Judgment Mr. Vikram Aggarwal , J. CM-1931-C-2023 The present application has been preferred under Order 41 Rule 27 CPC for producing certain documents by way of additional evidence. It has been averted in the application that the applicant-appellant intends to produce share certificate of the flat owned by Jaspal Singh, husband of appellant-defendant No.1 on the first floor of the same society, sale agreement dated 07.09.2013 executed by Jaspal Singh in favour of Gurdev Kaur with regard to the said flat and the letter issued by the President of the Society regarding the transfer of the said flat as also some other documents to prove that the flat on the first floor had been sold by the husband of defendant No.1 to purchase the flat in dispute. The application has been opposed by way of a reply. Learned counsel for the parties have argued in terms of the averments made in the application and the reply respectively. I have considered the submissions made by learned counsel for the parties but find no merit in the application. The documents were well within the knowledge of the appellant-defendant and could have been produced before the Courts below. No plausible reason has been given for non-production of these documents before the Courts below. It is not the case of the appellant-defendant that despite due diligence these documents could not be produced before the Courts below. Even otherwise, the documents would not be essential for the just decision of the case. Under the circumstances, I do not find any merit in the present application and the same is accordingly dismissed. Main Case 1. This is defendants second appeal against concurrent findings recorded by both the Courts below. For the sake of convenience, parties shall be referred as per their original status. The District Judge, SAS Nagar, Mohali, vide judgment and decree dated 12.10.2022 dismissed the appeal filed by the defendant against the judgment and decree dated 25.04.2018 passed by the Civil Judge (Junior Division) SAS Nagar, Mohali. Vide judgment dated 25.04.2018, the Court of Civil Judge (Junior Division), SAS Nagar, Mohali decreed the suit filed by the plaintiff. 2. The dispute is with regard to a flat bearing No.2460, Block-B, Danga Pirat Co-operative Society, Sector 67, SAS Nagar, Mohali (hereinafter referred to as ‘the disputed flat’). The disputed flat was owned by the plaintiff Manjeet Singh Nanda. Vide judgment dated 25.04.2018, the Court of Civil Judge (Junior Division), SAS Nagar, Mohali decreed the suit filed by the plaintiff. 2. The dispute is with regard to a flat bearing No.2460, Block-B, Danga Pirat Co-operative Society, Sector 67, SAS Nagar, Mohali (hereinafter referred to as ‘the disputed flat’). The disputed flat was owned by the plaintiff Manjeet Singh Nanda. On 04.03.2014, the plaintiff received a telephonic call from the society that someone had taken over the possession of the disputed flat by breaking open its locks. The plaintiff, who was based in Meghalaya rushed to Mohali and found that defendant No.1- Veerpal Kaur was in possession of the disputed flat. On enquiry, she disclosed that she had purchased the flat from one Gurmeet Singh (defendant No.2) by way of an agreement to sell dated 28.10.2013 for a sale consideration of Rs.55 lakhs. The plaintiff made enquiries from the office of the society and found that there was one agreement to sell dated 18.03.2009 alleged to have been executed by the plaintiff in favour of defendant No.2 and on the basis of this agreement, defendant No.2 got the ownership of the disputed flat transferred in his favour and then executed agreement to sell dated 28.10.2013 in favour of defendant No.1 and the disputed flat was transferred in her favour. 2.1 At the instance of the plaintiff, an enquiry was conducted by the office of the Registrar Cooperative Societies and it was found that the agreement to sell dated 18.03.2009 alleged to have been executed by the plaintiff in favour of Gurmeet Singh-defendant No.2 was a forged and fabricated document and that no person by the name of Gurmeet Singh existed. Under the circumstances, the transfer in the name of defendant No.2 and the subsequent transfer in the name of defendant No.1 was cancelled. 2.2 The plaintiff instituted a suit for declaration to the effect that he was the owner of the disputed flat and that the agreement to sell dated 18.03.2009 alleged to have been executed by him in favour of defendant No.2 was a forged and fictitious document. 2.2 The plaintiff instituted a suit for declaration to the effect that he was the owner of the disputed flat and that the agreement to sell dated 18.03.2009 alleged to have been executed by him in favour of defendant No.2 was a forged and fictitious document. A further declaration was sought that the agreement to sell dated 28.10.2013 executed by defendant No.2 in favour of defendant No.1 was illegal, null and void and that the affidavit executed by defendant No.2 on 21.01.2014 was also illegal, null and void and both documents had no effect on the ownership rights of the plaintiff. Relief of possession was also sought. 