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HARBANS SINGH & Ors. v. RAM SINGH & Ors. - RSA-4321-2005 [2005] RD-P&H 170 (4 October 2005)


R.S.A. No.4321 of 2005











Present:- Mr.J.S.Brar,Advocate

for the appellants.



This is plaintiffs' appeal filed under Section 100 of the Code of Civil Procedure, 1908(for brevity 'the Code'), challenging concurrent findings of fact recorded by both the Courts below holding that the plaintiff-appellants are not entitled to the relief of specific performance of agreement to sell, which was originally executed on 25-10-1989 and allegedly extended from time to time in respect of extending the date of execution of the sale-deed. Both the courts below have found that the claim of the plaintiff-appellants with regard to delivery of possession to them has not been proved as no cogent evidence has been adduced. It is appropriate to mention that the plaintiff-appellants have claimed that when the agreement to sell dated 25-10-1989 (Ex.PW7/A) was executed, the possession of the

suit land was delivered to them, especially when there is no mention or recital in that regard in the agreement to sell dated 25-10-1989 (Ex.PW7/A). Further the reasoning adopted by the Courts below is that, it is highly improbable even otherwise to accept that a vendor would deliver possession of the property after accepting earnest amount of Rs.25000/- out of the total sale consideration of Rs.3,41,000/-.

On the issue of extension of the date, there is a detailed discussion by both the Courts on the reports submitted by the experts. It has been held that the plaintiff-appellants, with the object of obtaining the relief of specific performance had forged, document Ex.PW11/B and no additional money of Rs.50,000/- was paid to the defendant-respondent on 3-4-1991. No evidence has been produced on record by the plaintiff- appellants to prove that aforementioned amount was available with them.

Moreover, it has been found that the extension Ex.PW11/A was the last extension which expired on 3-4-1991 and yet the plaintiff-appellants did 1991 has also been found to be suspicious writing and ,therefore, has not been treated as a document granting extension of time for execution of sale-deed to the plaintiff-appellants. The signatures of defendant- respondent Ram Singh, on the aforementioned writing, have been found to be forged. Further extension upto 10-5-1993 and payment of Rs.97,500/-, by virtue of Ex.PW10/A have not been accepted by the courts below and the document has been found to be forged. The reason given is that, from 3-4-1991 to 21-4-1993, the parties were not expected to remain silent. On the contrary the version of the defendant-respondent has been accepted when he asserted that on 3-4-1991 the plaintiff-appellants took back Rs.1 lac from him and then left the deed. The original agreement to sell was not returned by the plaintiff- appellants on the pretext that same was not traceable. It was ,however, promised that the plaintiff-appellants would return the same, which in fact was never returned as they had evil design of committing forgery, which they did.

Mr.J.S. Brar, learned counsel for the plaintiff-appellants has vehemently argued that defendant-respondent No.1, in his written statement has admitted the execution of the agreement to sell and also acknowledges the receipt of Rs.1 lac in total, as earnest money up to 31- 12-1991. According to the learned counsel, the findings of both the Courts below on the writings Ex.PW11/B dated 5-3-1991, Ex.PW11/C dated 3-4-1991and Ex.PW10/A dated 21-4-1993 are based on no evidence because the plaintiff-appellants have duly proved those writings by producing the scribes and attesting witnesses. Learned counsel has maintained that the defendant-respondents have further received a sum of Rs.1,47,500/-. The plea of the defendant-respondent Ram Singh that the aforementioned writing was forged and he never signed the same, cannot be accepted because he never appeared in the witness-box to substantiate those pleas. In support of his submission, learned counsel has placed reliance on judgment of Supreme Court in case of Rajappa Hanamantha Ranoji v. Mahadev Channabasappa & ors. AIR 2000,SC page 2108 and argued that non-examination of one of the respondent as witness like the defendant-respondent would not amount to re-appreciation of evidence.

Therefore, such a question must be treated as a question of law.

