R.S.A. No. 251 of 1989 (O&M 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
R.S.A. No. 251 of 1989 (O&M)
Date of Decision : 16.1.2009
Amrit Kumar & others
.......... Appellants
Versus
Kulwant Singh
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. D.S. Bali, Sr. Advocate with
Mr. Namit Gautam, Advocate
for the appellants.
Mr. Manjit Singh, Advocate
for the respondent.
****
VINOD K. SHARMA, J.
The appellants by way of this regular second appeal have
challenged the judgment and decree dated 6.10.1988 passed by the learned
District Judge, Patiala dismissing the suit for specific performance of
agreement to sell.
The plaintiff-appellants filed a suit for possession by way of
specific performance of agreement to sell dated 16.11.1981 in respect of the
land measuring 14 Bighas 4 Biswas situated in village Dayalpura, Tehsil
Rajpura District Patiala, on payment of balance sale consideration of Rs.
53,250/-.
The case set up by the plaintiffs was that defendant-respondent
R.S.A. No. 251 of 1989 (O&M 2
had entered into an agreement to sell the land in dispute on 16.11.1981.
The rate fixed was Rs. 15,000/- per Killa. The land was lying mortgaged
with the plaintiffs for an amount of Rs. 15,000/- by means of two different
mortgage deeds for an amount of Rs. 7500/- each which was treated as the
earnest money.
The plaintiffs further claimed that after the execution of the
agreement to sell the defendant borrowed an amount of Rs. 5000/- from
plaintiff No.1 Amrik Kumar on 24.11.1981, and another amount of Rs.
20,000/- from plaintiff No.2 Smt. Pushpa Devi on 19.5.1982 by means of
two separate pronotes and receipts respectively carrying an interest of Rs.
1.56% PM regarding which it was claimed that separate suits were being
filed.
The plaintiffs claimed that in order to defeat the agreement
entered into between the parties the defendant-respondent had started
negotiating for selling the land in dispute to some stranger. A suit for
permanent injunction was instituted against defendant-respondent on
27.6.1983 in which the respondent on appearance denied the execution of
the sale agreement in favour of the plaintiff-appellants. The plaintiffs
claimed that they were always ready and were still ready and willing to
perform their part of contract but defendant-respondent committed breach
thereof.
The suit was contested and the averments on merit were denied.
It was claimed by respondent-defendant that he never entered into the
agreement to sell and that in any case if the agreement is in existence the
R.S.A. No. 251 of 1989 (O&M 3
same is a forged document. It was denied that plaintiff-appellants could
claim specific performance of the agreement or that they were entitled to
adjust the mortgaged amount of Rs. 15,000/- at the time of registration of
sale deed. The execution of pronotes was also denied. A plea was taken that
defendant-respondent being owner of the property had every right to sell the
same. The stand was also taken that as there was no agreement to sell
between the parties and thus there arose no question of the plaintiff-
appellants being ready and willing to perform their part of contract.
On the pleadings of the parties, the learned trial Court was
pleased to frame the following issues :-
“1. Whether the defendant entered into sale agreement with
the plaintiffs in respect of the suit land on 16.11.1981 ?
OPP2. Whether the plaintiffs are entitled to decree for specific
performance ? OPP3. Whether the plaintiffs remained and are still ready and
willing to perform their part of the contract ? OPP4. Whether the suit is within time ? OPP
5. Whether the agreement in dispute is forged document ?
OPD
6. Relief.”
The plaintiffs examined Bidi Chand as PW-1,Dev Raj as PW-2,
Mahavir Parshad Jain as PW-3 besides one of the plaintiffs i.e. Amrit
Kumar as PW-4. They also produced in evidence the agreement to sell dated
16.11.1981 Ex. P-1.
The defendant-respondent examined Vidi Ram, Registration
R.S.A. No. 251 of 1989 (O&M 4Clerk of the Office of Sub Registrar, Dera Bassi as DW-1, Durga Singh as
DW-2, Diwan K. S. Puri as DW-2A and himself appeared in the witness box
as DW-3. The defendant also tendered into evidence the sale deed dated
22.4.1982 as DW2/A in respect of sale of some other land situated in the
same village i.e. Dialpura.
