RSA No.5988 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.5988 of 2003 Date of decision: 17.12.2008 Surjit Kaur and others ......Appellants Versus Kanwaljit Singh ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. G.S. Bhatia, Advocate for the appellants. Mr. R.S. Sihota, Sr. Advocate with Mr. Ashok K. Sharma, Advocate for the respondent. * * * Rakesh Kumar Garg, J. This is plaintiffs' second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal of the defendant- respondent was accepted and judgment and decree of the trial Court for specific performance of the agreement to sell in favour of the plaintiff- appellants was set aside resulting into the dismissal of the suit of the appellants. Briefly stated, the plaintiff-Mohinder Singh (now deceased) filed a suit for possession by way of specific performance of the contract/agreement to sell dated 6.12.1989 executed by the defendant in favour of the plaintiff in respect of the suit land and received a sum of Rs.22,000/- as earnest money from the plaintiff. The date for execution and registration of the sale deed was mutually settled as 6.3.1990. The remaining sale consideration of Rs.58,000/- was to be paid by the plaintiff to the defendant at the time of execution and registration of the sale deed. Both the parties mutually agreed and extended the date for execution and registration of the sale deed on 3.3.1990 and thereafter, again on 1.6.1990, RSA No.5988 of 2003 2 the date for execution and registration of the sale deed was mutually extended for 6.9.1990. The plaintiff again paid a sum of Rs.2,000/- as earnest money to the defendant which was duly noted down in the agreement to sell. It is the case of the plaintiff that thereafter, the plaintiff and defendant again on 31.8.1990 got the date extended for execution and registration of the sale deed for 28.2.1991. It is the case of the plaintiff that he approached the defendant on 27.2.1991 and requested for execution and registration of the sale deed of the land in question in his favour on 28.2.1991 and also tendered/showed the remaining sale consideration and other amount for expenses. On 28.2.1991, the plaintiff remained present in the Office of Sub Registrar, Samana with the remaining sale consideration and the amount for other expenses but the defendant did not turn up. The plaintiff approached the defendant at his residence but he put off the matter and did not give any clue for performing his part of the contract of the agreement. The plaintiff through his counsel issued a notice to the defendant for performing his part of the contract of the agreement to sell but the defendant refused to accept the notice. The plaintiff then approached the defendant time and again to perform his part of the contract of the agreement to sell and deliver the possession of the land in question in favour of the plaintiff but every time the defendant put off the matter on one pretext or the other and has finally a week back refused to perform his part of the contract of the agreement and threatened to transfer the suit land in favour of some body else. The plaintiff is still ready and willing specifically to perform his part of the agreement. Hence, this suit. Upon notice, the defendant filed written statement taking various preliminary objections. On merits, it was admitted that defendant agreed to sell the suit land to the plaintiff-Mohinder Singh and an agreement to this effect was executed on 6.12.1989. It was further stated RSA No.5988 of 2003 3 in the written statement that in the agreement, it was clearly stipulated that the sale deed shall be executed by the defendant on 6.3.1990. On 6.3.1990, the defendant was ready and willing to perform his part of the contract and in fact the plaintiff was not ready and willing to perform his part of the contract. Receipt of Rs.2,000/- was admitted. However, it was denied that defendant ever agreed to extend the time for execution and registration of the sale deed or that any such writing was ever scribed or executed by the defendant extending the time for execution of the sale deed. It was alleged that the writings are forged and fabricated. It was also denied that on 31.8.1990 again the defendant extended the time for execution and registration of the sale deed or that the date for execution and registration of the sale deed was fixed as 28.2.1991. The alleged writing for extension of time itself shows the forgery committed by the plaintiff Mohinder Singh while preparing the signatures of the defendant on the paper. All this has been done by the plaintiff in connivance with Ram Singh son of Jagir Singh of village Prem Garh his stock witness. There was no occasion or reason for