R.S.A. No.4498 of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No.4498 of 2004
Date of Decision : 23.03.2009
Kabal Singh
....Appellant
Versus
Usha Rani and others
...Respondents
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
....
Present : Mr. Vinish Singla, Advocate
for the appellant.
Mr. Vinod Khunger, Advocate
for the respondents.
.....
MAHESH GROVER, J.
The plaintiff/appellant is in regular second appeal
assailing the findings of the first Appellate Court dated 20.2.2004. He
had filed a suit for specific performance seeking to enforce two
agreements to sell dated 18.1.1994 and 29.4.1994 purportedly
executed by vendor Harbhajan Singh who died before the sale deeds
could be executed. As per the agreement to sell dated 18.1.1994, the
sale was to be concluded by 25.4.1994 and allegedly a sum of
Rs.20,000/- was paid by the appellant to the owner of the property,
namely, Harbhajan Singh. Subsequently, another agreement to sell
was executed on 29.4.1994 by which it is alleged by the appellant that
R.S.A. No.4498 of 2004 -2-
he paid a sum of Rs.80,000/- to the vendor Harbhajan Singh and by
virtue of this agreement to sell it was agreed that the sale was to be
concluded on 25.4.1996. On 25.6.1995, Harbhajan Singh, who was
not keeping well, died. The appellant thereafter approached the legal
representatives of deceased Harbhajan Singh to execute the sale deeds
and honour the agreements and a notice dated 7.5.1996 was issued by
the appellant asking the legal representatives of deceased Harbhajan
Singh to execute the sale deed on 23.5.1996. They replied to this
notice but denied the agreements on 11.6.1996. To this also the
appellant submitted a counter reply reiterating his version regarding
the agreements to sell and execution of the sale deed.
The respondents denied the agreements as also the
receipt of the amount by their predecessor-in-interest Harbhajan
Singh.
The parties went to trial on the following issues :-
1. Whether Harbhajan Singh entered into an agreement
to sell dated 18.1.1994 and 29.4.1994 regarding the
shop in dispute in favour of plaintiff?OPP
2. Whether the plaintiff is entitled to the specific
performance of the said agreement to sell?OPP
3. Whether the answering defendants are liable to
execute the registered sale deed in favour of the
plaintiff?OPP
4. Whether the said agreement is a result of fraud and
has been forged and fabricated one?OPD
5. Relief.
R.S.A. No.4498 of 2004 -3-
The learned trial Court concluded that the agreement
dated 18.1.1994 was a valid agreement as the signatures of deceased
Harbhajan Singh were proved. However, it concluded that the
agreement dated 29.4.1994 was not proved at all and consequently
decreed the suit of the plaintiff/appellant partly by directing a refund
of Rs.20,000/-.
Both the parties were aggrieved by the findings of the
learned trial Court and filed two separate appeals against the said
judgment. The learned first Appellate Court concluded that both the
agreements were forged and fabricated and dismissed the appeal of
the appellant while allowing the appeal of the
defendants/respondents.
This has resulted in the regular second appeal being filed
by the plaintiff/appellant who has contended that the first Appellate
Court has committed an error by accepting the report of the hand-
writing expert partly. It is the contention of the learned counsel for the
appellant that either the report should have been accepted in toto or
no reliance could have been placed on it by the first Appellate Court.
It is further contended that the agreements have been proved by
producing the attesting witnesses leaving no ambiguity in the same
and consequently the first Appellate Court ought to have appreciated
this fact and allowed the appeal of the plaintiff/appellant. It is further
contended that the findings recorded by the first Appellate Court are
perverse, as it has relied on the notice dated 7.5.1996 and the reply
dated 11.6.1996 as also the counter reply dated 19.6.1996 whereas
these documents were never exhibited. On the strength of this it is
R.S.A. No.4498 of 2004 -4-
pleaded by the learned counsel for the appellant that the findings
recorded by the first Appellate Court deserve to be set aside.