On consideration of the evidence brought on record the learned
trial Court came to the conclusion that the execution of the agreement to sell
stood duly proved by examining the parties as well as the attesting
witnesses thereto. The Court also on the available evidence on record,
recorded a finding that the plaintiff-appellants remained and still ready and
willing to perform their part of contract. The evidence led by hand-writing
expert Diwan K.S. Puri was not accepted by examining the signatures itself
and in view of the findings on issues No. 1 & 3, the suit was ordered to be
decreed. The other issues i.e. issues No. 4 & 5 were also decided against the
respondent-defendant.
The defendant-respondent preferred an appeal.
The learned lower appellate Court on appreciation of evidence
reversed the finding by observing as under :-
“The disputed agreement of sale in this case is Ex. P-1.
It was scribed by Waliati Ram deed-Writer and bears the
attestation of Vidhi Chand, Dev Raj, Amrit Lal and the
disputed signatures of Kulwant Singh. In order to prove
the execution of this document, the plaintiffs have
produced Vidhi Chand PW1, Dev Raj PW 2, Mahabir
Parshad PW3 son of the deed-writer and Amrit Lal, one
R.S.A. No. 251 of 1989 (O&M 5of the plaintiffs himself appeared as PW4. Before
appreciating the evidence of these witnesses, it would be
useful to note that the suit land was already under
mortgage with the plaintiffs for a sum of Rs. 15,000/-. No
amount was advanced to the defendant appellant at the
time of the alleged agreement of sale. The stipulation in
respect of the execution of the sale deed was within 5
years. The plaintiffs also have claimed that subsequent
to the agreement of sale on 16.11.1981 the defendant
appellant borrowed a sum of Rs. 5000/- on 24.11.1981
( i.e. within 8 days from the date of agreement of sale )
and Rs.20,000/- on 19.5.1982. Keeping in view the
circumstances, the execution of the agreement of sale is
to be appreciated. First of all, it would be noticed that
Vidhi Chand belongs to village Kurri which is stated to
be situated in Tehsil Kharar District Ropar. PW2 Dev
Raj belongs to village Kadra Baad which is stated to be
in Tehsil Samana while Amrit Kumar plaintiffs belongs
to village Ambala in Tehsil Rajpura. The disputed
agreement is stated to be executed at Dera Bassi. The
suit land is situated in village Dayalpur which is in
Tehsil Rajpura. PW 1 Vidhi Chand stated that he is
related to the plaintiffs but he denied that he has any
relationship with Dev Raj the other attesting witness,
DW2 Dev Raj stated that Vidhi Chand is his sister’s
husband. Amrit Kumar, one of the plaintiffs, stated that
none of the PWs i.e. Vidhi Chand and Dev Raj are his
relations and he did not know if they were inter-se
related on the date of agreement of sale. This conflicting
stand taken by these witnesses about their inte-se
relationship casts doubts in the bonafide of the plaintiffs
R.S.A. No. 251 of 1989 (O&M 6as to how these witnesses were collected at Dera Bassi
where normally they are not likely to be present being
residents of far of places. Now according to Vidhi
Chand, he along with Dev Raj was present at the Bus-
stop of Dera Bassi from where defendant appellant
called him and took him to the seat of the document-
writer whereas according to Dev Raj he alongwith Vidhi
Chand was present at the shop of Dr. Kesho Ram at
Dera Bassi where he had come to take medicines from
Dr. Kesho Ram. According to him, Kulwant Singh came
to the shop of Kesho Ram and took them along. Now
according to Amrit Kumar, on the day of the execution of
the agreement of sale he alongwith his brother Sham Lal
had gone to the village of Kulwant Singh defendant
appellant and had brought him from there to Dera Bassi.
