RSA No.4034 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.4034 of 2007 Date of Decision: 11.9.2009 Dhian Singh and others ....Appellants Vs. Kamla ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Puneet Jindal, Advocate for the appellants. Mr. M.S. Sachdeva, Mr. Mr.Nakul Sharma, Advocate for the respondent. .... RAJIVE BHALLA, J The appellants challenge the judgement and decree dated 1.9.2007, passed by the District Judge, Jalandhar, setting aside the judgement and decree dated 10.1.2006, passed by the Civil Judge (Senior Division), Jalandhar, and as a consequence dismissing their suit for specific performance. Surinder Kaur, deceased, now represented by her husband Dhian Singh and her two sons, filed a suit for specific performance of an agreement to sell dated 27.1.1998, alleging that the respondent agreed to sell 3 marlas of land after receving a consideration of Rs.2.00 lacs. The respondent, however, did not come forward to execute the sale deed, compelling Surinder Kaur to serve a notice dated 8.3.1999 requesting the respondent to execute the sale deed on 1.4.1999. Surinder Kaur visited the RSA No.4034 of 2007 2 office of the Sub-Registrar on 1.4.1999 but as the respondent did not turn up to execute the sale deed, she was left with no option but to file the suit. In the alternative, Surinder Kaur prayed that the amount of Rs.2.00 lacs be refunded with interest @ 24% p.a. The respondent filed a written statement denying the execution of the agreement. She asserted that she was involved in a litigation with the Municipal Corporation with respect to the property in dispute. Dhian Singh, the husband of Surinder Kaur was working as an Inspector with the Punjab Vigilance Bureau. He approached the respondent through Balwinder Kumar Mehta and made an offer to get the litigation settled for Rs.40,000/-. The respondent, who is an illiterate lady, fell into his trap and paid Rs.15,000/- to Dhian Singh on 26.1.1998. After accepting this amount Dhian Singh demanded another sum of Rs.10,000/-, which was paid on 26.2.1998, in the presence of Rajesh Kumar and Balwinder Kumar Mehta. However, Dhian Singh did not help the respondent and also refused to return the money. The respondent addressed a complaint to the Secretary, Ministry of Home, Police Department, Punjab, seeking permission to prosecute Dhian Singh. In retaliation Dhian Singh filed the present suit through his wife. On the basis of the pleadings, the trial court framed the following issues :- “1. Whether the defendant entered into an agreement on 27.1.1998 in favour of the plaintiff for selling the suit property ? OPP 2. Whether the plaintiff has been ready and willing to perform her part of the agreement ? OPP. 3. Whether, in the alternative, the plaintiff is entitled RSA No.4034 of 2007 3 to recover a sum of Rs. Two Lacs from the defendant with interest, If so, at what rate ? OPP 4. Whether suit property has not been described property, If so to what effect ? OPD 5. Whether plaintiff is estopped from filing the suit by her act and conduct etc. as alleged ? OPD 6. Relief.” On the basis of the pleadings, the evidence adduced and the arguments addressed, the trial court held that the agreement to sell stood proved by the deposition of the attesting witnesses PW-1 Ram Piara and PW-2 Jaswant Singh. It also held that as the respondent has admitted her signatures on the agreement, the onus to prove the allegation of fraud lay upon her. In the absence of any cogent evidence to establish the plea of fraud by Dhian Singh, the agreement to sell is valid. As a result the suit was decreed. Aggrieved by the aforementioned judgement and decree, the respondent filed an appeal. The District Judge, Jalandhar, vide judgement and decree dated 1.9.2007 accepted the appeal, set aside the judgement and decree passed by the trial court and dismissed the suit. Counsel for the appellants submits that the first appellate court has committed grave and serious errors while reversing the judgement and decree passed by the trial court. It is argued that while deposing as DW-2, the respondent has levelled serious allegations against Dhian Singh but in the same breath has deposed that she did not know Dhian Singh as she had never visited his house. This apparent contradiction establishes the falsity of RSA No.4034 of 2007 4 the respondent's allegations. It is further argued that as the respondent admits her signatures on the agreement to sell Ex.P-1, it stands proved, therefore, the first appellate court should not have reversed the findings recorded by the trial court. It is argued that the agreement to sell is executed on a stamp paper, duly purchased from a stamp vendor and is attested by two attesting witnesses. The attesting witnesses have proved the execution of the agreement and, therefore, the story that Dhian Singh demanded illegal gratification and induced the respondent to sign blank papers is