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2000 DIGILAW 569 (PNJ)

Harpal Singh v. Gurmukh Singh

2000-05-25

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This is a defendants appeal and has been directed against the judgment and decree dated 14.2.2000 passed by Addl. District Judge, Fatehgarh Sahib, who affirmed the judgment and decree dated 14.5.1998 passed by Civil Judge (Junior Division), Fatehgarh Sahib, who passed a money decree for a sum of Rs. 65,000/- along with interest @ 6% per annum from the date of the execution of the agreement dated 19.6.1982 (Ex.P1) till payment. 2. Some facts can be noticed in the following manner :- The defendant vide agreement of sale dated 19.6.1982 agreed to sell his land fully described in the head-note of the plaint in favour of the plaintiff for a sum of Rs. 1,10,000/- and received a sum of Rs. 65,000/- by way of earnest money and agreed to execute the sale-deed in favour of the plaintiff within six months from the date of sanction of the mutation in his name on the basis of civil Court decree which was under challenge at that time. The plaintiff was also put into possession of the suit land by the defendant as prospective vendee. According to the plaintiff, he was always ready and willing to perform his part of contract. He came to know 15 days back that mutation of the land in dispute was sanctioned in the name of defendant on 27.7.1989. But the defendant did not inform him regarding the decision of the case in his favour and also with regard to the sanctioning of the mutation. With these above broad allegations, the plaintiff filed the suit for possession by way of specific performance. The suit was contested by the defendant, who stated that he never received any earnest money nor he delivered any possession to the plaintiff. The alleged agreement relied upon by the plaintiff does not bear his signatures. The father of the defendant namely Pritam Singh was in possession of the suit land upto the crop of Sauni, 1990 and thereafter he delivered the possession of the suit land to the defendant. Now the defendant has sold the suit land to Sajjan Singh, Gajjan Singh, Nasib Singh and Ajaib Singh sons of Gurbachan Singh through a registered sale deed no. 2962 dated 10.12.1994 for a consideration of Rs. 1,87,500 and possession has also been delivered to them. Now the defendant has sold the suit land to Sajjan Singh, Gajjan Singh, Nasib Singh and Ajaib Singh sons of Gurbachan Singh through a registered sale deed no. 2962 dated 10.12.1994 for a consideration of Rs. 1,87,500 and possession has also been delivered to them. The defendant further submitted that the agreement relied upon by the plaintiff is a false and fabricated document and the same is not admissible in evidence. With these allegations, the defendant has prayed for the dismissal of the suit. 3. The plaintiff filed re-joinder to the written statement in which he reiterated the allegations made in the plaint by denying those of the written statement and from the pleadings of the parties, following issues were framed :- 1. Whether the defendant has executed an agreement to sell dated 19.6.1982 in favour of plaintiff ? OPP 2. Whether plaintiff is ready and willing to perform his part of the contract ? OPP 3. Whether plaintiff is entitled to the decree as prayed for ? OPP 4. Whether the plaintiff is entitled to alternative relief to the recovery of Rs. 1,10,000/- ? OPP 5. Whether the plaintiff is entitled to the injunction as prayed for ? OPP 6. Whether the suit is bad for mis-joinder and non-joinder of necessary parties ? OPD 6-A. Whether the suit is time barred ? OPD 7. Relief. 4. The parties led oral and documentary evidence in support of their respective cases and on the conclusion of trial, the trial Court granted a money decree for a sum of Rs. 65,000/- as the plaintiff abandoned his relief for specific performance. 5. Aggrieved by the judgment and decree of the trial Court, defendant filed the first appeal before the Court of Addl. District Judge, Fatehgarh Sahib, who for the following reasons dismissed the appeal :- "The first attack on judgment made by the counsel for the appellant is that the learned Court below has misappreciated the evidence, the plaintiff has not led sufficient evidence on the record to prove the execution of the agreement Ex.P1 dated 19.6.1982. District Judge, Fatehgarh Sahib, who for the following reasons dismissed the appeal :- "The first attack on judgment made by the counsel for the appellant is that the learned Court below has misappreciated the evidence, the plaintiff has not led sufficient evidence on the record to prove the execution of the agreement Ex.P1 dated 19.6.1982. The evidence so led by the plaintiff has been sufficiently