Full Judgment
Rs.No.4549 of 2009(O&M) #1# IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Rs.No.4549 of 2009(O&M) Date of Decision:-10.05.2013 Rajinder Singh......Appellant.
Versus Inderjit Kaur......Respondent.
CORAM:- HON'BLE Mr.JUSTICE JASWANT SINGH Present:- Mr.Raj Kumar Gupta, Advocate for the appellant.
Mr.Arvind Mittal, Advocate for the respondent.
*** JASWANT SINGH, J.
Plaintiff/appellant is in second appeal against the judgment and decree dated 4.10.2007 passed by the learned District Judge, Rupnagar whereby appeal preferred by the defendant/respondent Inderjit Kaur (vendor) was allowed and consequently, the judgment and decree dated 31.10.2006 of Specific Performance passed by the learned Additional Civil Judge(Sr.Divn.).Ropar in favour of plaintiff was reversed.
In brief, the facts of the case are that the agreement to sell dated 22.12.2000 was propounded by the plaintiff, whereby it was alleged that a sum of Rs.4 lacs out of the sale consideration of Rs.5 lacs was received by the vendor-defendant.
It was further averred that the last date of execution of sale deed was 31.08.2001 and for not performance of the contract by the defendant, the present suit for specific performance was filed on Rs.No.4549 of 2009(O&M) #2# 19.09.2001.
Upon notice, defendant appeared and denied execution of the impugned agreement to sell and alleged the same to be a forged and fabricated document.
Replication was filed, whereby the entire contents of the plaint were reiterated and those of the written statement were denied.
From the pleadings of the parties issues were framed.
Both sides led evidence and after appreciating their evidence, learned trial Court decreed the suit in toto with costs and the findings thereof were reversed by the learned lower Appellate Court.
Hence the present second appeal.
I have heard learned Counsel for the parties and have gone through the case file very carefully with their able assistance.
Learned Counsel for the appellant has argued that the learned lower Appellate Court, while allowing the appeal filed by the defendant/respondent has completely misread the pleadings/evidence on record and the relevant proposition of law applicable thereto.
It was argued that in the present case the impugned agreement to sell is proved by the statements of Scribe PW-1 Balkar Singh Sheikhwan, Advocate and of PW-2 Manjit Singh as well as PW-3 Joginder Singh who are the two attesting witnesses of the impugned agreement to sell.
Thus, it was stated that the appellant was able to prove the execution of the agreement to sell in question.
However, the learned lower Appellate Court has wrongly relied upon the weak kind of evidence led by the respondent/defendant by examining the handwriting expert as it is settled position of law that opinion given by handwriting expert is weak in nature and same has to be corroborated by independent evidence.
However, the learned lower Rs.No.4549 of 2009(O&M) #3# Appellate Court failed to appreciate that there was no independent corroboration to the weak evidence of the handwriting expert, relied upon by the learned lower Appellate Court.
Finally it was argued that the findings given by the learned lower Appellate Court is completely contrary to the findings given by the learned trial Court who, had rightly appreciated the evidence on record and, therefore, the impugned judgment and decree passed by the learned lower Appellate Court is perverse.
On the other hand, learned counsel for the respondent/defendant has argued that the learned lower Appellate Court has rightly dismissed the suit of the plaintiff and allowed the appeal filed by the respondent because it is apparent from the face of the record that plaintiff/appellant never appeared in the witness box and it was his power of attorney holder i.e.his father Gamdoor Singh who appeared in the witness box.
Thus, it was argued that it cannot be stated that there was any evidence whatsoever to prove the factum of execution of the agreement to sell.
Consequently, it was also argued that the impugned agreement to sell itself is found to be incorrect from the fact that in the present case plaintiff/appellant is seeking the relief of possession by way of execution of the impugned agreement to sell, however, a perusal of the agreement to sell would show that possession has already been delivered to the plaintiff/appellant.
Thus, it was stated that it is proved from the own case of plaintiff/appellant that no agreement to sell was ever executed amongst the parties.
After hearing learned Counsel for the parties and perusing the paper book, this Court is of the considered view that the present appeal is devoid of any merit and the same deserves to be dismissed.
In the present Rs.No.4549 of 2009(O&M) #4# case, it is apparent from the record that although two attesting witnesses of the impugned agreement to sell were examined by the plaintiff, however, it is also apparent from the record that both these witnesses belong to the village of the plaintiff/appellant.
The property in question is situated in Ropar(Rupnagar) whereas both these witnesses do not belong either to the native village of the defendant/respondent i.e.village Urapar or to Ropar.
A perusal of the record further reveals that there is no explanation forthcoming either from the attesting witnesses or from the plaintiff to show that how they contacted the defendant/respondent Inderjit Kaur prior to execution of the agreement to sell.
Furthermore, the learned lower Appellate Court has rightly pointed out in paragraph nos.18 & 19 of its judgment numerous discrepancies in the statements of the witnesses examined by the plaintiff including his power of attorney holder, which showed that the witnesses did not inspire confidence regarding execution of the agreement to sell in question.
not only this, the learned lower Appellate Court has appreciated the evidence by even comparing the standard signatures of Inderjit Kaur with the disputed signatures to come to a conclusion that the signatures do not belong to Inderjit Kaur.
It was categorically held by the learned lower Appellate Court that the purported signatures of Inderjit Kaur on the impugned agreement to sell are quite shaky, not well defined and letters of the signatures are quite different in shape and, therefore, the very base of the agreement to sell stands shaken.
Furthermore, the learned lower Appellate Court also relied upon handwriting expert examined by the defendant/respondent, whereby it was held by the handwriting expert that the signatures do not belong to Inderjit Kaur.
Thus, on the basis of the Rs.No.4549 of 2009(O&M) #5# evidence the learned lower Appellate Court has rightly come to the conclusion that the signatures do not belong to Inderjit Kaur as there is no rebuttal to the handwriting expert examined by the respondent/defendant as well as to the minute perusal of the signatures by the learned presiding officer dealing with the case.
Hence in view of the above, this Court has no hesitation in holding that the learned Lower Appellate Court has rightly dismissed the suit of the plaintiff as the plaintiff has miserably failed to prove the due and valid execution of the agreement to sell in question.
not only this, it is settled position of law that if a party denies the signatures on a public document, then the onus is upon the party asserting the document to be in existence to show by leading positive evidence to the effect that the document was indeed executed.
Something more than mere oral assertions by the witnesses is required in such situation, which obviously depends upon the facts and circumstances of every case.
In the present case, as held earlier, there are material discrepancies in the statements of the attesting witnesses and this court is of the opinion that the plaintiff/appellant was required to lead some more evidence in affirmative to prove the execution of the agreement to sell by the defendant/respondent as the entire onus was upon him.
In view of the above, finding no question of law, much less substantial question of law arising for determination in the present second appeal, the same is hereby dismissed.
( JASWANT SINGH ) JUDGE May 10, 2013 Vinay