Amrik Kaur and Another vs Mohinder Singh and Others

L.N. Mittal, J.—Defendants no. 1 and 3 have filed this second appeal having lost in both the courts below. Suit was filed by respondent no. 1-plaintiff Mohinder Singh against the appellants and proforma respondents no. 2 and 3 as defendants. Defendant no. 1 is widow of Satnam Singh whereas defendants no. 2 and 4 are son and daughter of Satnam Singh. Defendant no. 3 Major Singh is son of Surjan Singh. It is stated that defendant no. 1 after death of her husband Satnam Singh performed kareva marriage with Surjan Singh. Thus, Major Singh is not biological son of defendant no. 1.

Case of the plaintiff is that defendants agreed to sell suit land measure 81 kanals to the plaintiff at the rate of Rs. 11,15,408/- per acre and received Rs. 11,30,000/- as earnest money and executed agreement dated 29.4.2005. Sale deed was agreed to be executed upto 7.2.2006. The defendants, however, threatened to alienate the suit land prior to the date stipulated for execution of the sale deed. The plaintiff thereupon filed suit for permanent injunction restraining the defendants from alienating the suit land. After expiry of the date stipulated in the agreement for execution of sale deed, the plaintiff amended the suit and claimed relief of possession of the suit land by specific performance of the aforesaid agreement. The plaintiff alleged that he has always been ready and willing to perform his part of the contract but the defendants committed breach thereof.

Only defendants no. 1 and 3 contested the suit whereas defendants no. 2 and 4 were proceeded against exparte. Defendants no. 1 and 3 broadly denied the plaint averments. It was denied that the defendants agreed to sell the suit land to the plaintiff or received Rs. 11,30,000/- as earnest money or executed the impugned agreement. It was pleaded that defendant no. 3 was interested in going abroad and needed money for the same. Defendant no. 3 contacted the plaintiff who agreed to advance loan of Rs. 7 lacs. The plaintiff came to the house of defendants along with 10/12 blank stamp papers and asked defendant no. 3 to get thumb impressions of defendant no. 1 on the said blank papers assuring that the plaintiff would keep the same as security and would return the same on repayment of the loan amount. Accordingly, defendant no. 1 affixed her thumb impressions on all the 10/12 blank stamp papers whereas defendants no. 2 to 4 affixed their thumb impressions on one blank paper only as asked by the plaintiff. Signatures of defendant no. 1 on the impugned agreement were alleged to be forged and fabricated. The plaintiff has misused the blank thumb marked papers to prepare the impugned agreement. Defendants admitted receipt of Rs. 7 lacs only.

Both the courts below have decreed the suit of the plaintiff. Feeling aggrieved, defendants no. 1 and 3 have filed this second appeal.

I have heard learned counsel for the parties at considerable length and perused the case file.

The plaintiff in order to prove his case has examined two attesting witnesses of the agreement namely Arjan Singh PW1 and Rashpal Singh PW2, scribe of the agreement namely Avtar Singh PW3 and himself stepped into witness box as PW4. All of them have broadly stated according to plaintiff''s version. Rakesh Kumar PW5 bank official stated about transfer of Rs. 7 lacs from the account of plaintiff to the account of defendant no. 1 on 29.4.2005. He also stated that plaintiff had withdrawn Rs. 2 lacs from the bank on 27.4.2005 and Rs. 2,30,000/- on 29.4.2005.

On the other hand, defendant no. 3 Major Singh appeared as DW2. Defendants also examined Gurdial Singh DW1, an attesting witness of the agreement. Both of them have broadly stated according to the defendants'' version.

Counsel for the appellants vehemently contended that the agreement has been typed loosely with more space between lines and also leaving blank space in sheet no. 3 at the top and although agreement is typed on 4 sheets, 5th stamp paper also purports to bear thumb impression and signature of defendant no. 1 and all these circumstances would depict that the impugned agreement has been prepared on blank stamp papers bearing thumb impressions as pleaded by the contesting defendants. Reference was also made to statements of Arjan Singh PW1, Rashpal Singh PW2 and the plaintiff as PW4 to point out discrepancies therein regarding payment of earnest money. Statement of Avtar Singh PW3 was also assailed on various grounds including the grounds that he was not a licenced deed writer and his register had not been authenticated by any official and the register contained loose papers tagged with thread and some blank papers bearing some thumb impressions.