2.3 The case set up by the plaintiff was that the disputed flat had been allotted to the plaintiff in 2001 and regular payments had been made by him w.e.f. 2002 to 2007. Possession was handed over to the plaintiff by the society. The plaintiff carried out the necessary renovations. Thereafter, the facts of a telephonic call having been received by him etc. were given in the plaint which are not being repeated. The matter was reported to the police by the plaintiff and FIR No.68 dated 24.06.2014 was registered against defendant No.2 and Iqbal Singh, Secretary of the Society under Sections 420, 465, 467, 468, 471, 120-B IPC and an enquiry was also conducted in which it was found that the agreement to sell dated 18.03.2009 had never been executed and that no one by the name of Gurmeet Singh existed and that in fact Gurmeet Singh was actually Jaspal Singh husband of defendant No.1. 3. In the written statement, defendant No.1 took a stand that the agreement to sell dated 28.10.2013 had duly been executed in her favour by the defendant No.2 and that a sale consideration of Rs.55 lakhs had passed to defendant No.2. She had taken over the possession of the disputed flat and had been residing in the same as owner with her family members. On the basis of the affidavit dated 21.01.2014 executed by defendant No.2, allotment letter dated 21.01.2014 was issued in her favour and share certificate regarding the disputed flat was also issued in her favour. She also took a stand that she had deposited the admission fee, transfer fee and other pending dues and a receipt had duly been issued in her favour. She also took a stand that she had deposited the admission fee, transfer fee and other pending dues and a receipt had duly been issued in her favour. It was averted that the electricity meter was also installed in her name on 05.03.2014. She had also filed a suit for permanent injunction against the plaintiff which was pending. It was averred that she had spent a sum of Rs.8 lakhs on finishing of the disputed flat. She had purchased the disputed flat after making bonafide inquiries from defendant No.2 and the society and, therefore, she was a bonafide purchaser with consideration. 4. From the pleadings of the parties, the trial Court framed the following issues:- “1. Mether the plaintiff is entitled for declaration as prayed fork OPP 2. Mether the plaintiff has not come to the court with clean hands? OPD 3. Mether the suit is not maintainable? OPD 4. Mether the plaintiff has no locus standi to file the present suit? OPD 5. Mether the plaintiff has suppressed the true facts from the court? OPD 6. Relief. “ 5. Parties led their respective evidence. 6. After considering the evidence, the trial Court decreed the suit. An appeal was filed which was also dismissed by the first Appellate Court leading to the filing of the present regular second appeal. 7. I have heard learned counsel for the appellants as also learned counsel for the caveators and have also perused the record which was duly summoned. 8. Mr. Kanwaljit Singh, learned senior counsel strenuously urged that both the Courts below had gravely erred in non-suiting the appellant-plaintiff who was a bona fide purchaser of the disputed flat for consideration. Learned senior counsel took the Court through the judgments of the Courts below and the entire oral and documentary evidence led on the record of the case. It was submitted that it was the plaintiff who had challenged the agreement to sell dated 18.03.2009 and the agreement to sell dated 28.10.2013 and the least that the plaintiff could have done was to get his signatures on the agreement to sell dated 18.03.2009 verified. It was submitted that it was the plaintiff who had challenged the agreement to sell dated 18.03.2009 and the agreement to sell dated 28.10.2013 and the least that the plaintiff could have done was to get his signatures on the agreement to sell dated 18.03.2009 verified. If the stand of the plaintiff was that the agreement was a forged and fabricated document, he should have got his signatures on the same verified and if the report came that it were not the signatures of the plaintiff, he would have some case but no such step was taken. No attesting witness of the agreement to sell was examined nor was any record of the notary public produced. Learned senior counsel submitted that on the contrary, the defendant had produced the attesting witness of the agreement to sell and had also produced on record the receipts Ex.D2 and D3 vide which payment had been made by defendant No.1 to defendant No.2. 8.1. Learned senior counsel submitted that the electricity connection was in the name of defendant No.1 which would also show that it was defendant No.1 who was in possession of the disputed flat as its owner. Learned senior counsel submitted that the onus to prove issue No.1 was on the plaintiff and, therefore, it was for the plaintiff to prove by leading cogent evidence that the agreement to sell dated 18.03.2009 was a forged and fabricated document. 