Satwinder Singh @ Satinder Singh vs Baldev Singh and Others

Ajay Tewari, J.—This order shall dispose of RSA Nos.4805 of 2010 and 723 of 2010, as common facts are involved therein. As regards RSA No. 723 of 2010, it may be noticed that since 26.4.2011, none has appeared for the appellant. Even today the position is not different. However, the matter is being decided since both these appeals have been directed to be heard together and detailed arguments have been heard in the accompanying appeal.

These appeals have been filed against concurrent judgments and decrees of the Courts below decreeing the suit of respondent No.1 Baldev Singh for specific performance of an agreement to sell dated 4.2.2000 against Pritam Singh; one appeal having been filed at the instance of the vendor and other at the instance of the rival vendee who in turn averred that there was not only a prior agreement dated 12.3.1999 in his favour but even a sale deed dated 14.7.2000 also. Both the Courts below found as a fact that Baldev Singh had agreed to purchase the house of Pritam Singh for a total consideration of Rs. 1.95 lac and paid an amount of Rs. 1.50 lac as an earnest money and subsequently had been handed over possession of the property in dispute on 2.4.2000 by document, Annexure P 2. It was further held by the Courts below that on the date when the sale deed was executed in favour of Satwinder Singh @ Satinder Singh, the aforesaid Baldev Singh was in possession and despite that fact Satwinder Singh @ Satinder Singh made no inquiries. Consequently, both the Courts below held that the agreement to sell and the sale deed in favour of Satwinder Singh @ Satinder Singh were sham documents.

Following questions of law have been proposed in RSA No. 4805 of 2010 :

i) Whether Baldev Singh is entitled for recovery of Rs. 3 lac on the basis of forged and fabricated documents?

ii) Whether the alleged agreement without consideration can be enforced ?

Iii) Whether oral positive evidence brought on record can be ignored ?

iv) Whether the claim beyond the pleadings can be decreed ?

v) Whether the agreement to sell without possession delivered needs registration ?

It would be seen that questions No. (i) to (iv) are pure questions of fact. As regards question No. (v), counsel for the appellant has fairly accepted that though the same is a question of law yet the amendment in this regard was carried out in the Registration Act in 2003 and the present transaction relates to the year 2000. Consequently, no benefit can be given to the appellant for this question of law. Counsel for the appellant has taken me through the judgments of the Courts below as well as the evidence recorded but has not been able to persuade me that the findings recorded are either based on no evidence or are based on such misreading of evidence as would render the same so perverse as to be liable for interference u/s 100 of the CPC.

In RSA No. 723 of 2010, following questions of law have been proposed :

i) Whether the execution of alleged agreement to sell dated 4.2.2000 (Ex.P1) as well as Yad-dasht Nama/Part performance dated 2.4.2000 (Ex.P2) is not proved, since the scribe (PW1-Jaspreet Singh) and the draftsman of site plan (PW4-Ram Singh) did not appear for cross-examination, according to Section 61 of the Evidence Act and as has been held in the case of Gouri Chakraborty v. Nilima Bose, 2001(2) RCR (Rent) 457 (Calcutta) ?

ii) Whether an adverse inference should be drawn against the plaintiff/respondent No. 1 because he failed to call the scribe/deed writer for cross-examination, according to Section 114 of the Evidence Act and as has been held in the case of Hakam Singh v. Gurdev Singh, 1999(4) RCR (Civil) 210 (P&H) ?

iii) Whether the suit of the plaintiff is liable to be dismissed on the ground that the execution of the alleged agreement to sell dated 4.2.2000 (Ex.P1) is not proved on record ?

iv) Whether the burden of proof never shifts and lies solely on the plaintiff, who had to prove the execution of the alleged agreement to sell dated 4.2.2000, according to Sections 102 and 103 of the Evidence Act and as has been held by the Hon''ble Supreme Court in the case of R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple, 2003(8) SCC 752 (SC) ?

(v) Whether the statement of the appellant that he put signatures on blank papers does not mean that he had executed the document executed thereon, according to Sections 101 and 114 of the Evidence Act and as held in the case re: Kuttadan Velayudhan, 2001 AIR (Ker) 123 (DB) ?

(vi) Whether there is no admission on the part of the appellant (DW1-Pritam Singh) since any alleged admission has to be clear, unambiguous and conclusive, as held in the case of Sita Ram Bhau Patil v. Ramchandra Nago Patil, 1977 AIR (SC) 1712 and also when it can be explained and weighed in the backdrop of that alleged admission, as has been held in the case of Kuldeep Singh @ Kuldeep Dass v. Uttam Dass, 2007(3) PLR 689 (P&H)?

(vii) Whether the appellant/defendant No. 1( DW1-Pritam Singh) is not bound by any alleged admission (regarding possession) of his co-defendant (DW6-Satinder Singh), as held in the case of Arur Singh v. Kulwant Singh, 1994(1) PLR 321 (P&H) ?

(viii) Whether the evidence of DW5-Jasbir Kaur cannot be rejected on the invalid ground that she is the sister of the appellant, as has been held by the Hon''ble Supreme Court in the case of State of Punjab v. Wassan Singh, AIR 1981 SC 697 (SC) ?

It would be seen that questions no. (i) to (iii) and (v) to (viii) are pure questions of fact relating to appreciation of evidence. As regards question no. (iv). even though the said question is a question of law but the same does not arise in the facts of this case. Consequently, both these appeals are dismissed with no order as to costs.