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Judgment
V.K. Jhanji, J.—This is plaintiffs'' second appeal directed against the judgment and decree of learned District Judge, Rupnagar whereby on appeal preferred by the defendants, judgment and decree of the trial Court has been set aside and as a consequence thereof suit of the plaintiffs for specific performance of the agreement to sell, dismissed.
Plaintiffs (appellants herein) filed suit for possession of Plot No. 18-C, Phase-II, S.A.S. Nagar, Mohali measuring 1 Kanal by way of specific performance of agreement to sell dated 28.12.1988 alleged to have been executed by Ltd. Col. G.S. Sandhu (respondent No. 1 herein) in favour of the plaintiff. Plaintiffs, in their plaint, alleged that Ltd. Col. G.S. Sandhu being the owner of plot in question, offered the same for sale to the plaintiffs and a bargain was struck for purchase of said plot for a sum of Rs. 3,75,000/- vide agreement to sell dated 28.12.1988. The said bargain was got settled with the efforts of Shri Baldev Singh and Shri Malagar Singh, Property Dealers at the house of Lt. Col. G.S. Sandhu at Jalandhar. Plaintiffs alleged that agreement and receipt in this regard was written on simple papers in simple language and a sum of Rs. 20,000/- was paid as earnest money and the last date for completion of sale deed was fixed on 10.3.1989. Plaintiffs averred that Lt. Col. G.S. Sandhu had undertaken that he would get No Objection Certificate, No Due Certificate and Income Tax clearance etc. by the stipulated date. It is said that plaintiffs enquired from the Office of the Estate Officer, Punjab, Chandigarh in regarding to the outstanding amount, if any, against the said plot and a sum of Rs. 150/- was deposited by the plaintiffs on 11.2.1989 by way of demand draft. Plaintiffs averred that they were always ready and willing to perform their part of the obligation under the agreement but Lt. Col. G.S. Sandhu did not come forward to perform his part of the agreement. Plaintiffs contended that faced with this situation, plaintiffs filed suit for permanent injunction in the court of Subordinate Judge, Kharar restraining the defendants from alienating the suit property to any body else except the plaintiffs or their nominee. Stay was granted and upon appearance, defendants denied the agreement itself. Plaintiffs further contended that on the stipulated date, they waited for Lt. Col. G.S. Sandhu with requisite money for completion of sale deed in the Tehsil Complex but the latter did not turn up. Suit of injunction having been rendered infructuous was withdrawn by the plaintiffs on 11.1.1990 and thereafter suit for specific performance of the agreement was filed. In the suit, plaintiffs also challenged decree dated 22.8.1989 suffered by Lt. Col. G.S. Sandhu in favour of defendant No. 2 in Civil Suit No. 332 of 1989 titled as G.S. Sandhu v. Subdul Singh on the ground that the decree dated 22.8.1989 was as a result of collusion between Lt. Col. G.S. Sandhu and defendant No. 2 and was got passed to defeat the rights of the plaintiffs under the agreement to sell.
Upon appearance, defendants filed their written statements. In his written statement, Lt. Col. G.S. Sandhu denied the execution of the agreement or receipt on 28.12.1988. He also denied that he received a sum of Rs. 20,000/from the plaintiffs as earnest money. In fact, he termed the document as forged and fictitious having been created by the plaintiffs in connivance with the witnesses. He also took objection with regard to suit being not maintainable in the present form. Defendant No. 2 in his separate written statement, pleaded that he exchanged his landed property measuring 32 Kanals 3 Marias situated in Village Pachranga, District Jalandhar with Plot No. 18-C, Phase-II, S.A.S. Nagar, Mohali. He alleged that the rights between the parties which had come into being on the basis of exchange were got recognised through decree dated 22.8.1989. He denied that the decree was as a result of collusion between him and Lt. Col. G.S. Sandhu. Plaintiffs filed replication reiterating the stand taken in the plaint and denied the stand taken by the defendants in their written statement.
Trial Court, on the pleading of the parties framed the following issues:-
Whether defendant executed the hand receipt agreement dated 28.12.188 in favour of the plaintiff? OPP
If issue No. 1 is proved, whether earnest money of Rs. 20,000/- was paid by the plaintiffs to the defendants? OPP
Whether the defendant agreed to sell Plot N0. 18-C Phase II, SAS Nagar in favour of the plaintiffs for Rs. 3,75,000/-? OPP
Whether the plaintiffs were ready and willing to perform their part of the contract? If so, its effect? OPP
Whether the suit is not maintainable in the present form? OPD
Whether the plaintiffs are not entitled to the discretionary relief of specific performance as averred in the additional objection No. 2? OPD
Whether defendants exchanged the suit property as alleged? OPD
Whether the decree dated 22.8.89 is liable to be set aside for the reasons given in the plaint? OPD
Relief.