If Kulwant Singh was not to be given any money nor he
had come of his own to contact the mortgagees for
executing the agreement of sale what was the necessity
for the mortgagees to approach him for execution of the
sale/deed when they were already in possession of the
suit land. It is of no body’s case that defendant appellant
had any compelling reason to execute the agreement of
sale on 16.11.1981. The experience tells that whenever
the agreement of sale is executed the executant receives
some amount from the prospective vendees towards the
earnest money, otherwise a land owner is not likely to
execute agreement of sale or a sale-deed in favour of any
other person more so the allegation of the plaintiffs in
this case is that on 24.11.1981 defendant appellant
borrowed Rs. 5000/- from them. There appears to be no
reason for Kulwant Singh not to get some amount on
R.S.A. No. 251 of 1989 (O&M 716.11.1981 when he allegedly executed the agreement of
sale. There is also discrepancy in respect of the
execution of the agreement Ex. P1. According to Vidhi
Chand Kulwant Singh was the deed-writer at that time
when he reached the place where the deed-writer
resided. The agreement of sale had been scribed before
his reaching that place. According to Dev Raj the
agreement had already been executed when he went to
the deed-writer at Dera Bassi. According to him Kulwant
Singh did not sign in his presence. He also stated that he
does not know who had purchased the stamp papers.
According to Vidhi Chand he thumb marked the
agreement of sale.A reference to agreement of sale
shows that it does not bear the thumb impression of
Vidhi Chand, rather it bears the signatures of Vidhi
Chand. Similarly Vidhi Chand stated that he had thumb
marked the agreement as an attesting witness and Dev
Raj had signed the same. Since Vidhi Chand and Dev
Raj the attesting witnesses unanimously stated that Vidhi
Chand had thumb marked the agreement of sale which is
not borne out from this document, there could be no
better evidence of falsity o evidence of the execution of
this agreement by Kulwant Singh. Yet another
discrepancy in the testimony of these witnesses which is
relevant to be noted is that according to Vidhi Chand
PW only Kulwant Singh defendant was with the deed-
writer whereas according to Dev Raj, Amrit Kumar and
Pushpa Devi (plaintiff) were sitting with the deed-writer
while according to Amrit Kumar his brother Sham Lal
who is a Head-constable of Police was also present at
the time of execution of the agreement of sale. He does
R.S.A. No. 251 of 1989 (O&M 8not mention the presence of Pushipa Devi. It would also
be seen that none of the attesting witnesses Vidhi Chand
and Dev Raj ever stated that Amrit Kumar plaintiff also
signed the agreement Ex.P1 at all. The evidence
produced by the plaintiffs in support of the execution of
the agreement which has been discussed above is not
above board. The only other evidence taken into
consideration by the trial court is the alleged signatures
of Kulwant Singh on agreement Ex.P1. Kulwant Singh
has denied his signatures on agreement Ex.P1 and
pleaded that the signatures, if any, were the creating of
forgery. The defendant produced Dewan K. S. Puri the
renowned Expert who gave his report Ex. DW2/A. He
has categorically stated that the signatures on document
Ex. P1 do not correspond with the specimen signatures
of Kulwant Singh appellant and he has further observed
that the disputed signatures have been written under
intoxication. The trial Court observed that Dewan K.S.
Puri has not said any where in his report or in his
statement if the agreement of sale does not bear the
signatures of the defendant and all that he has stated
that the disputed and specimen signatures do not
correspond each other. The observation of the trial
Court is nothing but mis-quoting of the report as well as
the statement of Dewan K.S. Puri. His statement as a
whole and the report as a whole definitely are to the
effect that the disputed signatures are not of the
defendant Kulwant Singh Dewan K. S. Puri has by now
earned a name as an Expert of the disputed handwriting
and the allied subjects and his report on a disputed
handwriting or signatures cannot be easily ignored.R.S.A. No. 251 of 1989 (O&M 9
Dewan K.S. Puri has earned the estee, of Courts and he
has been quoted with approval of his expertise in case
Ashok Kumar and another Vs. Avtar Singh 1987(2) Rent
Control Reporter page 286 at page 289. His lordship
Justice D.V. Sehgal has observed as under :-“————-
Dewan K.S. Puri, Handwriting Expert who is one
of the rare experts in this region known for giving
candid opinion irrespective of the fact whether it
goes in favour of or against the party engaging
him.”