8.2. Learned senior counsel submitted that the stamp paper on which the agreement to sell dated 18.03.2009 was executed was purchased from Assam meaning thereby that it was the plaintiff who had purchased the same. On this point, no cross-examination was conducted. It was contended that defendant No.1 duly stepped into the witness box as DW1 and her husband Jaspal Singh appeared as DW2 and nothing came in their cross- examination which could have created any doubt in their case. 8.3. Learned senior counsel submitted that defendant No.1 had sold her flat on the first floor and wanted to produce additional evidence to prove this fact that after selling this flat, she purchased the disputed flat which is on the ground floor. In support of his contentions, learned senior counsel placed reliance upon a judgment of Hon’ble Apex Court in Civil Appeal No. 6222 of 2000 titled as Hardev Singh vs. Gurmail Singh {Dead) by LRs decided on 02.02.2007. In support of his contentions, learned senior counsel placed reliance upon a judgment of Hon’ble Apex Court in Civil Appeal No. 6222 of 2000 titled as Hardev Singh vs. Gurmail Singh {Dead) by LRs decided on 02.02.2007. He also placed reliance upon the judgments of this Court in RSA No.2792 of 2016 titled as Taran Singh and others Vs. Ram Malik and another decided on 07.09.2016 and RSA No.4878 of 2015 titled as Manjit Singh Vs. Kuldip Kaur and others decided on 24.05.2016. 9. On the other hand, learned counsel representing the respondents-caveators submitted that there is no illegality or infirmity in the findings recorded by the Courts below. It was contended that defendant No.2 did not step into the witness box nor was he produced by defendant No.1. Learned counsel contended that if defendant No.2 was actually existing, he could have been produced by defendant No.1 to prove her case. It was contended that once the plaintiff had taken a stand that the agreement to sell dated 18.03.2009 was a forged and fabricated document, the onus shifted upon the defendants to prove that it was a genuine document. Learned counsel contended that once the agreement was not in possession of the plaintiff, it was not possible for him to prove its genuineness or otherwise. Learned counsel submitted that in fact the original document i.e. the original of the agreement to sell dated 18.03.2009 never came on record and, therefore, in the absence of the same, it could not be proved to be genuine or otherwise. It was submitted that defendant No.1 did not produce any bank transaction on record to show that she was in possession of Rs.55 lakhs to pay as sale consideration for the disputed flat. Learned counsel also referred to the judgments of the Courts below and the record to contend that the view taken by the Courts below is the correct view. 9.1. It was further submitted that as per the provisions of Section 103 of the Indian Evidence Act, the burden to prove the agreements would be on defendant No.1 since she was claiming a right from the agreement to sell. 9.2. 9.1. It was further submitted that as per the provisions of Section 103 of the Indian Evidence Act, the burden to prove the agreements would be on defendant No.1 since she was claiming a right from the agreement to sell. 9.2. Learned counsel further contended that no ownership could have been conveyed only by way of an agreement to sell and that the transaction would be hit by the ratio laid down by the Hon’ble Apex Court in the case of Suraj Lamp and Industries Pvt. Ltd’s Vs. State of Haryana and another 2012 AIR (Supreme Court) 206 and the provisions of Section 54 of the Transfer of the Property Act, 1882. 9.3. Learned counsel contended that after a thorough enquiry, the disputed flat was reverted back in the name of the plaintiff which in itself shows that the agreements to sell being relied upon by defendant No.1 were forged and fabricated documents. Learned counsel submitted that defendant No.1 had never challenged this action of the society in restoring the ownership of the disputed flat in the name of the plaintiff. In support of his contentions, learned counsel placed upon the judgments of Hon’ble Apex Court in Suraj lamp and Industries PvL Ltd’s case (supra) and Parimal Vs. Veena @ Bharti 2011 AIR (Supreme Court) 1150. 10. I have given my thoughtful consideration to the submissions made by learned counsel for the parties. 11. Before adverting to the merits of the appeal, it would be essential to observe that that the requirement of framing of a substantial question of law in second appeal in terms of the provisions of Section 100 of the Code of Civil Procedure and as had been laid down in various pronouncements by the Hon’ble Apex Court including Hero Vinoth (minors versus Seshammal 2006 (5) SCC 545 , was subsequently held to be not there by the Hon’ble Apex Court. It was held that in the States of Punjab and Haryana, it is the provisions of the Punjab Courts Act, 1918 which would be applicable and, therefore, Section 100 CPC would not hold the field and, accordingly, there would be no requirement of framing substantial question of law in second appeal. With regard to the States of Punjab and Haryana, it was so held in Kirodi (Since Deceased) through his Lr. Versus Ram Parkash & Ors. 2019 (3) R.C.R. (Civil) and Satyender and Ors. With regard to the States of Punjab and Haryana, it was so held in Kirodi (Since Deceased) through his Lr. Versus Ram Parkash & Ors. 2019 (3) R.C.R. (Civil) and Satyender and Ors. Versus Saroj and Ors. 2022 (12) Scale 92 respectively. 