IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Regular Second Appeal No.4725 of 2009 Major Singh … Appellant Versus Kishan Singh and others … Respondents 2. Regular Second Appeal No.4825 of 2009 Harbans Kaur and others … Appellants Versus Kishan Singh and another … Respondents Date of decision: 11th July, 2011 CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Hitesh Kaplish, Advocate for the appellants in RSA No.4725 of 2009. Mr. Surjit Singh Swaich, Advocate for the appellants in RSA No.4825 of 2009. Mr. Atul Nehra, Advocate for the respondents. KANWALJIT SINGH AHLUWALIA, J. (ORAL) By this common judgment, two appeals viz. (1) RSA No.4825 of 2009 preferred by the legal representatives of Resham Singh executant of the agreement to sell and (2) RSA No.4725 of 2009 preferred by subsequent purchaser of the land shall be decided together. RSA No.4825 of 2009 has been preferred by five defendants to the suit. Plaintiff-respondent Kishan Singh instituted a suit for possession by way of specific performance of agreement to sell dated 30th July, 1990 with regard to the land, details and description whereof have been given in the head note of the plaint. As per the plaintiff- respondent, Resham Singh had executed an agreement to sell dated 30th July, 1990 in his favour. Rs.35,000/- were paid as earnest money and the Regular Second Appeals No.4725 and 4825 of 2009 date for execution of the sale deed was fixed as 30th July, 1992. Before the agreement to sell could be executed, Resham Singh executed a sale deed in favour of his nephew Major Singh-defendant No.6 to the suit. Furthermore, during the pendency of the suit, Resham Singh died and therefore, his legal representatives were impleaded as defendants No.1 to 5. The trial Court held that the agreement to sell was indeed executed between the parties and the plaintiff was entitled to possession of the suit land by way of specific performance of the agreement to sell. The judgment and decree passed by the trial Court was assailed in an appeal. The plaintiff examined Arvind Sood handwriting expert as PW-4 in rebuttal. The examination of Arvind Sood handwriting expert PW-4 in rebuttal evidence was assailed by defendant No.5 to the suit by filing Civil Revision No.5615 of 2006, which was decided on 20th September, 2007. The revision petition preferred by defendant No.5 was accepted and this Court had held that the plaintiff is not entitled for leading evidence in rebuttal. It is admitted by the parties that the evidence of Arvind Sood handwriting expert was not taken into consideration by the trial Court in view of the orders passed by this Court. However, counsel for the parties agree that the lower appellate court had indeed taken into consideration the evidence of Arvind Sood handwriting expert PW-4 to dismiss the appeal preferred by the defendants. However, counsel for the respondents has stated that the lower appellate Court had taken various circumstances into consideration and the evidence of Arvind Sood handwriting expert PW-4 was not the only circumstance to arrive at the conclusion. Be that as it may, since the parties are in agreement that the evidence of Arvind Sood handwriting expert PW-4, who was examined by 2 Regular Second Appeals No.4725 and 4825 of 2009 way of rebuttal evidence, could not be taken into consideration, this Court is of the view that it will be in the interest of justice if the matter is remitted back to the lower appellate Court to decide the appeal afresh without taking into consideration the evidence of Arvind Sood handwriting expert PW-4. The parties shall cause their appearance before the lower appellate Court on 24th August, 2011 and the Court shall decide the appeal after hearing the concerned parties within three months from the date of appearance of the parties before it. With the observations made above, the above said two appeals are disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE July 11, 2011 rps 3