Trial Court decreed the suit and directed Lt. Col G.S. Sandhu to execute the sale deed in favour of plaintiffs after receiving Rs. 3,75,000/- within a period of three months. Decree dated 22.8.1989 passed in Civil Suit No. 332 of 1989 titled G.S. Sandhu v. Subdul Singh was declared as null and void and not binding on the rights of the plaintiffs. In appeal preferred by the defendant, learned District Judge, Rupnagar set aside the judgment and decree of the trial Court and thereby dismissed the suit of the plaintiffs. Hence, this second appeal.
Shri H.S. Mattewal, Senior Advocate appearing on behalf of the plaintiffs has urged that the learned District Judge has wrongly held that the agreement of sale dated 28.12.1988 is forged and fictitious document purported to have been created by the plaintiffs in connivance with the attesting witnesses. It is contended that the trial Court gave very cogent and convincing reasons to hold that receipt/agreement to sell dated 28.12.1988 was duly executed by Lt. Col. G.S. Sandhu in favour of plaintiffs for the sale of plot in question and earnest money of Rs. 20,000/- was received by Lt. Col. G.S. Sandhu. It is contended that the first Appellate Court has misread the statements made by the witnesses.
In answer to these submissions, Mr. Rakesh Garg, Advocate, learned counsel appearing on behalf of the defendants, contended that the learned District Judge, on proper appreciation of evidence brought on record, has recorded a firm finding of fact in regard to suspicious nature of receipt/agreement to sell in question being forced and fictitious document and calls for no interference in second appeal.
I have gone through the record of the case carefully and also heard the learned counsel for the parties at length.
The only question to be determined in this second appeal thus is as to whether the finding of fact by the first Appellate Court is arrived at on proper appreciation of evidence brought on record by the parties to this appeal.
In para 1 of the plaint, plaintiffs have referred to the writing of two documents on simple papers in simple language; namely, agreement and receipt. On record, however, only receipt dated 28.12.1988, Exh.P-1 has been brought. It reads as under:-
"Received a sum of Rs. 20,000/- Twenty thousand only from Shri Harbans Singh son of Shri Munsha Singh and Smt. Harmeet Kaur w/o Harbans Singh R/o Mehandipur, P.O. Abudlapur, Distt. Hoshiarpur, against the sale of Plot N0.18-C, Phase II, mearuring 507 Sqr. Yds. The total sale price has been fixed Rs. 3,75,000/-. Three Lacs Seventy Five thousands only. The last date for full and final has been fixed on or before 10.3.89.
10th March, 1989, (Revenue Stamp) Sd/-, Sd/- Baldev Singh, Lt. Col. G.S. Sandhu 21/21-A, Chd. R/O 244, Model Town, Jalandhar. Sd/- Malagar Singh, 570, Phase-II, Mohali."
The plot in question is situated at SAS Nagar, Mohall whereas above quoted document is alleged to have been executed at Jalandhar on 28.12.1988. Plaintiff''s case is that at the time of bargain, Lt. Col. G.S. Sandhu was residing at Jalandhar and the bargain was struck with the efforts of Baldev Singh and Malagar Singh, Property Dealers. Baldev Singh, Property Dealer is resident of Mohali whereas Malagar Singh is resident of Chandigarh. Baldev Singh while giving his statement as PW-3 stated that on 28.12.1988 he along with Harbans Singh plaintiff and Malagar Singh, Property Dealer had gone to Jalandhar for getting the bargain struck. He stated that they reached Jalandhar at about 12.30 p.m. or 1.00 p.m and 10-15 minutes were consumed in settling the bargain. Thereafter, he wrote Receipt Ex.P-1 and a sum of Rs. 20,000/- was paid by Harbans Singh plaintiff to Lt. Col. G.S. Sandhu in his presence and that of Malagar Singh, Property Dealer. He, in his cross-examination, stated that the paper on which receipt was written, was taken out from a diary of the year 1988. He admitted that the receipt, Ex.P-1 does not bear signature of purchaser. He conceded that he must have got struck more than 100 bargains earlier and he used to obtain signature of purchaser and seller on the agreement to sell. He conceded that he has been getting signature on plain papers also and some times rec3ipts have also been got executed on plain papers. He further admitted that as property dealer, has printed forms in his office regarding agreement to sell and the said forms do have a column for signature of purchaser as well as seller. He, however, was unable to explain as to why he had not taken any such form to Jalandhar or why he had not thought of getting agreement executed on requisite stamp papers or by going to the licensed petition writer. He, in his cross-examination though stated that the bargain was with Harbans Singh and his wife on one side and Lt. Col. G.S. Sandhu on the other side, yet he was unable to state the name of the wife of plaintiff Harbans Singh. In regard to revenue stamp on the receipt, he stated that the revenue stamp was with him because he usually keeps the same in his pocket. He stated that the revenue stamps were purchased from Chandigarh. In order to explain as to why signature of Lt. Col. G.S. Sandhu was not obtained on the revenue stamp, he stated that it was affixed after the signature was appended.
