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2017 DIGILAW 1589 (PNJ)

Bhajan Singh v. Kartar Singh

2017-07-26

ANIL KSHETARPAL

body2017
JUDGMENT : ANIL KSHETARPAL, J. C.M.No.8691-C of 2015 Prayer in this application is to condone delay of 277 days in filing the appeal. For the reasons stated in the application, which is supported by an affidavit, the application is allowed and delay of 277 days in filing the appeal is condoned. C.M.No.8692-C of 2015 Prayer in this application is to condone delay of 60 days in refilling the appeal. For the reasons stated in the application, which is supported by an affidavit, the application is allowed and delay of 60 days in re-filing the appeal is condoned. RSA No.3583 of 2015 Plaintiff is in regular second appeal against concurrent findings of fact, dismissing the suit filed by the plaintiff for specific performance of agreement to sell dated 29.10.2005. Learned first appellate court while dismissing the first appeal has recorded the following reasons:- “14. It is no doubt true that the defendant has not disputed the existence of his signatures on the agreement, but it cannot be termed to be a circumstance to conclude the due execution of any such agreement by the defendant. Mere existence of signatures of the defendant on the agreement cannot be termed to be a circumstance to conclude that it was a voluntary and conscious act on his part. The material on record must indicate that the genuine intention of the defendant was to execute the agreement to sell in favour of the plaintiff. 15. Before proceeding further, it may be mentioned that the parties are related to each other. It is emerging in the cross examination of the plaintiff that the defendant is his uncle. Furthermore, the defendant is aged about 92 years and while appearing in the witness box, he has specified his age as 102 years. It has also not been disputed that the litigation was pending between the parties with regard to the partition of the joint property and the same is evident from the copies of the orders Ex.DA to Ex.DD. The suit property is also the subject matter of the litigation between the parties and in such circumstances, it sound improbable that the defendant would have agreed to sell the suit property in favour of the plaintiff. 16. The perusal of the agreement to sell Ex.P1 reveals that the signatures of the defendant have been procured at two places. Such like signatures are appended on the pleadings, petitions, replies etc. 16. The perusal of the agreement to sell Ex.P1 reveals that the signatures of the defendant have been procured at two places. Such like signatures are appended on the pleadings, petitions, replies etc. filed during the course of judicial proceedings. The signatures at second place is procured for the purpose of verification of the pleadings. The reason assigned for appending the signatures at second place is to the effect that the defendant by putting his signatures had acknowledged the cutting which was made in the body of the agreement to sell. In the event, the cutting was to be attested, the signatures of the defendant must have been appended at the place of cutting. During the course of his cross examination, the plaintiff has failed to specify the reason as to why the scribe had procured the signatures of the defendant at two places. It appears that the plaintiff had procured the blank paper bearing the signatures of the defendant at two places and the writing has been adjusted to cover up the signatures at the second place. In such circumstances, the version sought to be put forth by the defendant to the effect that his signatures might have been procured on blank paper by the counsel or the clerk during the course of litigation cannot be rejected. 17. It shall not be out of place to mention here that the agreement to sell has not been scribed by a regular scribe. The plaintiff during his cross examination has not been able to specify as to whether the scribe was a Hindu or Sikh gentleman. It is no doubt true that there is no requirement of law that a document should be scribed by a regular deed writer, but had the agreement to sell in question been scribed by a regular deed writer, the corresponding entry made by him in his register would have lend credence to the version of the plaintiff and add to the authenticity of the agreement to sell. Furthermore, the agreement to sell has not been executed on non-judicial stamp paper and the adhesive stamps worth Rs.300/- have been affixed thereupon. The defendant has examined Waryam Singh DW2 who is working as Assistant in Treasury Office, Ferozepur and he has proved the copy of letter Ex.DW1/A and the notification dated 2nd April, 1997. Furthermore, the agreement to sell has not been executed on non-judicial stamp paper and the adhesive stamps worth Rs.300/- have been affixed thereupon. The defendant has examined Waryam Singh DW2 who is working as Assistant in Treasury Office, Ferozepur and he has proved the copy of letter Ex.DW1/A and the notification dated 2nd April, 1997. As per the letter copy whereof is Ex.DW1/A, the instructions have been issued for the use of special adhesive stamps in lieu of non-judicial stamp papers to the effect that adhesive stamps of small denominations ranging from Rs.1/- to Rs.25/- can be used whenever there is short supply of the non-judicial stamp papers. Furthermore, in terms of the notification, copy whereof is Ex.DW1/B, the special adhesive stamps of the required value and denominations ranging from Rs.1/- to Rs.25/- shall be affixed by the stamp vendor on production of petition paper or sunlit bond paper or any other paper of suitable thickness and the stamp vendor is also required to maintain the record with regard to the sale of special adhesive stamps in the same manner as in the case of non-judicial stamp paper. In the case in hand, the name of the stamp vendor has not been mentioned and seal has not been affixed