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2012 DIGILAW 965 (PNJ)

Harvel Singh v. Ranjit Singh

2012-07-23

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - Defendant-Harvel Singh who was successful in the trial court but has been unsuccessful in the lower Appellate Court has filed this second appeal. 2. Respondents/plaintiffs Ranjit Singh and Sarabjit Singh filed suit against defendant-appellant for recovery of Rs.4,00,000/- alleging that the defendant agreed to sell land measuring 1 kanal 10 marlas comprised of khasra Nos.84 to 87 to the plaintiffs vide agreement dated 29.07.1999 @ Rs.15,000/- per marla and received Rs.2,00,000/- as earnest money but later on, it turned out that defendant was not owner of the aforesaid land. Accordingly plaintiff claimed refund of Rs.2,00,000/- as earnest money and also claimed Rs.2,00,000/- as damages. 3. The defendant broadly denied the plaint averments. The defendant denied having ever entered into the impugned agreement or having received Rs.2,00,000/- as earnest money. The defendant also pleaded that he had agreed to moretage his other land measuring 2 kanals 5 marlas out of khasra Nos.9//18 (8-0) and 83 (1-19) with the plaintiff for Rs.20,000/- and for execution of mortgage deed, plaintiffs brought the defendant to Tehsil compound on 24.08.1999, but instead of getting mortgage deed, the plaintiffs obtained sale deed from the defendant regarding the said 2 kanals 5 marlas land in favour of plaintiff No.1 and mother of plaintiff No.2 for consideration of Rs.1,25,000/- although plaintiffs paid Rs.20,000/- only to the defendant. On coming to know of the said fraud, the defendant gathered respectables and thereupon the said two kanals 5 marlas land was retransferred to defendant’s wife Charan Kaur vide registered sale deed dated 21.10.1999 and mortgage money was refunded to the plaintiffs. 4. Learned Civil Judge (Junior Division), Jalandhar vide judgment and decree dated 18.10.2007, dismissed the plaintiffs’ suit. However, first appeal preferred by plaintiffs has been allowed by learned Additional District Judge, Jalandhar vide judgment and decree dated 04.09.2009 and thereby plaintiffs’ suit has been decreed for recovery of earnest money of Rs.2,00,000/- and pre-suit period interest of Rs.12,000/- along with further interest @ 6% per annum from the date of filing of suit till recovery on the principal amount only. Feeling aggrieved, defendant has filed this second appeal. 5. I have heard learned counsel for the parties and perused the case file. 6. Counsel for the appellant contended that defendant-appellant has examined Buta Singh, DW-1 who was alleged witness of the impugned agreement. Feeling aggrieved, defendant has filed this second appeal. 5. I have heard learned counsel for the parties and perused the case file. 6. Counsel for the appellant contended that defendant-appellant has examined Buta Singh, DW-1 who was alleged witness of the impugned agreement. He was deposed that no such agreement was entered in to between the parties. Counsel for the appellant also pointed out that plaintiffs have not examined any attesting witness of the agreement to prove its execution whereas scribe of the agreement Charanjit Singh, Deed Writer PW-1 stated that he did not know the parties personally. It was thus contended that finding of the lower Appellate Court regarding execution of the agreement is perverse and based on misreading and misappreciation of evidence and finding of the trial Court, to the contrary, has been reversed by the lower appellate Court without sufficient ground. 7. On the hand, counsel for plaintiffs/respondents contended that plaintiffs have examined scribe of the agreement who has stated about due execution of the agreement. Plaintiff No.1 Ranjit Singh has also stepped into witness box and stated about execution of the agreement and, therefore, execution of the agreement and payment of earnest money stands proved. It was also argued that defendant in the written statement did not deny his thumb impressions on the impugned agreement. 8. I have carefully considered the rival contentions. Onus was on the plaintiffs to prove due execution of the impugned agreement by the defendant and payment of earnest money to him by the plaintiffs. However, plaintiffs have failed to discharge the said onus because Charanjit Singh Sodhi PW-1 scribe of the agreement examined by the plaintiffs has categorically stated that he did not know the parties personally. Consequently, from his testimony, it cannot be said that the person who executed the impugned agreement was the defendant. Then we are left with solitary statement of plaintiff No.1, which is not sufficient to establish the case of the plaintiffs. On the contrary, defendant’s evidence far outweighs the evidence of the plaintiffs including testimony of plaintiff No.1. Defendants have examined Buta Singh one of the attesting witnesses of the agreement. He has categorically deposed that the impugned agreement was not executed in his presence by the defendant nor the parties entered into the said agreement in his presence. On the contrary, defendant’s evidence far outweighs the evidence of the plaintiffs including testimony of plaintiff No.1. Defendants have examined Buta Singh one of the attesting witnesses of the agreement. He has categorically deposed that the impugned agreement was not executed in his presence by the defendant nor the parties entered into the said agreement in his presence. He has stated that his signatures were obtained on the agreement in August, 1999 by plaintiff No.1. Defendant himself has also appeared in the witness box and denied having executed the aforesaid agreement and denied having received the alleged earnest money from the plaintiffs. Thus evaluating the evidence of both sides, it emerges that the evidence led by the defendant is more reliable and sufficient whereas evidence led by the plaintiffs is not sufficient to prove their case. 9. It is also significant to notice that the impugned agreement purports to bear thumb impressions of the defendant. Science of comparison of finger prints is perfect science. In spite thereof, plaintiffs did not examine any finger print expert to prove that the impugned agreement bears thumb impressions of the defendant, on comparison with his specimen or standard thumb impressions. Defendant having denied the agreement in toto was not required to plead separately that the agreement did not bear his thumb impressions. The defendant categorically denied having entered into impugned agreement or having executed the same. This denial included denial of his alleged thumb impressions on the agreement. The plaintiff having failed to examine any attesting witness of the agreement could at least examine finger print expert to prove the thumb impressions of the defendant on the impugned agreement. If it had been done, then said evidence coupled with testimony of the scribe could possibly prove execution of the agreement because identity of the executant would have been established by testimony of finger print expert whereas execution of the agreement could then be said to be proved by the testimony of the scribe. However, the plaintiffs failed to prove the identity of executant of the impugned agreement and failed to prove that it was executed by the defendant. 10. However, the plaintiffs failed to prove the identity of executant of the impugned agreement and failed to prove that it was executed by the defendant. 10. It is also significant to notice that sale deed dated 24.08.1999 of 2 kanals 5 marlas land was allegedly executed by defendant in favour of plaintiff No.1 and mother of plaintiff No.2 but the said land was retransferred to wife of defendant by way of sale deed dated 21.10.1999 i.e. within two months. This significant circumstance lends credence to the defendant’s version that even the aforesaid sale deed had been obtained from him by the plaintiffs by playing fraud. Consequently the plaintiffs’ scanty and sketchy evidence regarding impugned agreement also becomes further doubtful and suspicious. 11. For the reasons aforesaid, I find that plaintiffs have miserably failed to prove execution of the impugned agreement by the defendant and payment of earnest money to him. Finding of the lower appellate Court, to the contrary, is perverse and illegal and is based on misreading and misappreciaion of evidence giving rise to substantial question of law to this effect for determination in this second appeal. The lower appellate Court reversed the finding of the trial Court, to the contrary, without any sufficient ground. Accordingly, aforesaid substantial question of law is answered in favour of defendant-appellant for the reasons already recorded hereinbefore. 12. Resultantly the instant second appeal is allowed. Impugned judgment and decree of the lower Appellate Court are set aside. Judgment and decree of the trial Court, dismissing the plaintiffs’ suit, are restored. However, parties are left to suffer their respective costs throughout.