Hardev Singh and others vs Jarnail Singh

L.N. Mittal, J.

CM No. 1756.C of 2010

For reasons mentioned in the application, delay of 24 days in refiling the appeal is condoned.

CM No. 1757.C of 2010

For reasons mentioned in the application which is accompanied by affidavit, delay of 89 days in filing the appeal is condoned.

RSA No. 619 of 2010

Hardev Singh etc. legal representatives of Chand Singh alias Shri Chand original defendant since deceased have knocked at the door of this Court by way of instant second appeal, having failed in both the courts below.

Respondent�plaintiff Jarnail Singh filed suit against defendant Chand Singh alias Shri Chand alleging that the defendant vide agreement dated 1.10.1997 agreed to sell suit land measuring 22 kanals 4 marlas to the plaintiff at the rate of Rs. 1,50,000/- pere acre and received Rs. 4,06,250/- as earnest money. Possession of the suit land was also delivered to the plaintiff. Sale deed was agreed to be executed upto 31.12.1998. Accordingly, on 31.12.1998, the plaintiff went to the office of Sub Registrar along with requisite amount to get the sale deed executed and registered but the defendant did not turn up. The plaintiff has always remained ready and willing to perform his part of the contract but defendant committed breach thereof. Accordingly, plaintiff sought specific performance of the agreement to sell dated 1.10.1997 and in the alternative, sought recovery of earnest money of Rs. 4,06,250/- along with interest thereon.

The defendant broadly controverted the plaint allegations. It was denied that the defendant agreed to sell the suit land to the plaintiff and received any earnest money and executed any agreement. It was also pleaded that defendant himself was not in possession of the suit land and therefore, question of delivering possession thereof to the plaintiff did not arise. The impugned agreement is forged and fabricated. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Budhlada vide judgment and decree dated 31.8.2007 decreed the plaintiff''s suit for specific performance of the impugned agreement. First appeal preferred by Hardev Singh one of the six legal representatives of the original defendant has been dismissed by learned District Judge, Mansa vide judgment and decree dated 7.11.2008. Feeling aggrieved, legal representatives of the defendant have filed the instant second appeal.

I have heard learned counsel for the appellants and perused the case file.

The plaintiff himself appeared in the witness box as PW3 and examined three attesting witnesses of the impugned agreement, Piara Singh PW2, Tara Singh PW4 and Nirbhay Singh PW5. All of them have stated according to plaintiff''s version. Both the parties also examined Handwriting Experts. Plaintiff''s Expert stated that questioned signatures of defendant on the impugned agreement tallied with his standard signatures whereas defendant''s Expert witness stated that questioned signatures of the defendant on the impugned agreement had been affixed by impersonation and forgery and did not tally with his standard signatures. Defendant Chand Singh also himself stepped into witness box but his cross-examination could not be recorded on account of his death and therefore, his examination-in-chief cannot be read in evidence. After his death, his son Jaswant Singh appellant No. 2 stepped into witness box and stated according to the defendant''s version.

Learned counsel for the appellants vehemently contended that both parties are residents of village Beeroke Kalan, Tehsil Budhlada, but the impugned agreement was got scribed at Mansa and not at Budhladha and therefore, the agreement is suspicious. It was also contended that testimony of Expert witness of plaintiff has been given undue weight as against the testimony of Expert witness examined by the defendant.

I have carefully considered the aforesaid contentions but find myself unable to accept the same. Both the parties have examined Handwriting Expert as witnesses. Handwriting Expert in the matter of comparison of hand writing or signatures ordinarily gives opinion in favour of the party engaging him. Same has happened in the instant case also. Lower appellate court has observed that much weight cannot be attached to the testimony of either Expert. However, plaintiff has led direct evidence to prove his case. The plaintiff who himself is party to the agreement has stepped into witness box and has also examined three attesting witnesses of the agreement. All of them have stated about due execution of the agreement by the defendant and receipt of money by him from the plaintiff. This direct evidence is very cogent and reliable. There is no reason to doubt or discard the same. Even the defendant has not alleged any ground as to why the plaintiff would forge and fabricate the impugned agreement on behalf of the defendant and would file false suit without any rhyme or reason. There is also no reason why three attesting witnesses of the agreement would depose falsely against the defendant. Counsel for the appellant has not been able to refer to any material on record to depict that the plaintiff and the three attesting witnesses of the agreement had any enmity with the defendant or had any motive to depose falsely against him. Statements of attesting witnesses of the agreement could not be impeached in their cross-examination. In view of this direct evidence led by the plaintiff, which has been found to be credible, suit of the plaintiff has been rightly decreed by the courts below. On the other hand, there is no direct evidence on behalf of the defendant. Unfortunately, the defendant himself died. His son Jaswant Singh could have no personal knowledge about the impugned agreement because he was not present at the time of execution of the agreement. Even otherwise, self serving statement of Jaswant Singh is not sufficient to rebut overwhelming and reliable evidence led by the plaintiff to prove his case.

The agreement also cannot be doubted or suspected merely because it was got scribed at Mansa and not at Budhlada. There could be many reasons for doing so. Moreover, distance of village of the parties from Mansa and from Budhlada has not come on record and therefore, it cannot be said which of the two places is nearer to village of the parties.

There is concurrent finding recorded by the courts below to decree the suit of the plaintiff. Said finding is based on appreciation of evidence and is supported by reasons. The said finding is not shown to be perverse or illegal or based on misreading or misappreciation of evidence so as to warrant interference in exercise of second appellate jurisdiction. No question of law much less substantial question of law arises for adjudication in the instant second appeal. On the contrary, finding arrived at by the courts below is the only reasonable finding that can be arrived at on appreciation of the evidence led by the parties. There is, therefore, no merit in the instant second appeal which is accordingly dismissed in limine.