the defendant not to execute the sale deed nor there was any legal hitch in it. The plaintiff Mohinder Singh was never ready and willing to perform his part of the contract and to bring his suit within limitation. He has manipulated forged and fabricated writings for extension of time which are dated 3.3.1990, 1.6.1990 and 31.8.1990. It was denied that the plaintiff approached the defendant on 27.2.1991 and requested him to execute and get registered the sale deed in his favour on 28.2.1991. It was wrong and denied that the plaintiff tendered and showed the remaining sale consideration and the amount for purchase of stamps to the defendants or that the defendant assured him to come present before the office of Sub Registrar, Samana on 28.2.1991 for execution and registration of the sale deed in favour of the plaintiff. It was denied that the RSA No.5988 of 2003 4 defendant ever refused to perform his part of the contract well within time. It was wrong and denied that any notice was issued by Sh. D.S. Nagra, Advocate on 13.3.1993 and the defendant ever refused to accept the registered A.D envelope. The allegations regarding approaching the defendant time and again for performing his part of the contract and to deliver the possession in favour of the contract and to deliver the possession in favour of the plaintiff and defendant put off the matter to perform his part of the contract were wrong and denied. It was also denied that the plaintiff was and is always ready and willing to perform his part of the contract. Hence, dismissal of the suit was prayed for. The trial Court vide impugned judgment and decree dated 31.10.2001 came to the conclusion that the defendant agreed to sell the disputed land in favour of the plaintiff vide agreement to sell dated 6.12.1989 and further agreed to extend the time on 3.3.1990, 1.6.1990 and 31.8.1990 and did not appear for the execution of the sale deed on 28.2.1991 before the Office of Sub Registrar, Samana. As such, the plaintiff is entitled for specific performance of the agreement to sell dated 6.12.1989 and also entitled for possession by way of specific performance of the agreement to sell dated 6.12.1989. Hence, both these issues were decided in favour of the plaintiff and against the defendant. As per discussion on issue No.1, 1A, the plaintiff was held entitled for possession by way of specific performance of the agreement to sell dated 6.12.1989 and decreed the suit. Feeling aggrieved by the aforesaid judgment and decree of the trial Court, the defendant filed an appeal which was accepted vide impugned judgment and decree dated 17.9.2003. While accepting the appeal, the Lower Appellate Court held that the findings of the trial Court on issue No.1A are not based on proper appreciation of the evidence in law RSA No.5988 of 2003 5 as the writing dated 31.8.1990 Ex.P-3 could not be proved by the plaintiff as according to plaint, the suit of the plaintiff was filed on 8.10.1993 i.e. well beyond the period of limitation. Not satisfied with the judgment and decree of the Lower Appellate Court, the plaintiff-appellants have filed this appeal in this Court challenging the aforesaid judgment and decree. Learned counsel for the appellants has vehemently argued that the judgment and decree passed by the Lower Appellate Court is perverse as the Lower Appellate Court has totally misread and misinterpreted the evidence led by the appellants. Elaborating further his argument, the learned counsel has stated that writing Ex.P-3 has been proved from the statement of Ashok Kumar, Deed Write, who scribed this writing which was also duly signed by the defendant. As such, it was duly proved on record that after the writing dated 31.8.1990, the time for the execution of the sale deed in question was extended upto 28.2.1991 validly and therefore, the judgment and decree of the Lower Appellate Court is liable to be set aside. On the other hand, learned counsel appearing on behalf of the respondent has supported the findings of the Lower Appellate Court and has argued that the Lower Appellate Court on appreciation of evidence has recorded a finding of fact by holding that writing Ex.P3 is not proved and no substantial question of law arises in this appeal and the same is liable to be dismissed. I have heard learned counsel for the parties and perused the record. It is the admitted case of the parties that the defendant- respondent agreed to sell his land vide agreement Ex.P-1 and the date for execution and registration of the sale deed was fixed as 6.3.1990. The RSA No.5988 of 2003 6 dispute is with regard to the extension of period of execution of the sale deed vide writings dated 3.3.1990 , 1.6.1990 on