On the other hand, counsel for respondent no. 1/plaintiff contended that the stamp paper of Rs. 300/- purchased for the agreement consist of 15 stamp papers of Rs. 20/- each. The agreement is typed on 4 stamp papers and in routine 5th stamp paper was also thumb marked/signed by Amrik Kaur defendant no. 1, but the remaining stamp papers have not been signed or thumb marked by anyone and therefore, it cannot be said that thumb impressions had been obtained on blank papers. It was also argued that thumb impressions and signatures of defendants appear not only on the impugned agreement but also in the register of Avtar Singh PW3 scribe but the same have not been explained by the defendants in any manner. It was further contended that defendant no. 1 did not even step into witness box.

I have carefully considered the rival contentions.

Alleged discrepancies in the statements of Arjan Singh, Rashpal Singh and Mo-hinder Singh PWs cannot be given undue importance in second appeal after both the courts have noticed and discussed the entire evidence in great details. Suffice to mention that some discrepancies are bound to occur in statements of even truthful witnesses with passage of time and due to different powers of observation and memory. Moreover, the lis has to be adjudicated upon preponderance of evidence. The statement of Avtar Singh PW3 may also be discrepant on some points relating to his register, but not relating to the impugned agreement. Moreover, the fact remains that entry in his register relating to the impugned agreement has been thumb marked and signed by the defendants. However, there is no plea whatsoever regarding the same in the written statement of the defendants. Only plea in the written statement is that thumb impressions of defendant no. 1 were obtained on 10/12 blank stamp papers and of other defendants on one stamp paper only. Therefore, the existence of thumb impressions of the defendants in the register of the scribe negatives the version of the defendants that their thumb impressions had been obtained blank on stamp papers. Avtar Singh PW3 may not be maintaining the register properly and may be having loose papers bearing thumb impressions but the same would not effect the impugned agreement.

It is highly significant to notice that according to written statement, thumb impressions of defendant no. 1 were obtained on all the 10/12 blank stamp papers. However, thumb impressions of defendant no. 1 appear on 5 stamp papers only and not on 10/12 stamp papers. Moreover, if the plaintiff had to obtain thumb impressions on blank papers, he would have obtained the same on all the blank stamp papers and not on 5 stamp papers only.

Defendants no. 1 and 3 had to admit receipt of Rs. 7 lacs because the said amount had been paid through bank by transfer from bank account of the plaintiff to the bank account of defendant no. 1. However, since there was no such documentary evidence regarding the remaining amount of Rs. 4,30,000/- except the recital in the impugned agreement, defendants no. 1 and 3 tailored their defence accordingly and admitted receipt of Rs. 7 lacs only. In this context, it is highly significant to notice that plaintiff was stranger to the defendants and was not known to them earlier. In these circumstances, the plaintiff would not have advanced loan of Rs. 7 lacs to the defendants. It is the stand of the defendants that defendant no. 3 had directly approached the plaintiff. In these circumstances, the version of defendants that loan was advanced by the plaintiff to the defendants cannot be accepted.

Much stress was laid by counsel for the appellants on the contention that plaintiff stated that he had paid Rs. 2,30,000/- to the witnesses out of Rs. 11,30,000/- paid as earnest money. The emphasis is misplaced. The total amount of Rs. 11,30,000/- was paid. The same included Rs. 2,30,000/- which might have been paid to the defendants through witnesses. The plaintiff had withdrawn Rs. 2,00,000/- on 27.4.2009 and Rs. 2,30,000/- on 29.4.2005 from his bank account and paid the same to defendants along with transfer of Rs. 7,00,000/- from bank account of plaintiff to bank account of defendant no. 1 on 29.4.2005 (the date of agreement) and thus version of plaintiff regarding payment of total earnest money of Rs. 11,30,000/- is corroborated.

Defendant no. 1, who was very material witness to prove version of defendants, has not stepped into the witness box and, therefore, strong adverse presumption arises against the defendants. For the reasons aforesaid, I find that both the courts below rightly concluded concurrently in favour of the plaintiff. The defendants'' version is completely unacceptable. On the contrary, the plaintiff has led cogent evidence to prove his case. Concurrent finding recorded by courts below cannot be said to be perverse or illegal or based on misreading or misappreciation of the evidence on record. No question of law much less substantial question of law arises for adjudication in this second appeal.

The appeal is devoid of merit and is accordingly dismissed.