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2008 Supreme(P&H) 1838
2009(1) LAW HERALD (P&H) 241
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Jain
RSA No.2195 of 2004
Dhan Singh
v.
Kanwar Bhan
{Decided on 03/11/2008}
For the Appellant:Mr. Sandeep Kotla, Advocate.
For the Respondents No.2 to 4:Mr. Avinash Chander Jain, Advocate with Ms. Aparna Jain, Advocate.
IMPORTANT POINT
Hand-writing--Comparison of--Not essential that hand writing must be examined to prove or disapprove disputed signature--Court can form its own opinion by comparing disputed signatures with admitted signature.
Headnote:(A) Specific performance--Agreement to sell--Execution of--Proof--Burden of proof is upon plaintiff that defendant executed agreement and received amount on same day against a receipt--But he did not get examined documents through his own hand-writing expert to prove genuineness of signature on documents by defendants--Rather plaintiff tried to shift burden on defendants that they had not engaged Hand-writing expert--Finding by Courts below that agreement and receipt not proved to be executed by defendants in favour of plaintiff--Plaintiff not entitled to specific performance of sale of plot. (Para 8)
(B) Civil Procedure--Hand-writing--Comparison of--Not essential that hand writing must be examined to prove or disapprove disputed signature--Court can form its own opinion by comparing disputed signatures with admitted signature. (Para 8)
Rakesh Kumar Jain, J.:- The plaintiff is in second appeal against the judgment and decree of both the Courts below whereby his suit for specific performance has been dismissed.
2. The case of the plaintiff is that defendants No. 1 and 2 themselves and defendants No.3 and 4 through their power of attorney defendant No.2, entered into an agreement to sell with the plaintiff on 27.12.1988 for the sale of plot measuring 800 square yards for a consideration of Rs.1,20,000/-. As per the plaintiff the entire sale consideration was paid to defendants No.1 and 2 on the date of agreement against receipt and it was agreed between the parties that the sale deed shall be executed as and when desired by the plaintiff. It was further averred by the plaintiff that defendant No.9 Jagbir Singh proposed the plaintiff to purchase the said plot by offering him some profit but the plaintiff did not oblige him and defendant No.9 challenged the plaintiff that he would not get the sale deed executed in his favour. The plaintiff requested defendants No.1 and 2 to get the sale deed executed and registered but they avoided the same on one pretext or the other. Ultimately, the plaintiff sent a legal notice on 22.2.1989 but in the meanwhile defendants No.1 to 4 alienated the suit property in favour of defendants No.5 to 9 by executing different sale deeds on 2.3.1989. The plaintiff has thus challenged the legality and validity of the sale deeds executed by defendants No.1 to 4 in favour of defendants No.5 to 9 on the ground that they have violated the terms and conditions of agreement dated 27.12.1988 and also prayed for the specific performance of the agreement for which he was always ready and willing to perform his part of the contract. Defendant No.5 did not appear before the trial Court, therefore, she was proceeded against ex-parte whereas defendants No.6 to 8 who had appeared but, after some time they did not appear, were also proceeded against ex-parte. Defendants No. 1 to 4 filed their joint written statement in which they denied the existence of agreement as well as the receipt rather it was alleged that the agreement and the receipt dated 27.12.1988 is an act of fraud and manipulation on the part of the plaintiff as it does not bear the signatures of defendants No.1 and 2. It was also alleged that the plaintiff has forged the signatures of the defendants on these documents i.e. the agreement and the receipt in collusion with his witnesses. It was averred by defendants No.1 to 4 that they have sold the plot in question to defendants No.5 to 9 as they have not entered into an agreement with the plaintiff. Defendant No.9 Jagbir filed a separate written statement and resisted the suit by taking a stand that defendants No.1 and 2 had entered into an agreement dated 16.12.1988 with regard to the plot in question and had executed registered sale deed in his favour as well as in favour of defendants No.5 to 8 on 2.3.1989. He also denied the allegations that he ever visited the house of the plaintiff or threatened him as stated by the plaintiff. The plaintiff filed replication controverting the averments made by defendants No.1 to 4 in the written statement and reiterated the stand taken by him in the plaint.
3. On the pleadings of the parties, the following Issues were framed by the trial Court:
(i) Whether the defendants No.1 to 4 were the owners in possession of the suit property, as alleged? OPP.
(ii)Whether the defendants No.1 to 4 executed an agreement on 27.12.1988 for the sale of suit property for a consideration of Rs.1,20,000/- as alleged? OPP.
(iii) Whether the plaintiff paid Rs.1,20,000/- to the defendants No.1 to 4 as per receipt dated 27.12.1988 as alleged? OPP.
(iv) If issue Nos.1 to 3 are proved then whether the defendants No.1 to 4 are bound to perform the part of the contract dated 27.12.1988, as alleged? OPP.
(v) Whether the sale deeds No.4454 to 4457 dated 2.3.1989 executed by defendants No.1 to 4 in favour of defendants No.5 t