the agreement to sell itself and then on 31.8.1990 vide writing Ex.P3. Even if writing dated 3.3.1990 and 1.6.1990 are admitted and proved and taken into account, still the suit which was filed on 18.10.1993 was well beyond the period of limitation. However, if writing dated 31.8.1990 Ex.P3 whereby the period of execution of the sale deed was extended upto 28.2.1991 stands proved, the suit of the plaintiff was within limitation; otherwise the same was liable to be dismissed being well beyond the period of limitation. Thus, in the present case, the controversy is confined only to the extent whether writing Ex.P3 dated 31.8.1990 whereby the period of execution of the sale deed was extended upto 28.2.1991 stands proved or not. The Lower Appellate Court after discussion held that the plaintiff-appellants were not able to produce any evidence to prove the writing Ex.P-3. While reaching the aforesaid conclusion, the Lower Appellate Court observed as under: “The person who could depose about this writing was either the plaintiff or witness Ram Singh. Ram Singh was examined in this case when ex parte evidence was recorded but he has not been examined when the defendant put in appearance and contested the claim of the plaintiff. Mohinder Singh plaintiff has died and the only available evidence on the file which could be relied under Section 33 of the Evidence Act is the statement of Mohinder Singh on this file, when the ex parte evidence was recorded. He has stated that in the agreement the date for registration of the sale deed was fixed as 3.3.1990 which was later on extended upto 6.6.1990 and RSA No.5988 of 2003 7 then to 6.9.1990. He has not made any reference towards the execution of the writing Ex.P3 by defendant Kanwaljit Singh. There is nothing in his statement that this writing was executed at the instance of defendant and he has signed the same in his presence. The defendant has examined the hand-writing expert to prove that the signatures of defendant on the writing Ex.P3 are forged. I do not find any reason to discuss the report of the document expert in detail because there is no evidence on file to prove that this writing was executed by the defendant. When there is no primary or direct evidence to prove the writing that defendant agreed to extend the time vide writing Ex.P3, this document cannot be held as proved. The learned trial Court has held this writing as proved as per the statement of deed-writer Ashok Kumar who, in fact, has stated totally nothing to the effect that this writing was signed by the defendant in his presence. In the absence of any evidence no such findings could be recorded just on the basis of assumptions/presumptions. The findings of the learned trial Court to this effect, as such, are not sustainable in the eyes of law. I am of the considered opinion that plaintiff has failed to produce even an iota of evidence to prove that the defendant agreed to extend the date for execution and registration of the sale deed vide writing Ex.P3 to 28.2.1991.” Thus, from the above observations of the Lower Appellate Court, it is clear that the Lower Appellate Court found that the appellants RSA No.5988 of 2003 8 have failed to produce any evidence. Ashok Kumar, Deed Writer while appearing as PW-3 has stated that this writing Ex.P-3 was scribed by him at the instance of Mohinder Singh but he has no where stated that Kanwaljit Singh has signed it in his presence. Admittedly, he has not made any entry of this writing in his register. Kanwaljit Singh was not known to him personally. Thus, the statement of scribe cannot be put to any use by the plaintiffs to prove that it was executed by the defendant to extend the period of limitation. Surjit Kaur PW-2 is the wife of Mohinder Singh and she did not have personal knowledge regarding the execution of agreement and the writings of extension of time. Ex.P3 was not executed in her presence by the defendant. Pritam Singh, PW-1, has not stated anything about the execution of the writing dated 31.8.1990. Thus, after considering the entire evidence on record, the Lower Appellate Court has taken a view that the appellants have failed to prove the writing Ex.P-3. It is well settled law that even if on the evidence produced by the parties two views are possible and in that eventuality, this Court is not to substitute its own view unless any perversity is shown in the findings recorded by the Lower Appellate Court. Learned counsel for the appellants was unable to find any such infirmity or illegality in the findings of the Lower Appellate Court. I find no merit in this appeal. No substantial question of law arises. Dismissed. December 17, 2008 (RAKESH KUMAR GARG) ps JUDGE