Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 666 (PNJ)

Sadhu Singh v. Kuldip Sharma

2004-07-07

HEMANT GUPTA

body2004
Judgment Hemant Gupta, J. 1. The unsuccessful plaintiff in two Courts is in appeal before this court to seek specific performance of the agreement to sell dated 18.6.1972. 2. The plaintiff has brought the suit for specific performance of the agreement dated 18.6.1972, whereby he alleged that he has entered into an agreement of sale to purchase the house in question on sale consideration of Rs. 7,000/-, which was executed by one Prem Chand Sharma, father of defendant Nos. 1 to 9 for himself and on behalf of his brother Rattan Chand Sharma and a sum of Rs. 2,500/- was paid as earnest money. The rest of sale consideration was to be paid at the time of the registration of sale which was to be executed on or before 23.10.1976. It was alleged that since the defendants have failed to execute the sale deed inspite of the registered notices and telegrams, he sought specific performance of the agreement by filing the suit on 6.1.1979. 3. It may be noticed that Prem Chand Sharma died on 2.12.1972 whereas his brother Rattan Chand Sharma died on 5.11.1972. It was also alleged that Nirmal Chand Sharma, defendant No. 9, entered into an agreement for sale with defendant No. 22-Surinder Mohan for himself and on behalf of defendant Nos. 10 to 21 on 10.8.1976. On the basis of the said agreement to sell, defendant No. 9, executed the sale deed for himself and on behalf of defendant Nos. 10 to 19 on 15.4.1981 in favour of defendant No. 22 of 37/80 share. In the said sale deed, it was stipulated that the sale deed on behalf of defendant Nos. 20 and 21 shall be executed after obtaining permission from the competent Court as the said defendants were minors. 4. It was the stand of the defendants that no such agreement dated 18.6.1972 was executed by the plaintiff in respect of sale of the house. The issues which are material for determination of the present appeal are issue Nos. 4, 5 and 6 which reads as under :- "4. Whether Prem Chand Sharma executed an agreement dated 18.6.1972 for the sale of the house in dispute for himself and on behalf of Rattan Chand Sharma for Rs. 7,000/- in favour of the plaintiff? OPP 5. If issue No. 4 is proved that the terms of the deed of agreement? OPP 6. Whether Prem Chand Sharma executed an agreement dated 18.6.1972 for the sale of the house in dispute for himself and on behalf of Rattan Chand Sharma for Rs. 7,000/- in favour of the plaintiff? OPP 5. If issue No. 4 is proved that the terms of the deed of agreement? OPP 6. Whether the earnest money of Rs. 2500/- was paid by the plaintiff to Prem Chand Sharma on the basis of the agreement dated 18.6.1972? OPP." 5. It is the concurrent finding of fact by both the Courts below that agreement dated 18.6.1972 is not proved to be executed by Prem Chand Sharma for the sale of the house for himself and on behalf of Rattan Chand Sharma. 6. As per the plaintiff-appellant, the following substantial questions of law arise for consideration :- 1. Whether the judgments and decrees of the Courts below are liable to be set aside as they are based upon misreading of evidence? 2. Whether the Courts below committed an illegality by ignoring the contents of Ex.DW5/A. General Power of Attorney executed by P.C. Sharma, vendor in favour of his sons stating himself to be the absolute owner in possession of the disputed house? 3. Whether the Lower Appellate court erred in law to hold that agreement to sell Ex. PA was prepared in suspicious circumstances, while ignoring the evidence of the marginal witness and the scribe, which proved execution of Ex. PA? 4. Whether the Courts below committed an illegality by misreading the evidence/ testimony of Baldev Singh PW3 and Hazara Singh, PW5, attesting witnesses of Ex. PA). 5. Whether the Lower Appellate court erred in law in not decreeing the suit of the plaintiff appellant qua the share of P.C. Sharma when it had reversed the finding of the Trial Court under issue No. 9 and held that the property in dispute is not coparcenary property and P.C. Sharma is owner of 1/2 share of the same? 6. Whether the judgments and decrees of the Courts below are perverse?" 7. I have heard the learned counsel for the parties and gone through the record of the case carefully. 8. 6. Whether the judgments and decrees of the Courts below are perverse?" 7. I have heard the learned counsel for the parties and gone through the record of the case carefully. 8. Learned counsel for the appellant has vehemently argued that the entire approach of the courts below in holding that the execution of the agreement dated 18.6.1972 is not proved, suffers from the patent illegality as the Courts have examined the issue of proof of agreement by standards of proof of will by introducing suspicious circumstances in execution of the agreement relevant. It is contended that once the attesting witnesses have supported the plaintiff in respect of the execution of the agreement, the suspicious circumstances could not be taken into consideration to return a finding that such an agreement was not executed. 