Having heard the learned counsel and perusing the judgments

of both the courts below, I am of the considered view that there are concurrent findings of fact with regard to documents Ex.PW11/B dated 5-3-1991and Ex.PW11/C dated 3-4-1991 that the plaintiff-appellants have forged those documents. According to Ex.PW11/B, the plaintiff- appellants are alleged to have paid Rs.50,000/- as earnest money to defendant-respondent No.1 and had got the date of execution of sale- deed extended. On both the documents, the signatures of the defendant- respondent No.1 Ram Singh have been found to be forged. Similarly signatures of Ram Singh have also been found to be forged on another writing Ex.PW10/A dated 24-4-1993, which witnesses payment of Rs.97,500/- more as earnest money and the date for execution of the sale-deed, alleged to have been extended by defendant-respondent No.1 Ram Singh, up to 10-5-1993. A detailed discussion by the trial court under issue No.2 is available in para Nos. 13 to 38 of its judgment, in which a categoric finding has been recorded about the forgery committed by the plaintiff-appellants. The learned lower appellate court has also discussed in detail all the contentions of the plaintiff-appellants in para Nos.12 to 15 of its judgment. It is further appropriate to mention that a criminal case was registered by the defendant-respondents against the plaintiff-appellants and some of the attesting witnesses like Gurdev Singh Brar (PW.12). Therefore, these findings of fact cannot be re- opened in exercise of jurisdiction under Section 100 of the Code merely because Ram Singh-defendant-respondent No.1 has failed to appear in the witness-box.

The argument of learned counsel that defendant-respondent No.1 Ram Singh is a material witness and he was required to appear in the

witness-box to support his plea asserting that he never signed the document Ex.PW11/B dated 5-3-1991, Ex.PW11/C dated 3-4-1991 and writing Ex.PW10/A dated 21-4-1993, would not require any detailed consideration because these documents have been set up by the plaintiff- appellants with the object of proving extension in the dates of execution of sale-deeds from time to time and the issue No.2 was accordingly framed for the aforementioned purposes. Both the courts below have gone in detail to discuss the experts' evidence and have concluded that the admitted signature of Ram Singh defendant-respondent No.1 do not tally with the disputed signature on the aforementioned document Ex.PW11/B and Ex.PW 11/C. In such a situation, non-appearance of defendant-respondent No.1 Ram Singh, in the witness-box, would lose significance as the plaintiff-appellants have failed to discharge the initial onus of proving the execution of documents Ex.PW11/A, Ex.PW11/B and Ex.PW10/A.

In the case of Rajappa Hanamantha Ranoji (supra), on which reliance has been placed by learned counsel for the plaintiff-appellants, the interference by the High Court in the findings of fact recorded by the learned Lower Appellate Court was up-held by the Supreme Court on the ground that the findings recorded by the first appellate court were based on no evidence and the High Court had rightly set aside those findings being perverse. The view of the Supreme Court in the aforementioned judgment is evident from a perusal of para No.11, which reads as under :- "11. Having perused the order of the High Court dated 20th

April, 1994 and the record of the case we find no infirmity in the vieew expressed by the High Court. We

are unable to accept the contention of the learned counsel for the appellant the High Court has re- appreciated the evidence as if it was deciding the first appeal. It was contended that the jurisdiction of the High Court was confined to the two questions of law which were framed at the time of admission of the second appeal and it had no jurisdiction to reappreciate the evidence as a First Appellate Court.

Though the High Court has observed that findings arrived at by the First Appellate Court are not based on proper appreciation of the evidence on record and the same are set aside but for all intents and purposes and in substance the conclusion of the High Court is that the decision of the First Appellate Court is based on no evidence and is perverse. We are in complete agreement with the conclusions of the High Court.

The High Court has rightly drawn adverse inference on account of non-examination of respondent No.4 as a witness by the appellant. On the facts and circumstances of the case that was vital and was rather the heart of the entire matter going to the root of the whole case. There was no explanation of respondent No.4. Clearly, the decree of the First Appellate Court is based on no evidence and is perverse."

When the aforementioned principles are examined in the light

of the factual situation available in the present case, it would transpire that there are no findings on record which could be considered without evidence. The findings with regard to non-delivery of possession and forgery of documents Ex.PW11/B, Ex.PW11/C and Ex.PW10/A, have been recorded on the basis of overwhelming cogent evidence. Therefore, I find that no question of law would arise for determination in this case and the appeal does not deserve admission.

In view of the above, this appeal fails and the same is dismissed.

December 9,2005 (M.M. KUMAR)



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