To dispell the doubt regarding the word ‘corresponding’
used by Dewan K.S. Puri, it would be useful to refer the
meaning of “corresponding” as given in the New
Webster’s Dictionary. It is given to be “similar or
analogous; be in agreement or conformith :- agree with.
“Similarly in the same dictionary the word “tally” has
been given meaning amongst others” to correspond to
“accord or agree”. There is thus no difference if Dewan
K.S. Puri used the expression “did not correspond”
instead of “did not tally with” while giving the report
that the disputed signatures are not of Kulwant Singh
appellant. There is thus every reason to hold that
agreement Ex.P1 was never executed by Kulwant Singh
appellant and it did not bear his signatures. The findings
of the trial court to the contrary are thus reversed. The
case of the appellant also suffers from material infirmity
that there is no proof of the plea of the plaintiffs that that
they were ready and willing to perform their part of
agreement. It is well settled by now that it is not
sufficient to plead that the plaintiff was ready and
R.S.A. No. 251 of 1989 (O&M 10willing to perform his part of the agreement; rather he is
required to plead as well and to prove his readiness and
willingness to perform his part of the agreement. In his
statement Amrit Kumar PW4 stated that they had been
asking the defendant appellant many times to execute the
sale-deed but he been refusing to do so besides he stated
that they were ready and willing as well as now to get
the sale deed executed. The law on the point has been
well elucidated in decision Ishar and others Vs Sheo
Ramand others 1987 P.L.J. 421. In the instant case the
plaintiffs never alleged that they had ready money with
them. The bald statement of Amrit Kumar plaintiff that
they were ready and willing to perform their part of the
contract does not establish the financial capability to
pay the remaining sale price as is settled in agreement of
sale Ex. P1. It would also be seen that the disputed
agreement mentions that the sale-deed be executed
within 5 years from the date of agreement. Moreover, the
plaintiffs in its para No.1 of the plaint mentioned that the
defendant had agreed to the agreement itself. It is itself
in the case of the plaintiffs that they are in possession of
the suit land as mortgages even at the time of filing the
suit but strangely enough they also prayed for decree of
possession by way of specific performance of sale of
agreement. The prayer clause does not mention if the
amount of Rs. 15000/- i.e. mortgage amount is to be
deducted from the sale consideration of Rs. 3250/-.”
Mr. D.S. Bali, learned senior counsel for the appellants raised
the following substantial question of law for consideration by this Court in
this appeal :-
R.S.A. No. 251 of 1989 (O&M 11
1. Whether the judgment and decree passed by the learned
lower appellate Court is outcome of misreading of
evidence and, therefore, perverse, thus liable to be set
aside ?
In support of the substantial question of law the learned senior
counsel for the appellants contended that the judgment and decree of the
learned lower appellate Court is perverse as it has failed to notice that in
order to succeed in a suit for specific performance the plaintiff-appellants
were only required to prove the due execution of the agreement and that the
plaintiffs always remained and were willing to perform their part of
contract.
The learned senior counsel for the appellants by referring to the
evidence led, vehemently contended that in the present case the plaintiff-
appellants proved the due execution of the agreement by producing the
attesting witnesses to the agreement. The payment of earnest money by
adjustment of the mortgaged amount also stood proved.
The learned senior counsel for the appellants also referred to
the statement made by one of the plaintiffs showing that he was present in
the office of the Sub Registrar for execution of the sale deed which proved
the fact that plaintiff-appellants always remained willing to performance
their part of contract.
The learned senior counsel for the appellants further contended
that the learned lower appellate Court failed to notice that the stand of the
defendant-respondent, that the agreement was forged and fabricated
R.S.A. No. 251 of 1989 (O&M 12
document, was not proved by any evidence as no evidence was led to prove
the fraud.
It is also the contention of the learned senior counsel for the
appellants, that it is well settled law that the Court is expert of experts and,
therefore, the learned lower appellate Court could not have relied on the
evidence of Diwan K. S. Puri in preference to the finding recorded by the
learned trial Court holding that the signatures of defendant-respondent on
the agreement to sell tallied with the admitted signatures.
