Judgment

Mr. Harkesh Manuja, J.

By way of present appeal, challenge has been laid to the judgments and decrees dated 29.11.2013 and 31.10.2017 passed by the Courts below whereby suit for possession by way of specific performance as well as permanent injunction filed by respondent-plaintiff has been decreed against appellant-defendant.

2. Briefly stating, based on an agreement to sell dated 28.05.2008, regarding 8 Kanals of land situated in Village Mai Ditta, Tehsil and District, Nawanshahr, the respondent-plaintiff filed a suit for possession by way of specific performance with the averments that the total sale consideration was Rs.8,00,000/- with Rs.3,75,000/- as the earnest money with 31.10.2008 being the target date which was later extended up to 31.12.2008. It was stated that since the appellant-defendant failed to execute the sale deed thereby compelling the respondent-plaintiff to file the suit besides praying for permanent injunction as well as for restraining respondent-defendant from interfering in his peaceful possession.

3. Upon notice, the appellant-defendant though admitted his thumb impressions on the alleged agreement, however, denied its execution as pleaded in the plaint while submitting that his thumb impressions were obtained on certain blank papers by the respondent-plaintiff who works as a travel agent and the appellant-defendant had visited him for sending his son abroad, thus, the agreement in question was forged and fabricated one.

4. The trial Court vide judgment and decree dated 29.11.2013 decreed the suit filed at the instance of respondent-plaintiff. Aggrieved thereof, the appellant-defendant filed First Appeal, the same was dismissed by the First Appellate Court vide judgment and decree dated 31.10.2017.

5. Impugning the aforementioned judgments and decrees passed by Courts below, learned counsel for the appellant-defendant vehemently submits that the agreement in question was never proved on record. Referring to the agreement (EX.P-1), learned counsel also submits that though the names of the attesting witnesses were typed on the agreement, however, the same was never signed by them. He further submits that the readiness and willingness as envisaged under Section 16 of the SPECIFIC RELIEF ACT , 1963 (hereinafter referred to as 1963 Act) was not established at the hands of respondent-plaintiff and thus the suit could not have been decreed. In addition, learned counsel for the appellant also points out that the appellant-defendant was able to establish hardship in his favour and thus relying upon Section 20 of 1963 Act submits that the suit could have been decreed regarding the alternate relief rather than awarding decree of specific performance in favour of respondent-plaintiff. No other argument has been addressed.

6. I have heard learned counsel for the appellant and gone through the records. I am unable to find substance in the submissions made on behalf of the appellant.

7. Mere non-signing by the attesting witnesses over the agreement in question would not invalidate the contract as there is no statutory requirement in law to get an agreement to sell attested by the witnesses. In fact, the witnesses to an agreement are merely marginal witnesses and not the attesting witnesses. Nonetheless, a perusal of the agreement in question Ex.P-1 even shows that its last page was duly signed by the marginal witnesses and thus the plea of non-signing was not made out from the facts in hand. Reliance in this regard can be placed upon a decision of Hon’ble Supreme Court in case of “ Ram Khilona Vs. Sardar , 2002 AIR (Supreme Court) 2548” wherein also it has been observed that