RSA No.1588 of 2009
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.1588 of 2009
Date of decision : 23-7-2009
Major Singh
....Appellant
VERSUS
Smt. Gurpal Kaur and others
....Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr. C.L. Sharma, Advocate,
for the appellant.
RAJIVE BHALLA, J. (Oral)
The appellant challenges the judgment and decree dated
27-11-2008, passed by the Additional District Judge, Hoshiarpur
accepting the appeal filed by the respondents and as a result setting
aside the judgment and decree dated 28-4-2005, passed by the
Additional Civil Judge (Senior Division) Hoshiarpur.
A brief narrative of the facts would be appropriate. The
appellant filed a suit for possession by specific performance of an
agreement to sell dated 3-3-1997 executed by Baldev Singh, son of
Sh. Chetan Singh agreeing to sell 35 kanals and 10 marlas of land
@Rs.83,000/- per acre. Baldev Singh received Rs.6 lacs as earnest
money and agreed to execute the sale deed on or before 13-12-
2000. At the time of the execution of the agreement to sell Baldev
Singh stated that as he was the attorney of the other co-sharers he
was authorized to sell the land falling to their share. It is further
pleaded that before Baldev Singh could arrange the power of
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attorney of his co-sharers, he passed away. The appellant was
always ready and willing to perform his part of the agreement and
therefore the legal representatives of Baldev Singh and the other
respondents should be directed to execute the sale deed with
respect to 35 kanals and 10 marlas. In the alternative, the appellant
prayed for return of the amount of Rs.6 lacs paid as earnest money
and Rs.4,60,000/- the agreed amount of liquidated damages, with
interest @18% per annum.
Upon notice, the respondents denied the execution of the
agreement by alleging that it was forged and fabricated. It was
denied that any amount was ever received by Baldev Singh and as
even otherwise Baldev Singh never hold a power of attorney from the
other co-sharers, the entire story appears to be fabricated. On the
basis of the pleadings, the trial Court framed issues and thereafter
called upon the parties to lead evidence. After considering the
pleadings, the evidence adduced and the arguments addressed, the
trial Court declined the relief for specific performance but decreed the
suit for refund of Rs.10,60,000/-,with future interest @ 9% per
annum.
Aggrieved by the aforementioned judgment and decree,
the respondents filed an appeal. The First Appellate Court accepted
the appeal, reversed the judgment and decree passed by the trial
Court and dismissed the suit by holding that though the alleged
agreement to sell bears the signatures of Baldev Singh but a perusal
of the agreement and the evidence on record clearly establishes that
Baldev Singh did not execute any agreement to sell.
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Counsel for the appellant submits that as held by the trial
Court, the agreement stands proved with the proof of the signatures
of Baldev Singh. The First Appellate Court therefore had no
jurisdiction to reject the agreement to sell. It is argued that the
absence of khasra numbers in the agreement or the fact that Baldev
Singh was a stranger to the appellant and the attesting witness,or the
spacing between the lines etc. are irrelevant. The appellants
responded to an advertisement in a newspaper offering to sell the
suit land. They met Baldev Singh who agreed to sell the suit land. As
a result he received Rs. six lakhs and executed the agreement. It is
prayed that the circumstances referred to by the First Appellate Court
to hold that the agreement is invalid are entirely irrelevant and in view
of the errors committed by the first appellate court, the following
questions of law arise for consideration:-
a) Whether the lower appellate court by holding that
the agreement to sell in question is not proved to be
signed by the vendor, has ignored the material
evidence of the handwriting expert on record
discussed in detailed by the trial court in para 18 of
its judgment?
b) Whether the reason given by the lower appellate
court in setting aside the well reasoned judgment
and decree passed by the trial court is sustainable
in the eye of law?
I have heard counsel for the appellant, perused the
impugned judgment and do not find any error of law as would raise
any substantial question of law much less the questions framed by
counsel for the appellant. The First Appellate Court held that though
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Baldev Singh’s signatures on the agreement Ex.P1 stand proved but
the suspicious circumstances surrounding its execution render it
invalid. The First Appellate Court relied upon the following
circumstances to hold as above: the abnormal spacing between the
typed lines, the space of more than two inches between Baldev
Singh’s signatures and the last line of the agreement, Baldev Singh
had no reason to append his signatures twice, the agreement does
not refer to any khasra number and of utmost significance the
payment of Rs.6 lacs as earnest money without any receipt. It was
also held that as Baldev Singh was a stranger, unknown to the
appellant and the attesting witnesses, it was rather strange that the
appellant handed over Rs.6 lacs to him without a receipt and on the
basis of an agreement that does not fully describe the land. The
conclusions recorded by the First Appellate Court, in my considered
opinion do not suffer from any error.
The first question of law, is factually incorrect as
the First Appellate Court has not disregarded the handwriting expert’s
report as it has held that the document Ex.P1 bears the signatures
of Baldev Singh. By way of the second question of law the appellant
asserts that the reasons assigned by the first appellate court, while
setting aside the trial Court’s judgment are not sustainable. However,
no argument has been addressed in support of this assertion. The
circumstances narrated by the First Appellate Court while rejecting
the agreement are in no manner perverse or erroneous and therefore
do not merit interference.
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In view of what is stated hereinabove as the finding
recorded by the First Appellate Court does not suffer from any error
of law, the appeal is dismissed.
(RAJIVE BHALLA)
23-07-2009 JUDGE
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