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2007 DIGILAW 819 (PNJ)

Malkiat Singh v. Charan Kaur

2007-04-16

HEMANT GUPTA

body2007
Judgment Hemant Gupta, J. 1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned First Appellate Court whereby his suit for specific performance of the agreement to sell dated 27.9.1987 was dismissed in appeal. 2. It is the case of the plaintiff that on the aforesaid date, the defendant No. 1 agreed to sell the land measuring 26 kanals 18 marlas i.e. her remaining share in the land to the plaintiff on receipt of Rs. 10,000/- as earnest money on a total sale consideration @ Rs. 20,000/- per acre. The balance sale consideration was to be paid at the time of execution of the sale deed on or before 15.6.1988. Since the defendant failed to execute the sale deed, the present suit was filed on the ground that he is ready and willing to perform his part of the contract. 3. Earlier, the plaintiff filed a suit for permanent injunction. In the said suit, the defendant was injuncted from alienating the suit land except to the plaintiff. The said suit for permanent injunction was withdrawn. Thereafter the present suit for specific performance was filed. During the pendency of the earlier suit, defendant No. 1 sold the suit land to defendant Nos. 2 & 3 vide registered sale deeds dated 15.3.1990 and 21.3.1990. 4. The defendants denied the execution of the agreement to sell of the suit land dated 27.9.1987. It was pointed out that the plaintiff previously filed a suit alleging himself to be tenant on the land in dispute. The stay granted in favour of the plaintiff was vacated when the defendants contested the suit and an appeal filed against the said order was dismissed by the Court of learned Additional District Judge, Ludhiana and thereafter the present suit was filed with a mala fide intention to harass the defendants. It was also pointed out that Hardev Singh, brother of the plaintiff and defendant No. 1 had the litigation. Hardev Singh lost the suit upto the High Court. The defendant No. 1 was declared owner of the land as successor of Hazara Singh. In execution of the said decree against Hardev Singh, the plaintiff and Hardev Singh created hurdle, but at the intervention of the relatives, a compromise was arrived at. Hardev Singh lost the suit upto the High Court. The defendant No. 1 was declared owner of the land as successor of Hazara Singh. In execution of the said decree against Hardev Singh, the plaintiff and Hardev Singh created hurdle, but at the intervention of the relatives, a compromise was arrived at. The defendant gave 3-1/2 acres of the land to Hardev Singh, brother of the plaintiff and the plaintiff and a sale deed was executed on 24.8.1997. It was, thus, pointed out that defendant No. 1 could never agree to sell the land at the meager price of Rs. 20,000/- per killa after 15 years of the litigation when price of the land is Rs. 60,000/- per killa. 5. The learned First Appellate Court has recorded a finding that the plaintiff has failed to prove the execution of the agreement of sale dated 27.9.1987. The plaintiff has examined PW-4 Atamjit Singh and PW-5 Sukhjeet Singh, who have deposed that Cha-ran Kaur has executed an agreement Exhibit P-3. The plaintiff has also produced sale deed dated 24.8.1987, Exhibit P-2 executed by Charan Kaur. The signatures of Charan Kaur on the sale deed Exhibit P-3, by PW-1 Atul Kumar Singla, the handwriting expert. The signatures of Charan Kaur were also taken in the Court, Exhibit PW-1/A. It was opined by the expert that the signatures on Exhibit P-3, agreement to sell and that on the sale deed are of the same person. It was also opined that the signatures of Charan Kaur in the Court have been disguised in order to conceal her identity. The plaintiff himself has appeared as PW-6. 6. The learned First Appellate Court has narrated the history of the ownership of Charan Kaur. It was noticed that one Hazara Singh was the owner of the landed property. After the death of Hazara Singh, there is dispute between her daughter Charan Kaur and Basant Kaur who claimed to be widow of Hazara Singh. Basant Kaur averred to have gifted the property to Hardev Singh, brother of the plaintiff. They filed a suit claiming the entire estate of Hazara Singh. The said suit was dismissed by the learned trial Court, but decreed by the learned First Appellate Court vide judgment dated 11.8.1977, Exhibit D-11. The second appeal was dismissed by this Court on 25.2.1986 vide Exhibit D-10. They filed a suit claiming the entire estate of Hazara Singh. The said suit was dismissed by the learned trial Court, but decreed by the learned First Appellate Court vide judgment dated 11.8.1977, Exhibit D-11. The second appeal was dismissed by this Court on 25.2.1986 vide Exhibit D-10. Thus, it was found that the land in dispute is the part of the land came to Charan Kaur from her father. The said claim was resisted by Basant Kaur and Hardev Singh, brother of the plaintiff Malkiat Singh. After the said judgment, Charan Kaur entered into a settlement with Hardev Singh and executed a sale deed dated 24.8.1997, Exhibit P-2 in respect of the land measuring 25 kanals 18 marlas in his favour and in favour of the present plaintiff. In the said settlement, defendant No. 1 has also obtained possession of the remaining land measuring 26 kanals 18 marlas i.e. the land in dispute in the present appeal. 