rebutted by the defendant by examining Shri M.N. Sharma, Document Expert, Patiala who vide his report opined that the signatures of Harpal Singh, defendant on the agreement Ex.P1 do not tally with his standard signatures Mark A1 and B1 on the sale deed Ex.DW1/E and Ex.DW1/F, therefore, inference should be drawn that Harpal Singh never executed the agreement, therefore, the question of specific performance of the said agreement does not arise at all. Having given my thoughtful consideration to this agreement advanced by the counsel for the appellant, I do not find any merit into it. In order to prove the execution of the agreement to sell dated 19.6.1982 Ex.P1, the plaintiff examined one of the marginal witness named as Piara Singh who has categorically stated that the agreement to sell was executed by the defendant in favour of the plaintiff after receiving a sum of Rs. 65,000/- as earnest money. His testimony has been corroborated by the plaintiff while appearing in the witness box as PW2 in all minute details. Both the witnesses were subjected to lengthy cross-examination, but their testimony could not be shattered by the defendants to impeach their credibility in any manner. The sole evidence led by the defendant in order to rebut this direct evidence is the testimony of DW1 Shri M.N. Sharma, Documents Expert, Patiala. I have perused the testimony of Sh. M.N. Sharma, PW as well as the report Ex.DW1/A made by him in this regard. He compared two signatures S1 and S2 on the sale deeds Ex.DW1/E and DW1/F, whereas he left the other two signatures admittedly made by Harpal Singh on the back of the sale deed marked as A and B. He also did not compare the questioned signatures of Harpal Singh on Ex.P1 with the signatures affixed by Harpal Singh on the Power of Attorney. The explanation made by the documents expert that since the standard signatures were available to him on the sale deed to form a definite opinion, therefore, he did not find it necessary to compare the other signatures on the record, but this explanation is hardly sufficient to place implicit reliance. He has not only ignored to examine the signatures Mark A and Mark B on the sale deeds and also the signatures on Power of Attorney, but has also not examined the signatures of the defendant on Mark D and Mark E which were available on the endorsement of Ex.P1 which were obtained by the Stamp Vendor at the time of purchasing of stamp. I also do not stand to distinguish the naked eye examination made by the learned Court below that the signatures of the defendant on Ex.P1 are identical with the signatures mark A, B, C, D as referred to above. I have also examined the questioned signatures with the signatures on the back of the sale deed and the same are quite identical with the questioned signatures. This Court also cannot lose sight of the fact that the science of handwriting is not a perfect science. The signatures of a person vary with the passage of time, with the made (mode ?) of his signing, mental state and stage of his posture at the time of making signatures. The evidence of handwriting expert is weak and has scarcely to deserve a place in the system of justice, it will not be in the wisdom of things to give much weight to the opinion of handwriting expert in the presence of the direct evidence as that science unlike the science of finger print is not perfect. It may not be taken as evidence unless corroborated by some other evidence. It has been observed time and again by the Apex Court as well as our Honble High Court that the handwriting experts normally help the parties by whom they are examined. No corroborative evidence to the testimony of Shri M.N. Sharma, Document Expert has been produced on the record. It has been observed time and again by the Apex Court as well as our Honble High Court that the handwriting experts normally help the parties by whom they are examined. No corroborative evidence to the testimony of Shri M.N. Sharma, Document Expert has been produced on the record. It is also worthwhile to mention here that though the defendant alleged that he never signed the agreement Ex.P1 but he remained silent since the time he came to know about the agreement till he filed the written statement, he did not file a complaint against the plaintiff for forging the document. All these facts and circumstances excite this Court to hold that the execution of the document Ex.P1 and the passing of consideration under the said agreement has been fully proved. As such I affirm the findings returned by the trial Court on Issue No. 1. So far as the question with regard to readiness and willingness to perform his part of contract is concerned, plaintiff while appearing in the witness box has categorically stated that he has