9. However, I am unable to agree with the arguments raised by the learned counsel for the appellant. The agreement of sale is sought to be proved by examining PW6-Bahadur Singh and PW5-Hazara Singh, the attesting witness. Apart from the statement of Sadhu Singh, Plaintiff, who has appeared as his own witness, the statement of all the three witnesses have been examined in detail by the Courts below and it has been found that the attesting witnesses of the agreement have failed to even identify Prem Chand Sharma in photographs produced on record marked as C & D. When the photographs were shown to Sadhu Singh, he has deposed that he can identify Prem Chand Sharma, if produced in person. The Courts below found that on the said date, Prem Chand Sharma was not alive and the witnesses have tried to wriggle out the difficulty in identification in such manner. It may be noticed that the plaintiff is tenant under Prem Chand Sharma at the rate of Rs. 5/- per month and, thus, avoiding identification of Prem Chand Sharma in the photographs to show that the witness has much to hide. 10. Apart from the various factors which have been taken into consideration by the Courts below such as execution of the agreement not by the regular deed writer, execution of the agreement not on stamp paper etc. The basic fact as found by the Courts below is that the signatures on agreement dated 18.6.1972, Exhibit PA is not that of Prem Chand Sharma. The plaintiff had produced N.K.Jain as PW8 and proved his report Ex. The basic fact as found by the Courts below is that the signatures on agreement dated 18.6.1972, Exhibit PA is not that of Prem Chand Sharma. The plaintiff had produced N.K.Jain as PW8 and proved his report Ex. PW8/7 whereas the defendants have produced Diwan K.S. Puri, who has appeared as witness as DW4 and submitted his report Ex. DW3/D. He compared the specimen signatures S1 to S4, Exhibit DW5/A with the disputed signatures marked Ql to Q2 on Exhibit DA i.e. agreement to sell marked as Q3 on site plan Ed. P!. The defendants also examined Sh. P.S. Ahuja, document expert as PW 9 in rebuttal, as Dewan K.S. Puri was not available to them. On the basis of three reports as well\as comparison of the signatures made by the trial Court himself, the Court returned a finding that the disputed signatures of Prem Chand Sharma on document Ex. PA and site plan Ex. PI are different from the admitted signatures. In appeal, the said findings recorded by the Trial Court have been affirmed. The First Appellate Court has held that the disputed signatures do not tally with the specimen signatures, if one has a look at them. 11. I am unable to agree with any of the argument raised by the learned counsel for the appellant that the courts below have appreciated the question of proof of agreement to sell analogous to the proof of will by taking into consideration suspicious circumstances as relevant for proof of the agreement to sell. The onus was on the plaintiff to prove that the owner has executed the agreement to sell with the plaintiff for the sale of the house The onus was on the plaintiff also to prove that the parties were ad idem in respect of the terms and conditions of agreement to sell. The Courts below have appreciated the evidence led by the parties to examine whether Prem Chand Sharma ever entered into an agreement with the plaintiff. To return such a finding, the Courts have taken into consideration not only the direct evidence of execution of agreement but also surrounding circumstances. One cannot find any illegality in taking into consideration the factors which are relevant to determine the proof of the agreement. To return such a finding, the Courts have taken into consideration not only the direct evidence of execution of agreement but also surrounding circumstances. One cannot find any illegality in taking into consideration the factors which are relevant to determine the proof of the agreement. One cannot loose sight of the fact that the agreement is of dated 18.6.1972 but the last date for registration of sale deed is after four years i.e. 23.10.1976. Such long period of execution of the sale deed is beyond ones comprehension. Still further, it is stipulated in the agreement that if any of the owners die before the execution of the sale deed, the legal representatives would be bound to execution of the sale deed. Such a clause only shows that the agreement was not executed on the date it bears. As the owners have died within six months of this alleged agreement and, therefore, the plaintiff in their over zealousness has introduced such a clause. It has been found by both the Courts below that the report of the expert produced by the defendants is reliable by the Court below and the report of expert produced by the plaintiff was not believed. Both the Courts below have compared the signatures on the alleged agreement to sell and the site plan attached with it with the admitted signatures and found that they are not comparable. Even in second appeal, I have compared the signatures on the said agreement Exhibit PA and site plan, Ex. PI and the enlargements thereof with the enlargements of admitted signatures and find that signatures of agreement to sell and site plan attached with it are comparable with the admitted signatures of the executant. 12. Both the Courts have returned a concurrent finding that the agreement dated 18.6.1972 is not proved to be executed by Prem Chand Sharma and such finding is not proved to be suffering from any misreading of evidence or any other patent illegality, therefore, no substantial question of law arise for consideration of this Court. Consequently, the appeal is dismissed with no order as to costs.