The credibility of attesting witnesses is crucial in determining the validity of an agreement to sell, especially when mutual interests among them are evident.

JUDGMENT :

Pankal Jain, J.

CM-3822-C-2020 & CM-3823-C-2020

These applications have been filed seeking condonation of delay of 934 days in re-filing and 32 days in filing the present appeal.

For the reasons recorded, the application, this Court is satisfied that the applicant-appellant has shown sufficient cause to condone the delay in re-filing/filing the appeal.

Applications are allowed. Delay in re-filing and filing the appeal is condoned.

Main Case

1. Plaintiff is in second appeal. For convenience parties hereinafter are referred to by their original position in the suit i.e. the appellant as plaintiff and respondent as defendant.

2. Plaintiff filed suit seeking decree of specific performance of an agreement to sell dated 01.04.2010. The pleaded case of the plaintiff was that agreement to sell was executed by defendant in her favour on 01.04.2010 after receiving earnest money of Rs.1.00 Lac. As per the agreed terms sale deed was to be executed on or before 30.11.2010 on payment of balance sale consideration. The total sale consideration was agreed to be Rs.4.00 lacs. Plaintiff in order to prove his case examined Lakhvir Singh and Bhim Sain, two attesting witnesses as PW1 and PW2 respectively. Both the witnesses supported the case of the plaintiff, however, could not reveal the name of the scribe. Defendant contested the suit and denied the execution of an agreement sell dated 01.04.2010 propounded by the plaintiff. She pleaded that she obtained loan from friend of plaintiff namely Suresh Kumar son of Lachman Dass who obtained her blank cheques as security. A stamp paper dated 28.04.2009 signed by the defendant was also kept as security by the plaintiff in lieu of the borrowed amount. Later, a dispute arose. The matter was taken before Punchayat. Though Suresh Kumar destroyed the cheques but did not return the blank stamp paper back and prepared false and forged agreement to sell on the same. It has further come on record that with respect to forgery police complaint was filed that led to registration of FIR. Suit filed by plaintiff was put to trial framing following issues:-

“1. Whether the defendant executed the agreement to sell dated 01.04.2010 in favour of plaintiff and received earnest amount and did not comply the terms and condition of agreement to sell in question? OPP

2. If issue no.1 is proved, whether the plaintiff is entitled to relief of specific performance of the agreement to sell in question as prayed for? OPP

3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?OPP

4. Whether the plaintiff is entitled is to the alternative relief of recovery alongwith interest as prayed for? OPP

5. Whether agreement to sell is forged and fabricated document? OPD

6. Whether the plaintiff has no locus-standi and cause of action to file the present suit? OPD

7. Relief”

3. Both the Courts below disbelieved plaintiff and dismissed the suit holding that the attesting witness to the agreement to sell are not trust-worthy. It has also come on record that there are number of suit filed at the behest of plaintiff pending before the Court in which the same attesting witnesses are the cited witnesses and there are certain suits filed at the behest of the attesting witness wherein the present plaintiff is a cited witness. It also came on record that an inquiry was conducted in the criminal case. Inquiry report was placed on record as Ex.DW1/A where in Dharshan Singh Dhaliwal, Stamp vendor stated that stated that the stamp paper was sold by him to Mohinder Kaur only on 28.04.2009.

4. Learned counsel for the plaintiff while assailing the impugned judgments passed by the Courts below has raised two fold submissions. It has been contended by him that the attesting witnesses have fully supported the case of the plaintiff and therefore, agreement to sell stands proved. In the absence of finding that any attesting witnesses is interested or is not trust-worthy, the suit filed by the plaintiff could not be dismissed. He f