RSA No.4107 of 2007

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IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

RSA No.4107 of 2007

Date of Decision: 03.08.2010.

Makhan Singh

.……Appellant

Versus

Harmeet Singh

……Respondent

Coram:-

HON’BLE MR. JUSTICE L. N. MITTAL.

Present:

Mr. V. K. Kaushal, Advocate for the appellant.

Mr. I. S. Brar, Advocate for the respondent.

L. N. MITTAL, J (ORAL)

Makhan Singh-defendant has filed the instant second

appeal, having remained unsuccessful in both the Courts below.

Harmeet Singh-plaintiff-respondent filed suit against

appellant for possession of the suit land by specific performance of

the agreement to sell. The plaintiff alleged that the defendant vide

agreement dated 16.05.2002 agreed to sell 11 kanals 18 marlas land

in suit to the plaintiff for Rs.1,85,940/- and received Rs.1,00,000/- at

the time of the agreement. Sale deed was to be executed upto

31.05.2003. Defendant could not execute the sale deed till that date

due to some problem. On 22.08.2003, defendant received further

amount of Rs.25000/- from the plaintiff vide receipt executed on the

back of the agreement and extended the date of execution of sale

deed till 31.05.2004. The plaintiff always remained ready and willing

to perform his part of the contract, but the defendant committed

RSA No.4107 of 2007

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breach thereof.

Defendant inter alia pleaded that he never agreed to sell

the suit land to the plaintiff nor executed any agreement nor received

any amount from the plaintiff. The impugned agreement is forged

and fabricated. The defendant, who is a farmer, used to sell his crop

at the shop of the plaintiff, who is a Commission agent. The plaintiff

might have obtained signatures or thumb impressions of the

defendant on some blank stamp papers/pronotes or receipts and

later on prepared the alleged agreement.

Learned Additional Civil Judge (Senior Division), Faridkot

vide judgment and decree dated 11.04.2007 decreed the plaintiff's

suit. First appeal preferred by the defendant stands dismissed by

learned District Judge, Faridkot vide judgment and decree dated

07.06.2007. Feeling aggrieved, defendant has preferred the instant

second appeal.

I have heard learned counsel for the parties and perused

the case file.

At the outset, it has to be noticed that at the time of

motion hearing on 11.07.2008, it was observed that the plaintiff-

Harmeet Singh appeared in the witness box on 13.12.2004 and

tendered his affidavit of examination-in-chief and his cross-

examination was referred and later on, cross-examination of one

Sukhdev Singh instead of Harmeet Singh-plaintiff was recorded on

17.10.2006, but the said statement dated 17.10.2006 was signed by

Harmeet Singh-plaintiff as maker of the statement. Consequently,

the trial Court was directed to hold inquiry and to make report.

RSA No.4107 of 2007

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Pursuant thereto, report has been received from the trial Court vide

letter No.316 dated 25.07.2008. Statements of counsel representing

both the parties in the trial Court were recorded and statements of

plaintiff and also the Court Reader, who had recorded the statement

on 17.10.2006, were recorded during inquiry. All of them stated that

it was plaintiff Harmeet Singh, who had appeared as witness for

cross-examination and his statement had been recorded on

17.10.2006 and the Reader inadvertently mentioned the name as

Sukhdev Singh. This position was admitted even by counsel

representing the defendant in the trial Court. Accordingly, it becomes

manifest that the statement by cross-examination recorded on

17.10.2006 in the name of Sukhdev Singh was in fact statement of

Harmeet Singh-plaintiff.

The plaintiff himself appeared in the witness box and

examined Gulshan Kumar, Advocate PW-2, who had scribed the

agreement as well as subsequent receipt and also examined

Sukhdev Singh attesting witness of the agreement as PW-3. All of

them have stated accordi