Punjab-Haryana High Court
Sukhbir Singh vs Suraj Bhan on 19 April, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
RSA NO.1679 OF 2012 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
REGULAR SECOND APPEAL NO.1679 OF 2012 (O&M)
DATE OF DECISION: 19th April, 2012
Sukhbir Singh
... Appellant
Versus
Suraj Bhan
.... Respondent
CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.
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PRESENT: Mr. Shilak Ram Hooda, Advocate for the appellant.
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L.N. MITTAL, J. (Oral)
CM No.4594-C of 2012 For reasons mentioned in the application, which is accompanied by affidavit, delay of 27 days in filing the appeal is condoned.
The application stands allowed accordingly.
CM No.4595-C of 2012 For reasons mentioned in the application, which is accompanied by affidavit, delay of 64 days in refiling the appeal is condoned.
The application stands allowed accordingly.
RSA No.1679 of 2012 Defendant Sukhbir Singh having lost in both the courts below has filed this second appeal.
Respondent-plaintiff Suraj Bhan filed suit against defendant- appellant for possession of the suit land measuring 8 kanals by specific performance of agreement to sell dated 07.01.2005 alleging that the defendant RSA NO.1679 OF 2012 (O&M) -2- agreed to sell the suit land to the plaintiff for Rs.4,00,000/- and received Rs.1,50,000/- as earnest money and executed agreement dated 07.01.2005. Sale deed was agreed to be executed up to 15.12.2005. Accordingly on 15.12.2005, the plaintiff remained present in the office of sub-Registrar with requisite amount to get the sale deed executed in terms of the agreement, but the defendant did not turn up and committed breach of the agreement whereas the plaintiff has always been ready and willing to perform his part of the contract. The plaintiff even served notice dated 07.02.2006 on the defendant but the defendant sent false reply that he had borrowed Rs.20,000/- from the plaintiff.
The defendant resisted the suit and controverted the plaint averments. The defendant alleged that he had borrowed Rs.20,000/- from the plaintiff in the presence of Subhash and at that time, the plaintiff obtained thumb impressions of the defendant on blank papers including a blank stamp paper. The defendant repaid the amount of Rs.20,000/- and demanded back the blank thumb marked papers. The plaintiff replied that he had prepared the impugned agreement on the said papers. The impugned agreement is false and frivolous. No earnest money of Rs.1,50,000/- was paid to the defendant. The defendant moved complaint on 13.03.2006 to the police and also sent reply to notice of the plaintiffs.
Learned Civil Judge (Senior Division), Sonipat vide judgment and decree dated 17.11.2010 decreed the plaintiff's suit. First appeal preferred by defendant has been dismissed by learned Additional District Judge, Sonipat vide judgment and decree dated 26.08.2011. Feeling aggrieved, defendant has filed this second appeal.
RSA NO.1679 OF 2012 (O&M) -3- I have heard learned counsel for the appellant and perused the case file.
The plaintiff himself appeared in the witness box as PW-4 and examined Naresh PW-1 attesting witness of the agreement and Mr. V. B. Kashyap, Hand Writing and Finger Print Expert PW-2. Plaintiff and Naresh broadly stated according to plaintiff's version. Mr. V. B. Kashyap, expert PW2 stated that thumb impressions on the impugned agreement mach with specimen thumb impressions of the defendant.
On the other hand, defendant himself appeared as DW-1 and broadly stated according to his version.
The Plaintiff has led sufficient cogent evidence to prove due execution of the agreement by the defendant and payment of Rs.1,50,000/- as earnest money. Plaintiff's version in this regard is supported by his own testimony besides testimony of Naresh attesting witness of the agreement. Thumb impressions on the impugned agreement are proved to be of the defendant from the statements of these two witnesses and also from the testimony of finger print expert Mr. V. B. Kashyap. Science of comparison of finger print is perfect science. Testimony of Mr. V. B. Kashyap, Finger Print Expert has not been rebutted in any manner by the defendant. No finger print expert has been examined by the defendant in his defence. On the contrary, by pleading in written statement, defendant has impliedly admitted his thumb impressions on the impugned agreement. Self serving statement of the defendant is not sufficient to prove alleged fraud or to rebut the aforesaid credible evidence led by the plaintiff.
Counsel for the appellant contended that fraud is apparent on the RSA NO.1679 OF 2012 (O&M) -4- face of the agreement because market price of the suit land was much more than recited in the agreement. The contention is completely meritless being beyond pleadings as well as evidence. There is neither any such plea in the written statement that sale consideration was inadequate nor any evidence has been led to this effect. No sale instance of any comparable land has been produced in evidence to substantiate this contention.
Counsel for the appellant also contended that Subhash second attesting witness of the agreement has not been examined by the plaintiff as witness. However, Section 134 of the Evidence Act stipulates that no particular number of witnesses shall be necessary to prove a fact. Even otherwise, Courts have repeatedly laid down that all witnesses of the same fact are not required to be examined to burden the file. Examination of Subhash also as witness by the plaintiff would have been avoidable duplicity of evidence. Moreover, even defendant did not examine Subhash as witness in his evidence. The defendant pleaded in the written statement that he had borrowed Rs.20,000/- from the plaintiff who obtained his thumb impressions on the blank papers in the presence of Subhash. In spite of this plea raised by the defendant in the written statement, the defendant did not dare to examine Suhbash as witness. Consequently adverse inference arises against the defendant.
Counsel for the defendant-appellant contended that the defendant appellant had moved application for additional evidence in the lower appellate Court to examine Subhash as witness and the same was not allowed by the lower appellate Court. There is no explanation why the defendant did not examine Subhash during trial of the suit at appropriate stage while defendant RSA NO.1679 OF 2012 (O&M) -5- was leading his evidence. So, his prayer for additional evidence was rightly declined by the lower appellate Court.
There is no reason why the defendant would have repaid alleged loan amount of Rs.20,000/- to the plaintiff without simultaneously taking back the blank thumb marked papers. Consequently version of the defendant in this regard cannot be accepted.
The defendant alleged that he had made complaint to the Police. Counsel for defendant-appellant stated during the course of arguments that on the said complaint, no FIR was registered by the Police. This circumstance also goes against the defendant-appellant.
For the reasons aforesaid, I have no hesitation in concluding that there is no infirmity in concurrent finding recorded by the Courts below to decree the suit of the plaintiff. The said finding is not shown to be perverse or illegal or based on misreading or misappreciation of evidence. On the other hand, the said finding is the only re0asonable finding that can be arrived at by any prudent person on appreciation of the evidence on record. Therefore, the said finding does not warrant any interference. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is completely meritless and is, therefore, dismissed in limine.
(L. N. MITTAL) JUDGE 19.04.2012 'raj'