Harbans Singh, Plaintiff appeared as PW-4. In regard to revenue stamp, he stated that Baldev Singh affixed the revenue stamp after scribing the receipt and then got the signature of Lt. Col. G.S. Sandhu. When asked as to why he had not signed the receipt being purchaser, he said that he could be asked to sign only if writing had been on some stamp paper of some affidavit. He stated that about a week earlier to 28.12.1988 Baldev Singh informed him that he had settled the matter with Lt. Col. G.S. Sandhu for Rs. 3,75,000/- though he was demanding Rs. 4,00,000/-.
Malagar Singh, Property Dealer, who is stated to have accompanied Harbans Singh plaintiff and Baldev Singh, Property Dealer to Jalandhar was examined by the defendant as DW-3. In his statement, he said that in his presence, no bargain for the sale of any plot took place between Harbans Singh and Lt. Col. G.S. Sandhu. He stated that he was working as a partner with Baldev Singh and in good faith, on his asking, he signed the same. He also said the in his presence, neither Lt. Col. G.S. Sandhu signed the receipt nor received any amount from the plaintiff.
Reading of the statement of Baldev Singh, PW-3 and Harbans Singh, PW4 shows that there are not only material contradictions in their statements but they have also failed to explain the suspicious circumstances surrounding the execution of the receipt, Ex.P-1. As noticed above, it is clear from the statement of Harbans Singh plaintiff that the bargain had already been settled a week earlier to 28.12.1988 and three of them had gone to Jalandhar to the house of Lt. Col. G.S. Sandhu only for execution of the document. If that was so, why Baldev Singh or Malagar Singh, who were Property Dealers and alleged to have accompanied the plaintiff to Jalandhar had not taken any printed form usually kept by the Property Dealers for execution of such like documents. There is no explanation as to why for the execution of the receipt, paper from the diary was torn and why any other plain paper was not asked for. In para 1 of the plaint, reference is to two documents, namely, agreement and the receipt. It is also said that the same were written on ''simple papers'' meaning thereby that in fact, there was more than one document. Why the same has not been brought on record, is another suspicious circumstance. More so, plaintiff was accompanied by two Property Dealers who had long experience in settling such like bargains. No explanation whatsoever has come from the plaintiff or from Baldev Singh, Property Dealer as to why proper agreement to sell, may be on plain paper, was not written. It is not that they were not conversant with the writing of such like documents. Harbans Singh, PW-4 said that the revenue stamp was affixed after the receipt was scribed. If that was so, why signature of Lt. Col. G.S. Sandhu was not obtained on the revenue stamp and why it was only crossed. Baldev Singh though stated that the revenue stamp was affixed after scribing the receipt and then signature of Lt. Col. G.S. Sandhu was obtained but he has not explained as to why the revenue stamp which he had taken from Chandigarh was not put before obtaining signature of Lt. Col. G.S. Sandhu. Learned District Judge, on perusal of the receipt, has also pointed out that writing Ex.P-1 is in one ink and signatures of Baldev Singh and Malagar Singh are in another ink and Lt. Col. G.S. Sandhu has signed with some other ink and the cross on the revenue stamp is totally in a different ink. Plaintiffs have also failed to explain satisfactorily as to why signature of Harbans Singh purchaser was not obtained on the receipt.
PW-2 Satwant Puri, Document Expert examined by the plaintiff, in his statement though stated that on comparison of disputed signature on the receipt and the specimen signature of Lt. Col. G.S. Sandhu in the record kept by the Estate Officer, he found the same to be the writing of one and the same person but in cross-examination, he conceded that there are variations in some of the letters in their formation.
DW-1 K.N. Prasad who had worked in State Forensic Laboratory, Chandigarh from 1958 to 1986, on comparison of signature purported to be of Lt. Col. G.S. Sandhu on the receipt, Ex.P-1 with the specimen signature, opined that the disputed signature is not of the person who is writer of standard signature under comparison. He also pointed out that receipt dated 28.12.1988 had not been written in one continuous operation with the same pen and ink. He pointed out that "the signature of G.S. Sandhu marked Q-1 and of the witnesses Baldev Singh and Malagar Singh have been written in different ink and pen from the body writing of the receipt. The revenue stamp is separately affixed and crossed by different ink and pen than the signature G.S. Sandhu, marked Q-1. These physical facts in the receipt under examination cast reasonable doubt regarding its genuineness and lends credence to the opinion arrived at above."
Having regard to the statements of witnesses and the suspicious circumstances referred to and pointed out above in regard to the execution of receipt Exh.P-1, I am of the view that the learned District Judge, Rupnagar has properly appreciated the evidence brought on record by the parties and committed no illegality in holding that Ex.P-1 cannot be said to be genuine or natural document. The onus to prove that Lt. Col. G.S. Sandhu (defendant No. 1) has executed agreement to sell and the receipt, was on the plaintiffs and this they have miserably failed to discharge.
Consequently, the appeal being without any merit, deserves to be dismissed and it is so ordered. No costs.