Full Judgment
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rs.No.144 of 2013 (O&M) Date of decision: 9th May, 2014 Dalbir Singh Appellant Versus Manjit Kaur and others Respondents CORAM: HON’BLE Mr.JUSTICE RAKESH KUMAR GARG1 Whether Reporters of Local Newspapers may be allowed to see the judgment?.
2.
Whether to be referred to the Reporters or not?.
3.
Whether the judgment should be reported in the Digest?.
Present: Mr.H.S.Jalal, Advocate for the appellant.
RAKESH KUMAR GARG, J.
This is plaintiff’s second appeal challenging the judgment and decree of the trial Court dated 08.10.2009 whereby his suit for specific performance of the agreement to sell in question was dismissed.
Further challenge has been laid to the judgment and decree of the fiRs.appellate Court dated 04.10.2012 dismissing his appeal filed against the aforesaid judgment and decree of the trial Court.
As per the averments, the defendants are the owners of the suit land measuring 23 Kanals 15 Marlas.
It is the case of the Singh Rattan Pal 2014.05.19 15:18 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.144 of 2013 (O&M) 2 appellant that defendants No.1 and 2 for self and on behalf of minor defendants No.3 and 4, entered into an agreement to sell dated 14.07.1975 with the plaintiff and defendant No.5 in equal shares for a consideration of `19,000 for the entire land and received a sum of `4,000 as earnest money.
The balance amount was to be paid at the time of execution of the sale deed on 28.07.1975.
The suit was contested by defendants No.1 to 4 stating that no such agreement was executed and the agreement dated 14.07.1975 was a forged and fabricated document.
Both the parties led evidence in support of their respective claims and after appreciating the facts, evidence and the arguments advanced by the parties, the trial Court dismissed the suit vide judgment and decree dated 08.10.2009.
Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff filed an appeal, which was also dismissed by the fiRs.appellate Court vide its judgment and decree dated 04.10.2012.
While dismissing the appeal, the fiRs.appellate Court observed as under: “10.
A conspectus of the record has shown that the document dated 14.7.1975 has not been proved to be executed by the respondent/defendant No.1.
Although the respondents/defendants have specifically denied in their written statement the execution of any document (agreement to sell dated 14.7.1975).but the appellant/plaintiff Dalbir Singh has not made any endeavor to get her signatures compared from a document or handwriting expert, so as to substantiate that the signatures purported to be that of Manjit Kaur on the Singh Rattan Pal 2014.05.19 15:18 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.144 of 2013 (O&M) 3 document Ex.P1 were those of the respondent/defendant No.1 Manjit Kaur and as such, she had, in real sense, executed the document Ex.P1 and had also executed document Ex.P2.
This is despite the fact that the defendant No.1 has categorically taken the stand in her written statement that the said document dated 14.7.1975 was fabricated document which was forged by Dalbir Singh in connivance with the deed writer and witnesses.
Even if, PW3 (wrongly numbered) Kulbhushan son of the scribe Krishan Partap appeared in the witness box as PW3 (wrongly numbered) has identified the signatures of his father Krishan Partap Singh on the document Ex.P1, but still, the execution of the document by the respondent/defendant No.1 has not been proved by the witness.
Although PW2 Jagir Singh appeared in the witness box to prove the execution of the document Ex.P1 and Ex.P2 by Manjit Kaur.
During the couRs.of his cross-examination, he has admitted the case of the respondents/defendants to the effect that the respondent Manjit Kaur had entered into an agreement with Dalbir Singh on 3.10.1973, the sale deed of which was to be executed on 21.2.1973.
Meaning thereby, he has taken a diametrically opposite stand from the stand taken by him in his examination in chief.
In fact, this stand of the PW2 Jagtar Singh had totally demolished the case of the appellant/plaintiff, when he has stated that Dalbir Singh had entered only into one agreement with the respondent Manjit Kaur.
Meaning thereby, the same was dated 3.10.1973 and not 14.7.1975.
The case of the appellant/plaintiff is that Manjit Kaur had taken Rs.4000/- as earnest money, but Jagtar Singh has stated that Rs.2000/- were taken by Manjit Kaur in his presence.
He has further stated that even that amount was given in the village and not in Tehsil Complex.
Then, he has stated Singh Rattan Pal 2014.05.19 15:18 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.144 of 2013 (O&M) 4 that it was Dalbir Singh who has brought the papers for scribing the document but as per law the said stamp papers should have been purchased by the respondent/defendant Manjit Kaur.