on the paper on which the adhesive stamps have been affixed. Furthermore, the adhesive stamps for the value exceeding Rs.25/- have been affixed on the paper on which the agreement has been scribed which is not permissible in view of the aforesaid instructions. Even on record of the stamp vendor has not been produced or proved on record. There is nothing on record to indicate the name of the stamp vendor who has sold the stamps or if any corresponding entry was made in the register maintained by him. Even the endorsement with regard to the purchase of adhesive stamps on the agreement to sell does not bear the signatures of the defendant. In such circumstances, the possibility of procuring the adhesive stamps and affixing the same on paper bearing signatures of the defendant in a clandestine manner without his knowledge cannot be ruled out.” 1. Even the endorsement with regard to the purchase of adhesive stamps on the agreement to sell does not bear the signatures of the defendant. In such circumstances, the possibility of procuring the adhesive stamps and affixing the same on paper bearing signatures of the defendant in a clandestine manner without his knowledge cannot be ruled out.” 1. Learned counsel for the appellant has submitted that (i) the agreement to sell has been executed on a plain paper with adhesive stamp affixed thereon, therefore, the stamp duty as required has been paid; (ii) the agreement to sell cannot be ignored merely on the ground that name of scribe has not been mentioned; (iii) appellant has proved the source of earnest money; (iv) even if the parties were in litigation amongst themselves, however, looking at the relationship between the parties, it is quite natural that they entered into the agreement to sell; (v) the defendant-respondent is issueless and therefore he wanted to give the property to the plaintiff-appellant; (vi) defendant has not been able to prove fraud. 2. I have considered the arguments of learned counsel for the appellant. 3. No doubt, adhesive stamps have been used on the plain paper to fulfill the requirement of payment of stamp duty. However, such adhesive stamps can only be used when it is certified by the stamp vendor that stamp papers of the value required are not available. Plaintiff has failed to examine even the stamp vendor who would have throw light on the fact that why the adhesive stamps were used on the plain paper. Defendant has proved that a stamp vendor was not permitted to sell adhesive stamp paper of more than Rs.25/- against one number by examining Waryam Singh and Munshi Kumar Monga. Stamp vendor is bound to maintain a record of stamp papers being sold. It was further stated that the stamp vendor cannot sell any stamp paper of the value of Rs.300/- with adhesive stamp. 4. The next submission of learned counsel for the appellant is that merely because the name of the document writer/scribe has not been disclosed, therefore, agreement to sell cannot be held to be doubtful. In this case, a bare look at the agreement to sell would show that the signatures of the defendant in Gurmukhi script (Punjabi) has been shown at two places. In this case, a bare look at the agreement to sell would show that the signatures of the defendant in Gurmukhi script (Punjabi) has been shown at two places. Signatures in this manner are put normally for the purpose of drafting the pleadings to be filed in the Court in the State of Punjab and Haryana. There is no reason why the signatures of old men, who was more than 90 years, were taken on the left hand side also. In these circumstances, it was a scribe who would have explained why signatures of defendant was got appended on the left hand side of the paper. However, plaintiff has not chosen to examine the scribe. 5. Next argument of learned counsel for the appellant is that plaintiff has proved the source of money paid at the time of agreement to sell as he sold his bus for a sum of Rs.7,20,000/-. The learned first appellate court has recorded that the bus was sold 4/5 years before the alleged agreement to sell. The appellant would not keep such huge amount in cash with him for 4/5 years. 6. Parties in the present litigation are closely related. Defendant is uncle of plaintiff. Since uncle was issueless, there is all likelihood that old men was dependent at this age for his daily needs on his nephew. 7. Learned counsel for the appellant has further submitted that merely because parties were in litigation, therefore, the agreement to sell cannot be held doubtful. 8. I have considered the submissions. Parties to this suit were litigating against each other for quiet some time before the date of agreement to sell. Parties have been fighting for partition of the joint property for quite some time, which is proved from the copies of the order Exhibits DA to DD. Therefore, a plausible view has been taken by the court that if the parties were in litigation, they are not likely to enter into an agreement to sell. 9. Learned counsel has further submitted that defendant has not been able to prove fraud. 10. Taking into consideration the evidence available, as also the statement of Kartar Singh, defendant and Baldev Singh, Ex.-Sarpanch, it is clear that the agreement was result of manipulation. 11. Counsel for the appellant has not pointed out any substantial questions of law, involved in the present appeal. 10. Taking into consideration the evidence available, as also the statement of Kartar Singh, defendant and Baldev Singh, Ex.-Sarpanch, it is clear that the agreement was result of manipulation. 11. Counsel for the appellant has not pointed out any substantial questions of law, involved in the present appeal. Counsel for the appellant has not been able to point out any substantive error in the judgments passed by the courts below which may come within the purview of Section 41 of the Punjab Courts Act, 1918. Therefore, the regular second appeal is ordered to be dismissed.