On the other hand, learned counsel for the respondents
has contended that the appellant has failed to establish the validity of
the agreements to sell and has also failed to establish that these were
valid documents. It is further contended that in the plaint initially it
was pleaded that the agreement was reduced into writing whereas in
the notice reference to the agreement has been made to say that it was
an oral agreement. Even though amendment was sought by the
plaintiff/appellant in the plaint to effect a change in the pleadings to
plead a written agreement instead of oral agreement, yet the notice
still spoke on an oral agreement which plea was never withdrawn by
the appellant. That apart, it was pleaded that there is ample evidence
to show that the agreements are forged and fabricated as the names of
the attesting witnesses as typed out in the agreements and the ones
who have signed are at variance. Learned counsel for the respondents
thus pleaded that the findings of the first Appellate Court are totally
correct and do not warrant any interference.
I have heard the learned counsel for the parties and have
gone through the impugned judgment as also the records.
The appellant has set up two agreements to sell dated
18.1.1994 and 29.4.1994 which were purportedly executed by
deceased Harbhajan Singh, the predecessor-in-interest of the
defendants/respondents. In a suit for specific performance, a person
who approaches the Court for enforcement of an agreement to sell has
necessarily to prove three essential ingredients : (i) that the agreement
R.S.A. No.4498 of 2004 -5-
to sell was validly executed; (ii) that there was passing of
consideration which should be reflected in the agreement to sell; and
(iii) willingness and readiness of the party concerned to perform his
part of the agreement. If the aforesaid tests are to be applied to the
facts of the case, it seems that the appellant has faltered in the very
first hurdle itself. The agreements to sell have not been established as
the hand-writing expert has pointed out to the variations in the
signatures of testator Harbhajan Singh. The malice on the part of the
appellant is also reflected from the fact that he initially pleaded that
the agreements were oral but subsequently changed his plea by way of
amendment to incorporate that the agreements were written. In the
notice itself he pleads oral agreements. This when viewed with the
ambiguity of the names of the attesting witnesses appearing on the
alleged agreements shows that the agreements were not the bona fide
documents. Ex.P1 reflects that it was attested by one Pamma Seth
instead of Pawan Kumar whose name has been typed in written, while
the name of Chiman Lal as his father has been added in ink. The other
attesting witness of Ex.P1 is Sukhchain Singh whose name finds
mentioned but in the reply dated 19.6.1996, which is the counter reply
and is on record, name of Surjit Singh is mentioned. It is the
contention of the learned counsel for the appellant that this document
dated 19.6.1996 was never exhibited and could not be looked into,
but the Court does not accept this contention for the reason that it
was pleaded before the Court by the appellant that he had submitted
counter reply to the reply submitted by the respondents to the notice
issued by the appellant himself and in this counter reply dated
R.S.A. No.4498 of 2004 -6-
19.6.1996, which is placed on record, he himself submitted that it was
Surjit Singh who attested the same as a witness. Once the appellant
himself had pleaded a fact by submitting a counter reply, then the
Court is not precluded from taking cognizance of it even if it is not
exhibited in accordance with law. All these factors when taken
cumulatively show that the document was not inspiring enough for
the Court to accept and therefore it was rightly rejected by the first
Appellate Court. In this view of the matter, when the agreements to
sell have not been established, the other material particulars which are
to be proved pale into insignificance. Learned counsel for the
appellant has pleaded that he is in possession but it is not conceivable
as to how he had entered the possession, as his whole case which was
based on the agreements to sell, has been shattered for want of cogent
evidence. Accordingly, this Court does not find any infirmity in the
impugned judgment. Consequently, the appeal, which has not thrown
up any substantial question of law and is directed against a pure
question of fact, which has been determined by the first Appellate
Court, does not warrant an interference and is hereby dismissed.
23.3.2009 (MAHESH GROVER)
JUDGE
dss