Agreement to Sell – Date on agreement to sell alleged to be interpolated – Evidence led through Attorney who was not signatory to agreement – His evidence cannot be substituted to the evidence of plaintiff – Appeal dismissed

Mr. Anil Kshetarpal, J.:- By this common judgment, I shall be disposing of RSA No.2455 of 2003 and RSA No.4967 of 2014. The facts are being taken from RSA No.4967 of 2014.

2. Plaintiff is in appeal against the concurrent findings of fact arrived at by the Courts below.

3. Detailed facts have been noticed by the Court, however, to complete the narrative some brief facts are being noticed.

4. Plaintiff filed a suit for specific performance of the agreement to sell dated 10.03.1994. It was pleaded that out of total earnest money of Rs.30,00,000/-, Rs. 10,00,000/- was paid to defendants no.1 and 2 and land measuring 2 kanals 13 marlas and 12 sq. feet area comprised in plot nos. 7 and 8 was agreed to be sold. It was pleaded by the plaintiff that the target date for execution and registration of the sale deed was 24.09.1994. The suit for specific performance of the agreement to sell was filed on 23.09.1994. Plaintiff had further pleaded that another sum of Rs.14,00,000/- was paid to defendant nos.1 and 2.

5. Defendants contested the suit. The execution of the agreement to sell was not disputed, however, it was pleaded that the original agreement did not bear the date of the execution. It was further pleaded that in the last line of first page of the agreement, originally the date for execution and registration of the sale deed was 24.04.1994, which has been by overwriting made to 24.09.1994, to bring the suit within limitation. It was further pleaded that at the time of execution of the agreement, Amarjit has not attested the agreement and even the signatures of the second attesting witness Thakur Rajeev Singh has been obtained after the execution of the agreement. The receipt of Rs.10,00,000/- was admitted, however, receipt of Rs.14,00,000/- was denied.

6. Both the Courts after appreciation of the evidence available on the file, have dismissed the suit filed by the plaintiff on various grounds, however, important once are as under:-

(i) the agreement to sell has been interpolated and the date fixed for execution and registration of the sale deed was 24.04.1994, which has been changed to 24.09.1994. The Courts below relied upon a report of the Documents and Finger Print Expert. The Documents For Subsequent orders see COCP-594-2018 and Finger Print Expert has produced on file enlarge photograph, which prove this fact.

(ii) Further payment of Rs.14,00,000/- is not proved on the file because there is no receipt and the evidence produced by the plaintiff is not reliable.

(iii) the suit was barred by time as the original date for execution and registration of the sale deed was 24.04.1994, whereas the suit has been instituted on 23.09.1997 i.e., after more than three years from the date fixed for execution and registration of the sale deed.

7. I have heard learned counsel for the parties at length and with their able assistance gone through the judgments and decrees passed by the Courts below as well as the original record brought before me.

8. Learned counsel for the appellant has made the following arguments:-

(i) that the land was under mortgage and, therefore, the plaintiff was justified in insisting upon redemption of the mortgage. He has submitted that redemption of the mortgage took place on 02.05.1997 and, therefore, the cause of action would be deemed to have started therefrom.

(ii) Finding of the first appellate Court that the bank with whom the land was mortgaged is not a party, is factually incorrect as the bank was party defendant in the suit i.e. defendant no.3. For Subsequent orders see COCP-594-2018.

(iii) The mortgage of the land is being denied in the written statement and it was only admitted in the evidence when the defendants had been cornered.

(iv) That in any case, plaintiff was entitled to refund of the amount, which has been paid as earnest money and admitted by the defendants.

9. On the oth