Full Judgment
Regular Second Appeal No.4818 of 2012 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.4818 of 2012 Date of decision : November 19, 2012 Chiman Lal and others ....Appellants versus Raj Kumar and others ....Respondents Coram: Hon'ble Mr.Justice L.N.Mittal Present : Mr.CM Munjal, Advocate, for the appellant L.N.Mittal, J.
(Oral) Defendants No.1, 3 and 11 have filed this second appeal having lost in both the courts below.
Respondent No.1/plaintiff Raj Kumar filed suit against the appellants and proforma respondents No.2 to 8.
Case of the plaintiff is that Chander Wati (since deceased)-predecessor of the defendants, being owner of the suit house, agreed to sell the same to the plaintiff for ` 6 lacs and received ` 5 lacs as earnest money from the plaintiff and executed agreement dated 15.10.2004.
Sale deed was agreed to be executed upto 30.6.2005.
However, prior to it, Chander Wati died on 19.5.2005.
The Regular Second Appeal No.4818 of 2012 -2- plaintiff asked the defendants to execute the sale deed in terms of the agreement but they did not do so although the plaintiff always remained ready and willing to perform his part of the contract.
Accordingly, the plaintiff filed suit for possession of the suit house by specific performance of the agreement.
Defendants No.1 to 3 and 6 contested the suit and broadly denied plaint averments.
It was alleged that the plaintiff is a money lender and has been taking signatures of his debtors on blank pronotes as security and later on has been filing suits for recovery.
It was possible that Chander Wati affixed her thumb impressions on blank stamp papers either in good faith of the plaintiff or at the instance of her another son and later on, the plaintiff prepared impugned agreement to sell illegally and falsely.
Both the courts below have decreed suit of the plaintiff.
Feeling aggrieved, defendants No.1, 3 and 11 have filed this second appeal.
I have heard counsel for the appellants and perused the case file.
Counsel for the appellants contended that a bare perusal of photostat copy of the impugned agreement reveals that thumb impressions of vendor Chander Wati had been obtained on blank stamp papers and the agreement was prepared later on.
It was also argued that the agreement has not been scribed by a regular deed writer not the name of the typist who Regular Second Appeal No.4818 of 2012 -3- typed it has been mentioned in it.
It was also pointed out that lower appellate court erroneously observed that the agreement was drafted by an advocate although there is no evidence to this effect.
I have carefully considered the aforesaid contentions but the same cannot be accepted.
The plaintiff besides himself appearing in the witness box has examined both attesting witnesses of the agreement.
All of them have broadly stated according to the plaintiff's version.
On the other hand, defendant No.3 Pawan Kumar appeared as DW1 and defendants examined two other witnesses who have broadly stated according to the defendants' version.
The plaintiff has fully proved his case by examining himself as well as both marginal witnesses of the agreement.
Their statements could not be impeached in their lengthy cross-examination.
On the other hand, the defendants have vaguely pleaded that their predecessor Chander Wati might have affixed thumb impressions on blank papers either at the instance of the plaintiff in good faith or at the instance of her other son (even name not specified).It is also not alleged as to why she would have affixed her thumb impressions on blank papers at all.
It is not alleged that she had taken any loan from the plaintiff.
Consequently, there was no occasion for her to affix her thumb impressions on blank stamp papeRs.Perusal of photostat copy of the impugned agreement as shown Regular Second Appeal No.4818 of 2012 -4- by counsel for the appellants, also does not depict that it has been prepared on blank stamp papers already bearing thumb impressions of the vendor Chander Wati.
Mere fact that the agreement was not scribed by a regular deed writer or that name of the typist who typed it has not been mentioned on it is not sufficient to discard the agreement in the face of cogent evidence led by the plaintiff.
On the other hand, it has come in the evidence of the plaintiff that defendants No.2 and 3 Mathra Dass and Pawan Kumar sons of Chander Wati, were both present when the agreement was executed.
This circumstance further reasonably rules out plea of the defendants that thumb impressions of vendor Chander Wati had been obtained on blank stamp papeRs.On the other hand, the stamp papers for the agreement were also purchased by Mathra Dass defendant No.2 who is son of Chander Wati.
He also affixed his signatures in token of purchasing the stamp papers below the endorsement of the stamp vendor.
However, significantly, Mathra Dass has not stepped into witness box although he was the most material witness on behalf of defendants.
Consequently, very strong adveRs.presumption arises against the defendants.
Contention of counsel for the appellants that long period of one year and eight months was fixed for execution of sale deed although the Regular Second Appeal No.4818 of 2012 -5- plaintiff had allegedly paid ` 5 lacs as earnest money out of total sale consideration of ` 6 lacs, does not adversely effect the case of the plaintiff because it might be part of the bargain and vendor might be needing long time for arranging some alternative accommodation or there could be some other reason for the same.
Counsel for the appellants contended that the plaintiff has not proved his resources to pay earnest money of ` 5 lacs.
However, this is contradictory to the stand of the defendants in the written statement wherein it has been pleaded that the plaintiff is money lender and therefore, the plaintiff is man of resources.
Consequently, it cannot be said that he had no resources to pay ` 5 lacs as earnest money to the vendor.
For the reasons aforesaid, I find no merit in the instant second appeal.
There is concurrent finding recorded by both the courts below to decree the suit of the plaintiff which is fully justified by the evidence on record.
The said finding is not shown to be perveRs.or illegal or based on misreading or misappreciation of the evidence on record.
There is, therefore, no ground to interfere with the same.
No question of law much less substantial question of law arises for adjudication in this second appeal.
Accordingly, the appeal is dismissed in limine.
( L.N.Mittal ) November 19, 2012 Judge 'dalbir'