false. It is submitted that the following substantial questions of law arise for consideration :- “i). WHETHER in the facts and circumstances of the case, the learned Lower Appellate Court could have reversed the findings recorded by the Trial Court, with regard to the Agreement to Sell, Exh.P-1 ? ii). WHETHER admission of signatures on an Agreement to Sell duly executed on a Stamp Paper by the vendor, further attested by the two attesting witnesses, can be held to be not proved/established ? Iii). WHTHER the learned Trial Court ought to have drawn adverse inference against the defendant/Respondent for her failure to examine Expert with regard to her allegation of signing blank Agreement to Sell, Exh.P-1 ? iv) WHETHER after admission of signatures, the contents of the document could be denied by a party without discharging the onus of disproving the same ? RSA No.4034 of 2007 5 v) WHETHER an instrument, duly signed and attested by the witnesses, could be doubted, merely because the same has not been scribed by a regular Deed Writer ? vi) WHETHER the story propounded by the defendant/Respondent with regard to signing blank Stamp Paper and handing over of the previous Sale Deed to the vendee could be believed in the facts and circumstances of the case, especially when there is no cogent evidence ? vii) WHETHER adverse inference should have been drawn against the defendant/Respondent for her failure to reply to the notice sent by the vendee, with a request for execution of the Sale Deed ? Counsel for the respondent, on the other hand, submits that the first appellate court did not commit error while accepting the appeal as it has returned a finding that the respondent, who is an illiterate lady was duped by Dhian Singh, on the pretext of helping her in her dispute with the Municipal Corporation. It is argued that the first appellate court rejected the agreement to sell as the deposition of the attesting witnesses was found to be false. It is prayed that as the impugned judgement and decree does not require interference, the appeal be dismissed. I have heard learned counsel for parties, perused the impugned judgement and decree and considered the substantial questions of law framed by counsel for the appellants. RSA No.4034 of 2007 6 The trial court decreed the suit for specific performance by holding that the execution of the agreement stands proved. The first appellate court has reversed these findings by rejecting the depositions of the attesting witnesses and by holding that Dhian Singh defrauded the respondent. The first question of of law is general in nature and would, therefore, be answered alongwith the other questions. The other questions arise from the alleged execution and proof of the agreement to sell Ex.P-1, the admission by the respondent of her signatures, her alleged failure to lead any evidence to prove the alleged fraud and the failure of the first appellate court to draw an adverse inference from the respondent's failure to reply to the notice calling upon her to execute a sale deed. As referred to herein before, the respondent denied the execution of the agreement and alleged that Dhian Singh, appellant no1, a serving Inspector in the Punjab Vigilance Bureau offered to help her in her on going litigation with the Municipal Corporation. He demanded and received money for this purpose and obtained her signatures on blank paper. The first appellate court accepted the defence and this apart commented adversely upon the depositions of the attesting witnesses, while disbelieving their depositions. In order to answer the questions raised by counsel for the appellants and to place the conclusions recorded by the first appellate court in their correct perspective, it would be appropriate to reproduce relevant extracts from the judgement of the first appellate court :- “Though the agreement is not required to be attested yet the same was attested by Ram Piara, PW1, and Jaswant Singh, PW2. During their examination-in-chief they proved the execution of this agreement Ex.P1 by the RSA No.4034 of 2007 7 defendant in favour of the plaintiffs. However, a perusal of their cross-examination shows that their attestation was obtained subsequently by Dhian Singh, PW3 and that they never witnessed the execution of this agreement. It was stated by Ram Piara, PW1, in the very beginning of his cross-examination, that neither Surinder Kaur, plaintiff, nor Kamla, defendant, are known to him and he never met them during his life time. If that is the case then how it can be said that he witnessed the execution of this agreement by the defendant in favour of the plaintiff. Similarly, it was stated by Jaswant Singh, PW2, during his cross-examination that he had met the defendant for the first time on the day the agrement was executed. Similarly, he had met Surinder Kaur, plaintiff, on the same day. He had just reached the place of execution of the