance with the attesting witnesses/scribe. The first Appellate Court, was also right, in coming to such a conclusion. 13. Jai Bhagwan, one of the attesting witnesses of the alleged agreement to sell, purchased the stamp paper, on which, the same was, allegedly scribed. In the normal course, the stamp paper for scribing an agreement, is either purchased, by the vendor, or the prospective vendee. Why Jai Bhagwan, an attesting witness thereof, nearly related to the appellant, purchased the same, was a circumstance, which cast a cloud of doubt, on the very execution, legality and validity of the agreement to sell. Moreover, no explanation, with regard to the aforesaid circumstance, was furnished, by the witnesses. The first Appellate Court, was right, in taking into consideration this aspect of the matter for coming to the conclusion that the genuineness of agreement P1 was doubtful. 14. Jai Bhagwan, PW1, and Rameshwar, PW2, the attesting witnesses of the agreement to sell P1, not only belonged to a village, other than the village of Ishwar, the alleged vendor, and Rajesh, the prospective vendee, but also nearly related to the latter. Jai Bhagwan, PW1, during the course of his cross-examination, stated that, Rajesh, RSA No. 2212 of 2008 8 prospective vendee, is the son of his maternal uncle. He admitted, during the course of his cross-examination, that Rameshwar, the other attesting witness of the agreement to sell, is his uncle. Rameshwar, PW2, during the course of his cross-examination, admitted that, Rajesh, is the son of his brother-in-law. Had Ishwar Singh, intended to execute the agreement to sell, in favour of Rajesh, he would have certainly procured the services of respectable persons i.e. Sarpanch and Nambardar of his village. Why Jai Bhagwan, and Rameshwar, attesting witnesses, nearly related to Rajesh, were allegedly called, from other villages, and made to attest the document P1, is not known. Under these circumstances, the allegation of the defendants/respondents, in the written statement, to the effect that, the document P1, in question, was the result of fraud, as, on the blank paper, the thumb impressions of Ishwar Singh, were already, in existence, which was converted into agreement to sell, stood substantiated. The first Appellate Court, was also right, in holding so. 15. Even the scribe, was not examined, to prove the execution of the agreement to sell. It may be stated here that, in the normal course, non-examination of the scribe, would not have mattered much, but when, specific allegations of fraud and forgery, were set up, in the written statement, and the attesting witnesses of P1, were nearly related to the prospective vendee, it was required of the plaintiff, to produce him. Had the scribe been examined, he would have produced and proved the entry made, in his register, which would have certainly RSA No. 2212 of 2008 9 furnished corroboration to the execution, legality and validity of the agreement to sell. Since, no explanation, was furnished, for non- examination of scribe, the first Appellate Court, rightly held, that the execution, legality and validity of the agreement to sell, was doubtful. 16. Even a look, at the agreement to sell P1, clearly goes to show that, on the first page thereof, there is wide difference, in the inter-lining space, whereas, on the second page, the inter-lining space, is narrow. This circumstance clearly revealed, that the thumb impressions of Ishwar Singh, were already, in existence, on a blank paper, and with a view to adjust the writing, wider space was left, in- between the lines, on the first page, and narrow space, was left, in- between the lines, on the second page. Otherwise, there was no reason to adopt such a course. Had it been scribed by a layman, it would have been said, that he was not aware of scribing the documents, and, therefore, such a discrepancy occurred. There is an un-exhibited document i.e. copy of entry dated 07.05.97 of the register of the scribe, which shows, that it was scribed by a regular deed writer. The first Appellate Court, was right, in coming to the conclusion, that this circumstance, was also sufficient to cast a cloud of doubt, on the execution, legality and validity of the agreement to sell. 17. According to the plaintiff/appellant, he was put in possession of the property, in dispute, as per the recitals of the agreement to sell P1. However, no revenue record, was produced, to prove that the plaintiff/appellant, was in possession of the property, in RSA No. 2212 of 2008 10 dispute. Since the plaintiff was not put in possession of the property, in dispute, it means wrong recital was recorded in the agreement to sell P1. This also cast a doubt, on the execution, legality and validity of the agreement to sell P1. 18. Even no worth-while evidence, was produced, regarding the payment of earnest money of Rs. 77,000/-. It was not a small amount, which was kept by Rajesh, prospective vendee, in his house. No separate receipt, was issued, by Ishwar Singh, regarding the alleged payment of Rs. 77,000/-, to him, by Rajesh. Since the payment of Rs. 77,000/-, as earnest money, was not proved, the first Appellate Court, was right, in coming to the conclusion, that the agreement, was without consideration. After considering all the aforesaid circumstances, cumulatively, the first Appellate Court, was right, in coming to the conclusion, that the execution, legality and validity of the agreement to sell was highly doubtful. 19. The findings of fact, recorded by the first Appellate Court, 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 or perversity, and warrant no interference, by this Court. The judgment and decree of the first Appellate Court, are, thus, liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 20. The substantial question of law, depicted above, is answered against the appellant. RSA No. 2212 of 2008 11 21. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 14.10.2009 (SHAM SUNDER) Amodh JUDGE