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In the High Court of Punjab and Haryana, at Chandigarh
Regular Second Appeal No. 5225 of 2014 (O&M)
Date of Decision: 20.04.2022
Gurm ail Singh
... Appellant(s)
Versus
Sukhdev Singh
... Respondent(s)
CORAM: Hon'ble Mr. Justice Anil Kshetarpal.
Present: Mr. Sanjeev Kumar, Advocate for Mr. Jai Bhagwan, Advocate for the appellant(s).
Mr. M.S.Cheema, Advocate for the respondent.
Anil Kshetarpal, J.
1. While assailing the concurrent findings of fact, arrived at by both the Courts below, the plaintiff has filed the present appeal. Both the Courts below have dismissed his suit for grant of decree for specific performance of the agreement to sell.
2. In the considered opinion of the Court, the following issues require adjudication:
i) Whether the agreement to sell is required to be mandatorily attested by the two attesting witnesses mandatorily and proved in accordance with Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as “the 1872 Act”) i.e. like a Will, gift deed or mortgage deed?
ii) Whether a written agreement to sell, duly signed/thumb marked by the parties, can be ignored on the ground that it is surrounded by the suspicious circumstances for which no foundation is laid in the pleadings?
iii) Whether the insignificant inconsistency in the oral evidence is sufficient to discard the written agreement entered into between the parties, duly signed and thumb marked by them?
3. Some facts are required to be noticed. The plaintiff filed the present suit on 25.05.2007 for the specific performance of the agreement to sell dated 28.01.1992 with respect to a plot measuring 3 biswas for a sum of ₹12,000/- on receipt of the entire sale consideration on delivery of possession. The plaintiff , in the alternative, prayed for recovery of the amount along with interest and also prayed for the grant of decree of permanent injunction restraining the defendant from interfering in his peaceful possession. He further asserted that despite a notice on 08.05.2007, the defendant has not come forward to perform his part of the contract.
4. The defendant contested the suit while asserting that he never entered into any agreement to sell with the plaintiff on receipt of the amount alleged. He took a stand that the alleged agreement to sell dated 28.01.1992 is forged, fictitious, without consideration and is a result of fraud. He further took a stand that he never negotiated with regard to the alienation of the property in favour of Pandit Mohan Lal son of Sh. Shyam Lal, resident of village Bhumsi, Tehsil Malerkotla. The plaintiff filed replication and reiterated his stand in the plaint.
5. On examination of the pleadings, the trial Court culled out the following issues:-
“1. Whether the defendant agreed for the sale of disputed property in favour of plaintiff vide agreement dt. 28.01.1992? OPP
2. Whether the defendant received the sale consideration of Rs.12,000/- from the plaintiff? OPP
3. Whether the plaintiff remained ready and willing to perform his part of the agreement? OPP
4. Whether the plaintiff is entitled to specific performance of the agreement dated 28.01.1992 or the alternative remedy? OPP
5. Whether the defendant is threatening to alienate and dispose of the disputed property to some one else and to dispossesses the plaintiff from the same illegally and forcibly? OPP
6. Whether the suit is maintainable? OPPD
7. Whether the suit is within limitation? OPP
8. Whether plaintiff is estopped from filing the suit by his act and conduct? OPD
9. Relief”.
6. In order to prove his case, the plaintiff examined PW.1 Surjit Singh, who is stated to be the marginal witness to the agreement to sell. He deposed that the agreement to sell was scribed in his presence by Subhash Chander Jain and Surjit Singh, after the receipt of the consideration amount, signed the agreement to sell in his presence and in the presence of the plaintiff as well as other witnesses. He further deposed that the scribe made an entry in his note-book and the same was also signed by the defendant as well as the witnesses including himself. He stated that the document was scribed in the Tehsil Complex, where the Tehsildar has his office. However, the agreement was not presented before the Sub-Registrar. The agreement was signed in the presence of another marginal witness, namely, Mohinder Singh.
7. PW.2 Amrik Singh, Draftsman, proved the layout plan o