agreement by chance and was asked to put his attestation and he did so. It cannot be believed that just a passer-by, who was a stranger to the parties, would be asked to attest such like document incorporating a transaction of the sale of property for Rs.2 lacs. A minute perusal of the cross-examination of these witnesses shows that they are not worthy of belief and on the basis of their testimony it cannot be concluded that they have proved the due execution of the agreement.” As regards the finding that she was duped by Dhian Singh, a RSA No.4034 of 2007 8 relevant extract from the first appellate court's judgement reads as follows :- “When the defendant entered the witness box as DW2, she proved on record her affidavit Ex.DW2/A. She deposed therein that she never entered into any such agreement to sell on 27.1.1998 nor she received any consideration from the plaintiff. The plaintiff was stranger to her. She was having litigation regarding the plot in dispute with Municipal Corporation, Jalandhar, which was claiming that a park was carved out from this plot. When her suit was dismissed by the trial court, she filed an appeal which was also dismissed. The second appeal is now pending before the Hon'ble High Court. Dhian Singh was posted as Inspector in the Vigilance Department. At the time her appeal was admitted, he approached him through Balwinder Kumar Mehta and represented that being Inspector in the Vigilance Department higher officials of the Municipal Corporation were known to him and he could get the matter settled between her and the Municipal Corporation. He told her that she will have to spend Rs.40,000/- for that purpose. Accordingly, she paid Rs.15,000/- to Dhian Singh on 26.1.1998 in the presence of Balwinder Kumar Mehta and the balance amount was to be paid after the matter was decided. At that time Dhian Singh obtained her signatures on certain blank stamp papers on the pretext RSA No.4034 of 2007 9 that he would be in need of those papers for moving the application and the affidavit for the purpose of settlement. He also took from her the original sale deed. Dhian Singh did not get any such settlement effected and she approached him during the month of December, 1998, for the return of money but he refused to do so. This statement of the defendant about the payment of illegal gratification to Dhian Singh has been fully corroborated by Balwinder Kumar Mehta, DW1. According to him, it was he who had introduced Dhian Singh to the defendant and the matter was settled in his presence and the amount of Rs.15,000/- was also paid in his presence on 26.1.1998. He categorically stated that signatures of defendant were obtained in his presence. Further corroborative evidence has been produced in the form of statement of Rajesh Kumar, DW3. It is apparent from the above extracts, that the attesting witnesses did not witness the execution of the agreement. PW-1 admits that he did not know Surinder Kaur or the respondent and met them for the first time on the date of the execution of the agreement. PW-2 on the other hand admits that he met Surinder Kaur and the respondent for the first time on the day of the execution of the agreement and was a chance witness. The allegation that Dhian Singh received money on the pretext of helping her in her litigation with the Municipal Corporation, is established by the deposition of Balwinder Kumar Mehta and Rajesh Kumar, who introduced the respondent to Dhian Singh. RSA No.4034 of 2007 10 Another factor that weighed with the first appellate court is that the deed writer has not been produced and even otherwise, is not a regular deed writer. Though it is not necessary to get an agreement scribed from a regular deed writer but it was incumbent upon the appellants to have at least disclosed his identity. The first appellate court also noticed that Surinder Kaur is described as the daughter of Ram Singh and not as the wife of the appellant thus drawing an inference against the due execution of the agreement. The findings recorded by the first appellate court are neither perverse nor arbitrary, as they are based upon a considered appraisal of the evidence on record. The plea of deception and fraud having been established by the deposition of respondent and corroborated by the depositions of Balwinder Kumar Mehta and Rajesh Kumar, her admission that the agreement to sell bears her signatures and her failure to respond to the legal notice calling upon her to execute a sale deed does not give rise to any adverse inference. In view of what has been stated herein above, I am of the firm opinion that the first appellate court did not commit any error in reversing the judgement and decree passed by the trial court and dismissing the suit. As no question of law, much less a substantial question of law arises for adjudication, the appeal is dismissed with no order as to costs. 11.9.2009 ( RAJIVE BHALLA ) GS JUDGE