12. It is indeed strange that the disputed flat was transferred in the name of defendant No.1 on the basis of an agreement to sell alone dated 28.10.2013. Before that, the disputed flat was transferred in the name of defendant No.2 again on the basis of an agreement to sell dated 18.03.2009. Whether properties can be transferred on the basis of only agreement to sell would be the first question which would arise. During the course of arguments, it was stated that this is the procedure which is followed in societies. The same does not appeal to logic. In Suraj Lamp and Industries Pvt. LU’s case (supra), it was held by the Hon’b1e Apex Court that no immovable property can be legally transferred or conveyed through a General Power of Attorney, agreement to sell or Will. The Hon’ble Apex Court examined the provisions of Section 5, 53A and 54 of the Transfer of Property Act, 1882 as also Section 17 of the Registration Act, 1908 in arriving at the said conclusion. It was held that an immovable property can be legally and lawfully transferred only by way of a registered deed of conveyance. In any case, no issue was framed in this regard. In view of the same, this Court refrains from delving any further into the said issue. However, the legal principle as laid down by the Hon’ble Apex Court has to be taken note of. 12.1 When the plaintiff came to know that somebody had taken over the possession of the disputed flat, he rushed to Mohali and submitted a complaint to the office of Registrar of Co-operative Societies. An enquiry was conducted. The enquiry report is on record as Ex.P1. PW1 Amrik Singh, Inspector of Co-operative Societies, Mohali stepped into the witness box and deposed about the enquiry proceedings. In his examination-in- chief, which was by way of an affidavit Ex.PW1/A, the witness deposed that Iqbal Singh, Secretary of the Society had produced the record pertaining to disputed flat before him. The enquiry report is on record as Ex.P1. PW1 Amrik Singh, Inspector of Co-operative Societies, Mohali stepped into the witness box and deposed about the enquiry proceedings. In his examination-in- chief, which was by way of an affidavit Ex.PW1/A, the witness deposed that Iqbal Singh, Secretary of the Society had produced the record pertaining to disputed flat before him. It was found by the witness in his enquiry that the disputed flat had been transferred in the name of defendant No.2 on the basis of a forged and fictitious agreement to sell dated 18.03.2009. It was found that when the flat was transferred in the name of defendant No.2, the laid down procedure was not followed. The seller was not present. No request letter on behalf of the seller i.e. the plaintiff was given to the society. Signatures of the seller i.e. the plaintiff were not obtained. In fact, the transfer in the name of defendant No.2 was also in the year 2014 which also goes unexplained. If the agreement was of the year 2009 then why the disputed flat was not transferred in the name of defendant No.2 till 2014 has not been explained. Still further, despite repeated notices, defendant No.2 did not appear before the inquiry officer. Under the circumstances, the inquiry officer recommended that the allotment in favour of defendant No.2 be cancelled. No doubt in the cross-examination, he stated that he had not got the signatures of defendant No.2 verified from a handwriting expert. However, once the original of the agreement was not available, the signatures, in any case, could not have been got verified. 12.2 Apart from this, Jagjit Singh Kang who had been the President of the society appeared as PW2. He deposed about the membership of the plaintiff, payments made by him, share certificate issued in his favour etc. He also stated that defendant No.1 had come to their office alongwith her husband and she produced original agreement to sell dated 18.03.2009 before him. A photocopy was submitted and the original was taken back by defendant No.1 with the promise that she would produce the same at a later stage but, thereafter, did not produce it before the society. It was opined that signatures of the plaintiff had been forged by way of scanning. A photocopy was submitted and the original was taken back by defendant No.1 with the promise that she would produce the same at a later stage but, thereafter, did not produce it before the society. It was opined that signatures of the plaintiff had been forged by way of scanning. He also deposed that the plaintiff had not appeared in their office at the time of transfer of the disputed flat in favour of defendant No.2. In fact defendant No.2 also never appeared and only defendant No.1 appeared in their office with her husband. As per the witness, he asked defendant No.1 a number of times to produce defendant No.2 but she did not produce defendant No.2 in their office. 12.3 The plaintiff also stepped into the witness box and deposed as per his averments in the plaint. 12.4 Defendant No.1 stepped into the witness box as DW1 and also examined her husband as DW2. In her cross-examination, defendant No.1 admitted that she had never met defendant No.2 nor she knew who he was. It is quite strange that defendant No.1 had never met the person with whom the agreement to sell was executed and to whom a sum of Rs.55 lakhs had been paid. This definitely raises an eyebrow and makes the whole thing suspicious. 