always been ready and willing to perform his part of contract, even otherwise time was not made the essence of contract. The defendant has outrightly denied the execution of the agreement Ex.P1 and also of passing of consideration under it. The mutation with regard to the suit land was sanctioned on 27.7.1989 as is apparent from the copy of the jamabandi Ex.P4 and the plaintiff filed the instant suit immediately when he came to know about the said mutation, therefore, inference will be drawn that the plaintiff did not waste the time in filing the suit for specific performance and he remained ready and willing to perform his part of the contract. It has been next contended that this agreement was with regard to the sale of the land, the plaintiff has withdrawn the relief with regard to specific performance by way of getting the sale deed registered, therefore, the suit for recovery is not maintainable. Having given my thoughtful consideration to this contention of the counsel for the appellant, I do not find any substance in it. Having given my thoughtful consideration to this contention of the counsel for the appellant, I do not find any substance in it. The plaintiff had initially filed a suit for specific performance as well as in the alternative, for recovery of damages, however, when he came to know that the suit land stood already transferred by the defendant in favour of Sajjan Singh, Gajjan Singh, Nasib Singh and Ajaib Singh then vide application dated 28.2.1995 he abandoned relief of specific performance and claimed only decree for recovery of money alongwith interest. Since the land stood already transferred by the defendant, therefore, the plaintiff could abandon the relief of specific performance. I find support to my this view from the authority Jaggo Bai v. Harihar Prasad, AIR 1940 page 41 wherein it was observed as under :- "Vendee on a breach of contract by the vendors claimed a decree for specific performance or in the alternative a refund with interest of the amount of the purchase price paid by him to the vendors but withdraw during the pendency of the suit his claim for specific performance and the vendors did not suffer from the suit : Held that the vendee was not debarred from claiming the refund as the claim sought only restitution in integrum (interRegulation m ?) and was not strictly one for damages : AIR 1928 P.C. 208, Disting; (1857) 41 S.J. 490, Discussed; AIR 1926, PCI Rel. on." Thus in view of the authority of the Jaggo Bai (supra) the plaintiff was well within his right to abandon the relief of specific performance and such abandonment does not affect the rights of the plaintiff for relief of refund of earnest money claimed by him. The appellant has further assailed the judgment and decree on the ground that the suit is not within limitation." 6. In this manner, the present R.S.A. which I am disposing of in limine as this Court after hearing the learned counsel for the appellant is of the considered opinion that there is no merit in this appeal. I do not see any illegality or impropriety in the impugned judgments and decrees of the Courts below. 7. Faced with this difficulty, the learned counsel for the appellant tried to convince this Court that the agreement to sell Ex.P1 was a wagering contract and such an agreement cannot be enforced. I do not see any illegality or impropriety in the impugned judgments and decrees of the Courts below. 7. Faced with this difficulty, the learned counsel for the appellant tried to convince this Court that the agreement to sell Ex.P1 was a wagering contract and such an agreement cannot be enforced. He further submitted that there is no cogent proof with regard to the execution of the agreement. The defendant has even examined expert witness, who has deposed that the signatures of the defendant appearing on the agreement Ex.P1 do not tally with the specimen signatures of the defendant. 8. I do not subscribe to the argument of the learned counsel for the appellant in view of the overwhelming evidence led by the plaintiff. The plaintiff has categorically stated that the agreement Ex.P1 was executed by the defendant for a consideration of Rs. 1,10,000/-. It appears that the intention of the defendant became bad and for this reason he entered into another transaction of sale for a higher consideration. The averment of the agreement further indicates that possession of the land in question was allegedly delivered to the plaintiff under Section 53-A of the Transfer of Property Act. The concurrent finding of fact with regard to the execution cannot be disturbed in the Regular Second Appeal. Consequently, I do not find any merit in this appeal when an alternative relief has been granted to the plaintiff. Dismissed. Appeal dismissed.