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2012 DIGILAW 685 (PNJ)

Harjinder Singh @ Rajinder Singh v. Karam Chand

2012-05-08

JASWANT SINGH

body2012
JUDGMENT Mr. Jaswant Singh, J (Oral) - CM No.5453-C/2012 has been filed under section 5 of the Limitation Act seeking condonation of 80 days delay in filing the appeal. The application is supported by an affidavit of the appellant. For the reasons stated in the application, which are just and sufficient, the application is allowed and delay in filing the appeal is condoned. CM No.5454-C/2012 is allowed and permission is granted to make good the deficiency in payment of Court fee. CM No.5455-C/2012 has been filed under Order 41 Rule 5 RSA No.1971/2012(O&M) 2 CPC for stay of the impugned judgment and decree dated 15.10.2009 passed by the Additional Civil Judge (Sr.Div.) Samrala. RSA No.1971/2012. Defendant no.1/appellant/vendor is in second appeal against the judgments and decrees passed by both the courts below whereby the suit filed by plaintiff Karam Chand(respondent no.1) for specific performance of the agreement to sell dated 3.12.2002 was decreed by the trial court and affirmed in appeal. 2. Facts necessary for adjudication of the present second appeal are that respondent no.1-Karam Chand (hereinafter referred to as the plaintiff) filed a suit for possession by way of specific performance on 9.8.2003 with consequential relief of permanent injunction. It was pleaded that defendant vendor had executed an agreement to sell dated 3.12.2002 regarding sale of land in his favour measuring 2 kanals 14 marlas i.e. 1/3rd share out of the suit land fully described in the head note of the plaint, on payment of a total sale consideration of Rs.80,000/-. Earnest money of Rs.40,000/- was paid at the time of execution of the agreement to sell dated 3.12.2002. The target date for execution of the sale deed was on or before 30.6.2003. It was further averred that on 25.6.2003, the time for execution and registration of the sale deed was extended from 30.6.2003 to 29.12.2003 and another amount of Rs.20,000/- was paid to defendant no.1. The execution of the agreement to sell dated 3.12.2002 and the payment of earnest money of Rs.40,000/- on that date and further the RSA No.1971/2012(O&M) 3 extension of the target date made on 25.6.2003 with further payment of Rs.20,000/- was made in the presence of the witnesses. The execution of the agreement to sell dated 3.12.2002 and the payment of earnest money of Rs.40,000/- on that date and further the RSA No.1971/2012(O&M) 3 extension of the target date made on 25.6.2003 with further payment of Rs.20,000/- was made in the presence of the witnesses. It was further stated that the plaintiff was throughout ready and willing to perform his part of the contract whereas the defendant illegally executed a sale deed dated 16.7.2003 in favour of his brother-defendant no.2, Sukhwinder Singh, which resulted in plaintiff filing the instant suit on 9.8.2003. 3. Upon notice, defendant no.1/appellant (vendor) filed his written statement denying the execution of the agreement to sell dated 3.12.20021 and receipt of any amount from the plaintiff. It was further asserted that the agreement to sell is a forged and fabricated document without consideration. Defendant no.2 claimed himself to be bonafide purchaser for consideration without notice from Rajinder Singh of the suit land. On the basis of the pleadings issues were framed. The material issue no.1 for ready reference is as under:- “1. Whether the plaintiff is entitled to possession by way of specific performance of contract dated 3.12.2002? OPP 4. Plaintiff proved the agreement to sell dated 3.12.2002 (Ex.P2) by leading evidence of the attesting witness and Scribe PW1 Narinder Pal, PW2 Vishesh Kumar in respect of the writing dated 25.6.2003 (Ex.P3) extending the target date from 30.6.2003 to 29.12.2003. PW3 Surinder Singh the attesting witness of the extension of the writing dated 25.6.2003 also deposed in favour of the plaintiff. Plaintiff himself appeared as PW5 in support of his version as per the plaint. 5. Both the defendants besides appearing as DW1 and DW2 did not lead any evidence in support of their pleas moreso by defendant no.1-vendor, in support of his plea of forged and fabricated document. The learned trial court rejected the plea of bona fide purchaser since admittedly both the brothers reside together and it was held that it was not believable that defendant no.2 would not be aware of the agreement to sell moreso, when the property was in the same village. The learned trial court further drew an adverse inference against defendant no.1 on his refusal to appear and give thumb impression for comparison despite orders dated 4.12.2004 directing him to do so on the application moved by the plaintiff. The learned trial court further drew an adverse inference against defendant no.1 on his refusal to appear and give thumb impression for comparison despite orders dated 4.12.2004 directing him to do so on the application moved by the plaintiff. Learned trial court on the basis of evaluation of the evidence decreed the suit of the plaintiff in toto. The findings of the trial court were affirmed by the appellate court. 6. After hearing learned counsel for the defendant no.1/ appellant I find no merit in this appeal. I find that the plaintiff through the evidence of PW1 Narinder Pal and his own evidence as PW5 has proved the due execution of the agreement to sell dated 3.12.2002 and payment of sale consideration of Rs.40,000/- to the defendant no.1/ appellant. PW1 has categorically deposed that he had scribed the agreement at the instance of the defendant and after scribing the same he read over the same and explained the same to the parties and witnesses present. Defendant no.1 thereafter put his signatures and RSA No.1971/2012(O&M) 5 thumb impression on the same and plaintiff Karam Chand put his signatures in Punjabi. He has also deposed that the agreement to sell was entered in his register at Sr.no.666 dated 6.12.2003 where parties and the witnesses namely Bhajan Singh put their signatures and thumb impressions. The other attesting witness PW4 Bhajan Singh has supported the version of the plaintiff, who has appeared as PW5. Still further, PW2 Vishesh Kumar has proved the writing dated 25.6.2003 Ex.P3 who has deposed that the writing was scribed at the instance of the parties and in the presence of the witnesses. PW3 Surinder Singh has corroborated the version of PW2 and PW5 in respect of writing Ex.P3 and also deposed in respect of payment of further sum of Rs.20,000/- to defendant no.1 by the plaintiff. It is further apparent that the learned trial court has rightly drawn an adverse inference against the defendant who has refused to appear for giving his thumb impression for comparison in support of his plea of forged and fabricated agreement to sell. It is further evident that defendant led no evidence in support of his plea of forged and fabricated document. 7. It is further evident that defendant led no evidence in support of his plea of forged and fabricated document. 7. This Court in Santa Singh v. Binder Singh and others, 2007(1) RCR (Civil) 162 and Jora Singh v. Lakhwinder Kumar and others, [2010(3) Law Herald (P&H) 2517] : 2011(1) RCR (Civil)130 has held that when the defendant, in a suit for specific performance takes up the plea of denial of their signatures on the agreement to sell and the agreement to sell to be a forged and fabricated document and in the eventuality of their failing to prove the same, no equity accrues to them. 8. In view of the above, no question of law much less substantial question of law arises for consideration in this appeal and the same is hereby dismissed. 9. Since the main appeal itself has been dismissed, CM No.5455-C/2012 filed under Order 41 Rule 5 CPC for stay of the impugned judgment and decree dated 15.10.2009 passed by the Additional Civil Judge (Sr.Div.) Samrala also stands dismissed.