On consideration of the matter, I find no force in the
contentions raised by the learned senior counsel for the appellants. The
signatures on the mortgage deed were compared with that on the alleged
agreement to sell and it was noticed that the same was apparently different,
therefore, the comparison by naked eye was not possible, as held by the
learned trial Court. The evidence of Diwan K.S. Puri inspires confidence
that the agreement was in fact not executed. This opinion can be formed
even the basis of facts pleaded in the plaint. It is not in dispute that at the
time of agreement to sell no consideration was passed to the defendant-
respondent.
It is also not the case of the plaintiff-appellants that for
consideration of agreement to sell the mortgage stood extinguished and that
the possession was handed back to the defendant-respondent. Thus, the
agreement was prima facie without consideration, as per the admitted facts.
It may further be noticed that nothing was explained as to why
subsequent to execution of agreement to sell the money was advanced to the
R.S.A. No. 251 of 1989 (O&M 13
defendant-respondent that too on interest by execution of the pronotes.
The facts pleaded, and the statements of the attesting witnesses
to the agreement of sale does not inspire confidence, therefore, the learned
lower appellate Court, was fully justified in reversing the judgment and
decree passed by the learned trial Court. The judgment is based on
appreciation of evidence.
The Hon’ble Supreme Court in the case of Veerayee Ammal v.
Seeni Ammal 2001 AIR SCW 4377, has been pleased to lay down as
under :-
“10. The question of law formulated as substantial
question of law in the instant case cannot, in any way, be
termed to be a question of law much less as substantial
question of law. The question formulated in fact is a
question of fact. Merely because of appreciation of
evidence another view is also possible would not clothe
the High Court to assume the jurisdiction of terming the
question as substantial question of law. In this case Issue
No.1 as framed by the trial Court, was, admittedly, an
issue of fact which was concurrently held in favour of the
appellant-plaintiff and did not justify the High Court to
disturb the same by substituting its own finding for the
findings of the Courts below, arrived at on appreciation
of evidence.”
Again in the case of Rajgopal (Dead) by L.Rs. v. Kishan Gopal
and another 2003 A.I.R. SCW 4986, the Hon’ble Supreme Court, was
pleased to lay down as under :-
“On the other hand, the first appellate Court, after
R.S.A. No. 251 of 1989 (O&M 14taking into consideration and discussing the oral and
documentary evidence threadbare, recorded a finding
that the plaintiffs failed to prove that there was an
agreement between the natural and the adoptive fathers
to the effect that adopted son shall be treated to be the
son of both of them and entitled to inherit their
properties and consequently, the adoption of Goverdhan
Das was in ordinary form. Mr. V.A.Mohta, learned
senior counsel appearing on behalf of the respondents
strenuously contended that the finding recorded by the
first appellate Court was unwarranted. The findings on
this point recorded by the first appellate Court which
was final Court of fact was a pure finding of fact and
could not have been interfered with by the High Court in
the exercise of powers conferred upon it under S. 100 of
the Code of Civil Procedure, 1906, more so when no
question of law much less, substantial one was
involved.”
The findings recorded by the learned lower appellate Court
cannot be said to be perverse or not capable of being arrived at on
appreciation of evidence and the facts brought on record.
The Hon’ble High Court in exercise of jurisdiction under
Section 100 of the Code of Civil Procedure cannot re-assess or re-appreciate
the evidence or make roving enquiry by entering into the factual arena of
the case to come to a different conclusion than the one arrived at by the
learned lower appellate Court which is the final Court of fact.
The jurisdiction of this Court is, thus, limited only in a case
where there is a misreading of evidence or on admitted evidence the
R.S.A. No. 251 of 1989 (O&M 15
findings recorded are perverse, thus, no question of law or the findings can
be said to be against the public. No such case has been made out. Thus, the
substantial question of law, as framed, does not even arise for consideration
by this Court.
The substantial question of law, is answered against the
appellants and in favour of the defendant-respondent. The judgment and
decree passed by the learned lower appellate Court cannot be said to be
outcome of misreading of evidence or perverse. Therefore, finding no merit
in this appeal the same is ordered to be dismissed but with no order as to
costs.
16.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE