Punjab-Haryana High Court
Harbans Singh vs Didar Singh on 27 October, 2009
Author: Sabina
Bench: Sabina
RSA No. 2717 of 2008(O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
R.S.A. No. 2717 of 2008 (O&M)
Date of Decision:October 27,2009
Harbans Singh ...........Appellant
Versus
Didar Singh ..........Respondent
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.Arvind Kashyap, Advocate for the appellant.
Mr.R.S.Pandher,Advocate for the respondent
**
Sabina, J.
Plaintiff filed a suit for specific performance of contract of sale dated 4.6.1996 executed by the defendant in favour of the plaintiff. The suit of the plaintiff was partly decreed by the Additional Civil Judge (Senior Division) Fatehgarh Sahib vide judgment and decree dated 22.2.2007. The appeal filed by the defendant was dismissed,whereas, the appeal filed by the plaintiff was accepted by the District Judge, Fatehgarh Sahib dated 30.5.2008. Hence, the present appeal by the defendant.
The case of the parties, as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment reads as under:-
"2. The case of the plaintiff in brief is that the defendant entered RSA No. 2717 of 2008(O&M) 2 into an agreement to sell his land measuring 8 kanals comprising of Khewat Khatoni No.25/44, Khasra No.19//10(8-0) situated in village Peerjain, Tehsil and District Fatehgarh Sahib, for consideration of Rs. 1 lac. An agreement to this effect was executed by the defendant on 4.6.1996 after receiving Rs.13,000/- as earnest money. The date of execution of sale deed was fixed as 6.6.1997. The terms and conditions of the transaction were incorporated in the agreement. The plaintiff has always been ready and willing to perform his part of the agreement. On the date fixed for execution of sale deed, he reached the Tehsil Head Quarter at Fatehgarh Sahib with required money to get the sale deed executed, but the defendant did not turn up. The plaintiff got an affidavit attested from the Sub Registrar-cum-Executive Magistrate, Fatehgarh Sahib to this effect. The defendant was required many times to execute the sale deed, but in vain, Hence, this suit wherein, the plaintiff has sought specific performance of the agreement to sell and in the alternative for recovery of Rs.1 lac as damages.
3. The defendant Harbans Singh contested the claim of the plaintiff in the written statement filed by him wherein, he denied the execution of the agreement and receipt of the earnest money as alleged by the plaintiff. He has alleged that if any such agreement is proved, the same is false, forged, fabricated, self- created, manipulated and the result of fraud and mis- representation. All other averments of the plaintiff have also been contested and controverted with the plea that the plaintiff is not RSA No. 2717 of 2008(O&M) 3 entitled to any relief of specific performance or alternative relief as claimed by him."
On the pleadings of the parties, the following issues were framed by the trial Court:-
"1. Whether the plaintiff is entitled to specific performance as prayed for?OPP
2. Whether the plaintiff is entitled to recovery in the alternative as prayed for?OPP
3. Whether the plaintiff is entitled to permanent injunction as prayed for?OPP
4.Whether the suit is not maintainable in the present form?OPD
5.Whether the plaintiff has no locus standi and cause of action to file the present suit?OPD
6. Whether plaintiff is estopped by his own act and conduct?OPD
7. Whether the suit is time barred?OPD
8. Relief".
Learned counsel for the appellant has submitted that the suit of the plaintiff was liable to be dismissed as there was material alteration in the agreement to sell. The date for execution of the sale deed was altered from 6.6.1996 to 6.6.1997 to make the suit within the period of limitation.
Learned counsel for the respondent, on the other hand, has submitted that the execution of the agreement to sell had been duly proved by the plaintiff. The agreement to sell was executed on 4.6.1996 and there was no occasion to fix the date for execution of the sale deed after two days i.e.6.6.1996.
The substantial question of law that arises in this case is RSA No. 2717 of 2008(O&M) 4 whether the suit could be decreed on the basis of a document which had been materially altered and, consequently, whether the findings of the Courts below are perverse.
In the present case, a perusal of the agreement to sell dated 4.6.1996 (Exhibit P1) reveals that the date fixed for execution of the sale deed has been altered from 6.6.1996 to 6.6.1997. The said alteration is not initialed by the Scribe or any of the parties. The alteration is a material one. The suit was filed by the plaintiff for specific performance of the agreement to sell dated 4.6.1996 on 30.5.2000. In case, the date fixed for execution of the sale deed was 6.6.1996, the suit of the plaintiff was time barred. However, in case the date of the execution of the sale deed is to be taken as 6.6.1997, the suit of the plaintiff comes within the period of limitation. Thus, the plaintiff was required to satisfy the Court that the agreement to sell had not been tampered with and the date for execution of the sale deed had been altered from 6.6.1996 to 6.6.1997 with the consent of the parties. Since the alteration in the date is not signed by the Scribe or any of the parties, it renders the document unreliable.
The argument raised by the learned counsel for the appellant that there was no occasion for fixing the date of execution of the sale deed after two days of the execution of the agreement to sell, carries no weight. It was for the parties to decide as to when they wanted to execute the sale deed after the execution of the agreement to sell. In order to prove his case, plaintiff appeared in the witness box himself as PW1 and examined PW2 Hem Raj Verma, Deed Writer. In the facts of the present case, it was necessary for the plaintiff to have examined the attesting witness of the agreement to sell who could have also deposed with regard to the fact that RSA No. 2717 of 2008(O&M) 5 alteration of the date had been agreed between the parties for execution of the sale deed. The Scribe has also not explained in his examination-in- chief regarding the cutting made by him with regard to the date fixed for execution of the sale deed. Scribe atleast, in his examination-in-chief, should have mentioned that under what circumstances the date fixed for execution of the sale deed was altered from 6.6.1996 to 6.6.1997. Thus, the suit of the plaintiff could not be decreed on the basis of the tampered agreement to sell and,hence, findings of the Courts below are perverse.
Accordingly, this appeal is allowed. The impugned judgments and decrees of the Courts below are set aside. Consequently, the suit of the plaintiff is dismissed with costs.
( Sabina ) Judge October 27, 2009 arya