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2009 DIGILAW 267 (HP)

UJJAGAR SINGH v. SURINDERA KAUR

2009-04-01

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, J. :-This Regular Second Appeal has been directed against the judgment and decree 12.1.1996 passed by the learned Additional District Judge, Nahan in civil appeal No. 37-N/13 of 1992. 2. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit for specific performance of contract in respect of land measuring 2 biswas as detailed in the plaint. The suit was contested by the respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake). The trial court dismissed the suit on 15.5.1992. The plaintiffs preferred an appeal before the Additional District Judge, Nahan. The same stood rejected on 12.1.1996. This Regular Second Appeal has been admitted on the following substantial questions of law: 1. "Whether the admissions made by the Counsel being power of Attorney is binding on the party regarding his thumb impression on the documents. Mere fact that such defendant was proceeded ex-parte and later on engaged some other counsel amounts to automatic withdrawal of such admission? 2. Whether thumb impression of the executant is duly established on the agreement and the receipt for passing sale consideration, has no presumption attached for passing of such sale consideration and due execution of agreement. Can such agreement and receipt be ignored merely on the ground that the scribe of the agreement has not appended his signatures on the said agreement? 3. Whether it was permissible for the courts below to draw adverse inference against the plaintiff-appellants in not producing the scribe who are already died before the evidence of the plaintiff-appellants could commence? 4. Whether the admission of one of the defendant that the plaintiff has raised wall of the house over the suit property lead to an inference that the possession of the plaintiff-appellant was on account of valid sale agreement for valuable consideration?” 3. Mr. Neeraj Gupta, Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable in the eyes of law. His precise contention is that since one Mr. D.C. Khanduja, Advocate had admitted the thumb impression of Bhagel Singh, the contents of agreement Ex.PW-1/A will be deemed to have been admitted. 4. Mr. Rakesh Jaswal, Advocate has supported the judgments and decrees passed by both the courts below. His precise contention is that since one Mr. D.C. Khanduja, Advocate had admitted the thumb impression of Bhagel Singh, the contents of agreement Ex.PW-1/A will be deemed to have been admitted. 4. Mr. Rakesh Jaswal, Advocate has supported the judgments and decrees passed by both the courts below. I have heard the learned counsel for the parties and perused the record carefully. Since all the questions of law are inter-connected, therefore, the same can be conveniently discussed together. 5. The case of the plaintiffs was based on the agreement to sell Ex.PW-1/A. It consists of two parts i.e. Ex.PW-1/A and PW-1/B. Ex.PW-1/A contained the recital regarding the sale of suit land for a consideration of Rs. 16,000/- whereas part Ex.PW-1/B contained the receipt of the sale consideration. The case of the plaintiffs was that Sh. D.C. Khanduja, Advocate has admitted the thumb impression of Sh. Bhagel Singh, the contents of the agreement Ex.PW-1/A will be deemed to have been admitted by Bhagel Singh. Sh. D.C. Khanduja could not admit the correctness of the thumb impression of Bhagel Singh as projected by the plaintiffs for the simple reason that he was not a document expert. He could only identify the signatures of Bhagel Singh if he was conversant with his signatures or handwriting. It is borne out from the record that the statement made by Sh. D.C. Khanduja was also withdrawn subsequently. In fact, Sh. D.P. Gupta, Advocate for Bhagel Singh made a request for the withdrawal of admission. The plaintiffs have also not proved the execution of the agreement Ex.PW-1/A. Neither the agreement nor the receipt was signed by the petition writer Sh. Gupta. He was not examined by the plaintiffs. PW-2 Sawaj Singh is one of the attesting witnesses. He is interested witness for the simple reason that he used to work with Didar Singh, who had filed a case against Bhagel Singh in which appellant Ujjagar Singh was one of the witnesses in that case. PW-2 has deposed that the jamabandi and tatima were with the petition writer, who has scribed Ex.PW-1/A. The fact of the matter is that in Ex.PW-1/A it has been specifically mentioned that tatima and jamabandi of the suit land have been attached. Neither the copy of tatima nor the jamabandi has been attached with the sale deed. PW-2 has deposed that the jamabandi and tatima were with the petition writer, who has scribed Ex.PW-1/A. The fact of the matter is that in Ex.PW-1/A it has been specifically mentioned that tatima and jamabandi of the suit land have been attached. Neither the copy of tatima nor the jamabandi has been attached with the sale deed. At the back of agreement Ex.PW-1/A, the name of Baldev Singh instead of Ujjagar Singh is mentioned. Sh. Baldev Singh is son of Sh. Balwant Singh and the plaintiffs’ father name is Sh. Dulia Singh. It falsifies the case of the plaintiffs that the agreement was scribed on the papers purchased by him from the document writer on his name. Sh. Bhagel Singh has neither signed nor put his thumb mark at page-2 of the agreement. Sh. Ujjagar Singh has only put his signatures. The marginal witnesses have not put their signatures on this agreement though their signatures were present in receipt Ex.PW-2/C. 6. Accordingly, in view of the observations made hereinabove, the plaintiffs have failed to prove the execution of agreement Ex.PW-1/A. The stamp papers were not purchased in the name of the plaintiffs. The plaintiffs have not produced the document writer. PW-2 was an interested witness. The details of the property have not been mentioned in the plaint with precision. The so-called admission made by Sh. D.C. Khanduja stood withdrawn by Mr. D.P. Gupta, Advocate. As noticed above, Mr. Khanduja could not identify the thumb impression of Sh. Bhagel Singh. In view of this factual matrix the judgments cited by Mr. Neeraj Gupta, Advocate, i.e. Nagindas Ramdas versus Dalpatram Ichharam alias Brijram and others, (1974) 1 SCC 242 and Tamil Nadu Electricity Board and another versus N. Raju Reddiar and another, (1996) 4 SCC 551 are not applicable in the facts and circumstances of the present case. 7. Consequently, there is no merit in this Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs.