In a second appeal regarding a suit for specific performance of a sale agreement, the High Court dismissed the appeal, holding that the agreement was forged based on expert testimony and suspicious conduct. The court rejected re-appreciation of evidence under Section 100 CPC.
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No. 2083 of 2010(O&M) Date of Decision: 3.2.2012.
Pawan Kumar & another
--Appellants
Versus
Malkiat Singh & others
--Respondent
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:Mr. G.S. Bhatia, Advocate for the appellants.
TEJINDER SINGH DHINDSA.J
The plaintiffs-appellants are in second appeal before this Court. Briefly stated, the plaintiffs-appellants filed a suit for specific performance in respect of agreement dated 7.1.1997 by stating that the defendants were owners in possession of the suit land measuring 38 kanals 16 marlas situated within the revenue estate of village Kakheri, Tehsil Guhla and an agreement had been entered into to sell such suit land for a total sale consideration of Rs.4,75,000/- on 7.1.1997. It was pleaded that the defendants were given Rs.2,50,000/- towards earnest money and the date for execution and registration of the sale deed was fixed as 15.6.1997. It was also pleaded that by mutual consent the date for execution of the sale deed was extended up to 15.6.1998 on 13.6.1997 and on such date a further sum of Rs.1,50,000/- was paid by the plaintiffs-appellants to the defendants. The plaintiffs-appellants stated that on 15.6.1998 they were present in the office of Sub Registrar, Guhla along with the balance sale consideration but the defendants did not turn up. Plaintiffs-appellants were always ready and willing to perform their part of the contract and against such factual backdrop the suit had been instituted for specific performance of the
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agreement dated 7.1.1997 and as an alternative relief, it was also prayed that a decree for recovery of Rs.4 lacs along with interest be passed.
The suit was contested and the defendants set up a case of denial. The receipt of earnest money of Rs.2,50,000/- on 7.1.1997 and further receipt of additional earnest money of Rs.1,50,000/- on 13.6.1997 was denied. It was stated that the agreement dated 7.1.1997 and the alleged endorsement thereupon dated 13.6.1997 as also the receipt showing payment of earnest money were forged documents. The defendants further pleaded that Baso Ram, plaintiff-appellant no.2 was in fact running a Commission Agency under the name and style of M/s Babu Ram Baso Ram. The defendants used to sell their agricultural produce through such Commission Agency and it was possible that the plaintiffs-appellants may have succeeded in obtaining the thumb impression of the defendants on some blank papers. As such it was pleaded that upon the defendants having refused to sell their agricultural produce through the Agency being run by the plaintiff-appellant no.2, the forged documents have been created to harass them.
Upon the pleadings of the parties, following issues were struck by the Trial Court:-
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Upon hearing the parties and having appreciated the evidence led on record the Trial Court dismissed the suit. The plaintiffs-appellants preferred a civil appeal and in terms of judgement dated 21.8.2009 the findings of the Trial Court have been affirmed and the appeal has been dismissed. It is under such circumstances that the plaintiffs-appellants are in second appeal before this Court.
I have heard Mr. G.S. Bhatia, learned counsel appearing for the plaintiffs-appellants at length.
Both the courts below have returned a concurrent finding in terms of holding the agreement dated 7.1.1997 (Ex.P-3), receipt (Ex.P-2) and endorsement dated 13.6.1997 (Ex.P-1) to be surrounded with suspicious circumstances. Primarily the following three definite circumstances have weighed with the courts below to reach a conclusion that the agreement dated 7.1.1997 (Ex.P-3) had not been entered into with an intention to transfer the suit land. Firstly, as per the plaintiffs-appellants' own stand the total sale consideration had been fixed at Rs.4,75,000/- against which Rs.2,50,000/- had been paid towards earnest money on 7.1.1997 itself. Thereafter, upon an alleged mutual consent the last date for execution and registration of the sale deed had been extended up to 15.6.1998 and in furtherance thereof a further sum of Rs.1,50,000/- had also been paid; meaning thereby that out of a total agreed sale consideration of Rs.4,75,000/-, Rs.4,00,000/- had already been paid by the plaintiffsappellants to the defendants-respondents. Ex.P-3 i.e. the agreement to sell dated 7.1.1997 contained a specific recital that the vendees i.e. the plaintiffs-appellants had been delivered the possession of the land on
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the spot. The endorsement (Ex.P-1), which was made at the back of the agreement (Ex.P-3) on 13.6.1997 also contained the identical recital. However, the testimony of PW-4 i.e. Baso Ram, plaintiff-appellant no.2 was to the effect that the possession in fact had not been delivered of the suit property. As such there is a clear variance between the recital in the agreement as opposed to the oral testimony of plaintiff-appellant no.2.
Secondly, the courts below have taken note of the fact that even though, the plaintiffs-appellants had paid a substantial amount of Rs.4 lacs out of the alleged total sale consideration of Rs.4,75,000,/- still no concrete steps have been taken for claiming possession of the suit property. On the other hand there could have been no plausible explanation and justification for extending the last date for execution and registration of the sale deed by a period of one year. Yet another glaring fact taken note of is that inspite of Rs.4 lacs out of the total sale consideration of Rs.4,75,000/- having already been paid up to 13.6.1997 and the last date for execution and registration of sale deed having been stipulated till 15.6.1998, the present suit had been instituted only on 13.6.2001. The conduct of the plaintiffs-appellants as such was under a question mark.
The plea of the defendants-respondents to the effect that the agreement to sell as well as the receipts with regard to earnest money were forged and fabricated have found corroboration from the testimony of the Handwriting & Finger Print Expert, DW-4, who has submitted his report Ex.DW-4/A. In a nutshell the Expert has opined of there being every possibility that the thumb impression of Gurmej Singh, defendantrespondent no.2 having been obtained on a blank piece of paper. Even in the receipt Ex.P-2 dated 13.6.1997 the names of defendants-respondents
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no.2 and 3 were noticed, who have appeared in the reversed order of the paper, whereas the name of witness Vikas Kumar appeared in the correct order. Such discrepancy has also gone unexplained. Even though, report of a Handwriting and Finger Print Expert cannot be construed as a conclusive evidence but it does lend support to the plea set up by the defendantsrespondents regarding the agreement to sell, receipts of payment of earnest money being forged and fabricated documents.
Upon the totality of circumstances, conduct of the plaintiffsappellants and upon due appreciation of evidence the courts below have concluded that the plaintiffs-appellants are not entitled for any relief that could possibly flow from the alleged agreement to sell dated 7.1.1997. In exercise of jurisdiction by the High Court under Section 100 of Code of Civil Procedure a re-appreciation of evidence is not called for. The concurrent findings of fact are binding on the High Court. I do not find any perversity in the findings of the courts below.
The instant regular second appeal must fail as it does not raise any question of law much less substantial question of law. Appeal, accordingly, is dismissed.
Appeal dismissed.
(TEJINDER SINGH DHINDSA) JUDGE
3.2.2012.
lucky
Whether to be reported? No.
3 issues framed by the court
Whether the plaintiffs are entitled to specific performance of the agreement to sell dated 7.1.1997 in the second appeal.
Whether the agreement is forged and fabricated based on forensic evidence and suspicious circumstances.
Whether the findings of the courts below regarding the dismissal of the suit are perverse or call for re-appreciation of evidence.
1 provisions across 1 enactments
Pawan Kumar
Malkiat Singh
Tejinder Singh Dhindsa
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