Even the appellant/plaintiff PW1 Dalbir Singh during the couRs.of his cross-examination was not able to tell the date, month or year of the execution of the document.
He has also not been able to tell the name of the scribe or the name of the marginal witness.
His case in the plaint is that he had paid Rs.4000/- as earnest money but in he couRs.of his cross- examination he has stated that he had paid Rs.1500/- only.
All this shows that there are very many discrepancies in the statement of Dalbir Singh and the marginal witness Jagir Singh.
The scribe could not be examined as he had expired.
So, the case of the plaintiff/appellant has been rightly dubbed as full of contradictions and discrepancies.
Each factor is a pointer towards the conclusion to the effect that the plaintiff could not prove the execution of the document dated 14.7.75 by the respondent/defendant No.1 Manjit Kaur.
However, perusal of the order Ex.D5 has shown that Manjit Kaur had already taken permission to sell her land vide order dated 31.1.1975.
11.
As regards the findings on issue No.2, the case of the plaintiff/appellant is that the sale deed in pursuance of the agreement to sell dated 14.7.1975 could not be executed as the respondent/defendant Manjit Kaur had not performed her part of the contract as she had taken the requisite permission to sell the property which was in the name of the minor defendants.
However, perusal of the order Ex.D5 has shown that Manjit Kaur had already taken permission to sell her land vide order dated 31.1.1974.
So, it cannot be said lapse on the part of the respondent/defendant Manjit Kaur.
In fact, she was Singh Rattan Pal 2014.05.19 15:18 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.144 of 2013 (O&M) 5 already vested with the powers to sell the land in question by virtue of the order dated 31.1.1974 Ex.D5 on the file.
So, this plea of the appellant/plaintiff has been rightly discarded by the learned lower Court by way of returning the findings on issue No.2 in favour of the respondents/defendants and against the appellant/plaintiff.
In addition to it, the suit filed by the appellant/plaintiff is hopelessly time barred as the same has been filed in the year 2002, but the agreement Ex.P1 is dated 14.7.1975.
The said suit could have been filed within a period of three yeaRs.So, the suit is time barred.
In this view of the matter, the learned lower Court has rightly decided that the appellant/plaintiff is not entitled to specific performance of the agreement dated 14.7.1975 and is also not entitled to injunction, he was not having any cause of action to file the suit.”
.
Still not satisfied, the plaintiff has filed the instant appeal submitting that the following substantial questions of law arise in this appeal: (i) Whether a document can be ignored only for the reason that the signatures were not got compared from the handwriting expert especially when the same is proved by producing the attesting witnesses?.
(ii) Whether the suit of the plaintiff can be dismissed on the ground of limitation especially when the fault lies on the defendants as the defendants have never obtained permission from Guardian Judge and even Singh Rattan Pal 2014.05.19 15:18 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.144 of 2013 (O&M) 6 if the permission is proved on the file, it was never brought to the notice of plaintiff?.
(iii) Whether the findings of the courts below which are based on misreading of evidence and misinterpretation of law can be sustained in the eyes of law?.
At the outset, it may be noticed that the suit filed on behalf of the appellant in the year 2002 for enforcement of an agreement to sell dated 14.07.1975 is hopelessly time barred.
Though, it is the case of the appellant that the sale deed could not be executed in pursuance of the agreement to sell in question as respondents failed to take requisite permission to sell the property, which was in the name of minor defendants; however, a perusal of the order (Ex.D5) on record would show that defendant Manjit Kaur had already taken permission to sell her land vide order dated 31.01.1974 and thus, she was already vested with the powers to sell the land in question by virtue of the said order on the file.
In view thereof, the courts below rightly discarded the plea of the appellant while holding the suit to be hopelessly time barred.
It may be noticed at this stage that the respondents had denied execution of the agreement in question, however, the appellant took no steps to get the signatures of defendant No.1 Manjit Kaur compared from an expert to substantiate that the agreement to sell in question was executed.
Moreover, the appellant has further failed to prove execution of the agreement to sell in question as PW-2 Jagir Singh Rattan Pal 2014.05.19 15:18 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.144 of 2013 (O&M) 7 Singh, who had stepped into the witness box on behalf of the appellant to prove execution of the agreement to sell in question, had not supported the case of the appellant.
In view thereof, this Court is of the opinion that no interference is warranted in the findings recorded by the courts below, as the substantial questions of law, as raised, do not arise in this appeal.
Dismissed.
(RAKESH KUMAR GARG) JUDGE May 9, 2014 rps Singh Rattan Pal 2014.05.19 15:18 I attest to the accuracy and integrity of this document Punjab & Haryana High Court