12.5 Another thing which goes against defendant No.1 is that the entire payment is alleged to have been made in cash. The receipts do not inspire any confidence. There is no evidence on record to prove that defendant No.1 was in possession of a huge sum of Rs.55 lakhs at the relevant time. 12.6 What goes most against defendant No.1 is the fact that defendant No.2-Gurmeet Singh was never produced anywhere. He was not produced before the office of the society nor did he step into the witness box. In fact, he came in the enquiry held by the office of the Registrar, Co-operative Societies that no person by the name of Gurmeet Singh existed and that Gurmeet Singh was in fact Jaspal Singh, husband of defendant No.1. The record of the trial Court shows that efforts were made to serve defendant No.2. However repeatedly, the report was that the address was incomplete. Finally, defendant No. 2 was served by way of publication but no one appeared. He was accordingly proceeded against ex-parte on 13.05.2015. The record of the trial Court shows that efforts were made to serve defendant No.2. However repeatedly, the report was that the address was incomplete. Finally, defendant No. 2 was served by way of publication but no one appeared. He was accordingly proceeded against ex-parte on 13.05.2015. Even before the first Appellate Court, efforts were made to serve him. Again the report was that the address was incomplete. Ultimately, service to defendant No.2 was dispensed with. If defendant No.2 was actually existing, the easiest way for defendant No.1 was to produce defendant No.2 into the witness box and it would have been the end of the matter. Defendant No.2 would have deposed about the previous agreement to sell dated 18.03.2009 as also the subsequent agreement to sell dated 28.10.2013. If defendant No.2 had sold the disputed flat to defendant No.1, the least which defendant No.1 could have done was to produce defendant No.2 before the Court. Since it was not done, an adverse inference deserves to be drawn against defendant No.1. 12.7 Another thing which needs to be noticed here is that a suit for permanent injunction was filed by defendant No.1 against the plaintiff which is stated to have been dismissed. It was so stated by learned counsel for the plaintiff during the course of arguments and not denied by learned counsel representing the defendants. 13. Both the Courts below examined the matter in detail and recorded concurrent findings of facts in favour of the plaintiff. This Court does not find any reason to interfere in the concurrent findings of facts recorded by both the Courts below. The plea that defendant No.1 was a bona fide purchaser for consideration is also devoid of merit in view of the reasons given in the preceding paragraphs. 14. I have gone through the judgments relied upon by learned counsel for the parties. In so far as the judgments referred by learned senior counsel representing the appellant-defendant are concerned, they would not come to her aid. 14. I have gone through the judgments relied upon by learned counsel for the parties. In so far as the judgments referred by learned senior counsel representing the appellant-defendant are concerned, they would not come to her aid. In Hardev Singh’s case (supra), the Hon’b1e Apex Court, while examining the provisions of Section 41 of the Transfer of Property Act, 1882 held that where the transferor of a property is the ostensible owner and he is so by the consent, express or implied, of the real owner, the transfer is for consideration and the transferee has acted in good faith, such a person would be protected and that such transfer shall not be voidable on the ground that the transferor was not authorized to make it. This judgment would not apply to the facts of the present case because it is well settled that fraud vitiates everything. In the present case, it is clear that defendant No.1 had played a fraud with the plaintiff. The biggest proof of the same, as already observed, is the non-examining of defendant No.2 and not establishing the identity of defendant No.2 in the entire proceedings. For the same reasons, the judgment in Taran Singh’s case (supra) and Manjit Singh’s case (supra) would not come to the aid of the appellant-defendant since she cannot be said to be a bonafide purchaser for consideration without notice. 15. In so far as the judgments relied upon by learned counsel for the respondents-caveators are concerned, the effect of the judgment in Suraj Comp and Industries Pvt. LU’s case (supra) has already been noticed. In Parimal’s case (supra), it was held that the burden of proof of facts rests on the party which substantially asserts it and not on the party who denies it. With regard to Section 103 of the Evidence Act, it was held that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. Though the issue in the said judgment was different and the matter was a matrimonial matter, the principle of law would definitely come to the aid of the plaintiff. Though the issue in the said judgment was different and the matter was a matrimonial matter, the principle of law would definitely come to the aid of the plaintiff. It has to be borne in mind that defendant No.1 was relying upon the agreement to sell dated 18.03.2009 and the subsequent agreement to sell dated 28.10.2013 and, in terms of the provisions of Section 103 of the Evidence Act, it would be for them to prove that the said agreements existed and that the same were valid documents. Even otherwise, the agreement to sell dated 18.03.2009 was never in possession of the plaintiff and, therefore, he could not have proved its validity or otherwise. 16. In view of the aforementioned facts and circumstances, this Court does not find any illegality or infirmity in the findings recorded by the Courts below nor does this Court find any merit in the appeal. The same is accordingly dismissed.