7. The learned First Appellate Court found that once Charan Kaur has obtained the possession of the disputed land from Hardev Singh and his brother Malkiat Singh after giving half share in the landed property, the defendant could not alienate the remaining property in favour of the plaintiff. It may be noticed that the agreement to sell propounded by the plaintiff is dated 27.9.1987 though the sale in favour of the plaintiff along with his brother Hardev Singh was dated 24.8.1987. The Court found that the agreement was not executed on any regular stamp paper nor scribed by any regular Deed Writer. The name of the scribe was not mentioned in the document. Both the attesting witnesses belong to village Kaunkey Kalan i.e. the village of the plaintiff, though the defendant Charan Kaur is residing at village Rasoolpur. The agreement is purportedly scribed at the residence of Sukhjeet Singh-PW5. The learned First Appellate Court has also found that the agreement Exhibit P-3 shows that the signatures of Charan Kaur appear only on the revenue stamp and no part of her signatures appears on the writing Exhibit P-3. Thus, it was found that if Charan Kaur was to execute any genuine agreement in favour of the plaintiff and was to sign the same in the ordinary course of execution of that writing, then some portion of her signatures would have appeared on the writing Exhibit P-3. Thus, it was found that if Charan Kaur was to execute any genuine agreement in favour of the plaintiff and was to sign the same in the ordinary course of execution of that writing, then some portion of her signatures would have appeared on the writing Exhibit P-3. It was also found that the revenue stamp on the agreement Exhibit P-3, on which signatures of Charan Kaur appear, was removed from some other document and affixed on the agreement Exhibit P-3 and it was, thus, for the reasons the same was not got executed from a regular deed writer nor on stamp paper. It was also found that a finding has been returned in judgment Exhibit D-11 dated 11.8.1977 that Hardev Singh etc. have got her signatures on blank stamp papers. It was also found that her signatures appear to have been obtained on the revenue stamp in that process and later on the agreement appears to have been forged to grab her property. Earlier the plaintiff filed an injunction suit claiming to be tenant on the disputed property. The application for ad-interim injunction was dismissed by the learned First Appellate Court on 16.7.1987 and immediately thereafter, an agreement has been propounded. The Court also found that even if the revenue stamp affixed on the agreement Exhibit P-3 bears genuine signatures of the defendant, then that will not create any right or interest in the plaintiff in the disputed land when the agreement is a forged document. 8. The learned Counsel for the appellant in the present second appeal has vehemently argued that the learned First Appellate Court has wrongly taken into consideration the finding recorded in the previous suit in judgment Exhibit D-11. In the said suit, the plaintiff was not a party and, therefore the finding recorded therein cannot be used against the plaintiff. It was further contended that since the revenue stamp on the agreement Exhibit P-3 is proved to bear the signatures of Charan Kaur, the agreement to sell is proved to be executed. 9. However, I do not find any substance in the agreement raised by learned Counsel for the appellant. The common interest of the plaintiff Malkiat Singh and his brother Hardev Singh is apparent from the sequence of events detailed by the learned First Appellate Court. Hardev Singh was not alone in resisting the claim of possession by Charan Kaur. 9. However, I do not find any substance in the agreement raised by learned Counsel for the appellant. The common interest of the plaintiff Malkiat Singh and his brother Hardev Singh is apparent from the sequence of events detailed by the learned First Appellate Court. Hardev Singh was not alone in resisting the claim of possession by Charan Kaur. Therefore, the sale deed in pursuance of the settlement was executed in favour of Hardev Singh and his brother present plaintiff on 24.8.1987. If the defendant has any intention of selling the remaining land, the parties could have executed the document at that point of time itself. There is no circumstance on record as to why the defendant Charan Kaur will enter into an agreement to sell her share, the possession of which was given to her only a month earlier. The obvious inference is that the plaintiff wants to deprive the defendant Charan Kaur of the fruits of the decree affirmed in her favour by this Court earlier. The fact that the signatures of Charan Kaur are only on the revenue stamp and no part of her signatures is touching the plain paper on which the agreement is purportedly executed, is a strong circumstance to hold that the revenue stamp has been used on document Exhibit P-3 by removing the same from other document or affixed later on on the said document. The name of scribe is not disclosed in the document and in evidence it has come on record that PW-5 Sukhjeet Singh is neighbour of Malkiat Singh. There is no explanation why Charan Kaur would visit another village for the purpose of execution of the agreement when she was made to part with her half share in favour of Hardev Singh and the present plaintiff. 10. The learned First Appellate Court has discussed the entire evidence to return a firm finding of fact that the agreement to sell Exhibit P-3 is a forged document. With the assistance of learned Counsel for the parties, I have gone through the evidence and find that the view taken by the learned First Appellate Court is a possible view on the basis of evidence led and, therefore, 1 do not find any substantial question of law arises for consideration of this Court in second appeal. Dismissed.