Punjab-Haryana High Court
Kulbir Singh vs Prem Singh Sidhu And Anr on 4 April, 2024
Neutral Citation No:=2024:PHHC:046304
2024:PHHC:046304
RSA-5592-2018 (O&M) - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
105 RSA-5592-2018 (O&M)
Date of decision: 04.04.2024.
Kulbir Singh ...Appellant.
Versus
Prem Singh Sidhu and another ....Respondents.
***
CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR
----
Present: Mr. Malkeet Singh, Advocate
for the appellant.
****
Sukhvinder Kaur, J.
The instant Regular Second Appeal has been filed by appellant/
plaintiff against the concurrent findings recorded by both the Courts below
vide which the suit of the plaintiff was dismissed.
2. Brief facts of the case as per plaint are that previously,
defendant-Prem Singh Sidhu had appointed Hardeep Singh Sidhu as his true
and lawful attorney vide Power of Attorney dated 28.09.2005, which was
later on cancelled by executing another Power of Attorney dated 22.10.2005
in favour of Jarnail Singh. In the instant suit defendant No.1 has been sued
through Jarnail Singh his new Power of Attorney holder. It was averred that
defendant No.1 was exclusive owner in possession of the land as detailed in
the head note of the plaint. On 08.10.2005, defendant No.1 through his
1 of 8
Neutral Citation No:=2024:PHHC:046304
2024:PHHC:046304
RSA-5592-2018 (O&M) - 2-
attorney Hardeep Singh, in the presence of the attesting witnesses, agreed to
sell the land in dispute for total sale consideration of Rs.32,04,375/- vide
agreement to sell dated 08.10.2005. Defendant No.1, through his attorney,
received a sum of Rs.20,00,000/- as earnest money at the time of execution
of the agreement to sell in question. The sale deed was to be executed on or
before 25.06.2008 as per the terms and conditions incorporated in the
agreement to sell. On 25.06.2008, plaintiff remained present in the office of
Sub Registrar, Phillaur, with sufficient amount for the purpose of getting the
sale deed executed as per the terms and conditions of the agreement, but
defendant did not turn up to perform his part of the agreement. Plaintiff also
got his presence marked in the office of Sub Registrar, Phillaur, by way of
affidavit dated 25.06.2008. Plaintiff was and is still ready to perform his
part of the agreement to sell. The plaintiff requested the defendants many
times to admit his claim, but they refused to do so compelling the plaintiff to
knock the door of the Court. Hence, this suit.
3. The suit of appellant/plaintiff was dismissed by the trial Court,
vide judgment and decree dated 05.02.2014. The appeal preferred by the
appellant/ plaintiff before the First Appellate Court was dismissed, vide
judgment and decree dated 10.08.2017. Hence, the present Regular Second
Appeal has been filed by the appellant/ plaintiff, before this Court.
4. Learned counsel for the appellant/ plaintiff has contended that
both the Courts below have disbelieved the agreement to sell dated
08.10.2005 on flimsy, whimsical and fanciful interferences drawn beyond
the evidence on the record. General Power of Attorney dated 28.09.2005
2 of 8
Neutral Citation No:=2024:PHHC:046304
2024:PHHC:046304
RSA-5592-2018 (O&M) - 3-
was executed by respondent No.1 in favour of respondent No.2. Respondent
No.2 executed agreement to sell dated 08.10.2005, as per the authorization
conferred on him through the aforesaid General Power of Attorney and sum
of Rs.20,00,000/- was received on account of earnest money and the balance
amount of consideration was agreed to be received on the day of execution
and registration of the sale deed in favour of the appellant, for which the
target date was fixed as 25.06.2008 by mutual understanding of the parties.
But intention of respondent No.1 became dishonest after receipt of huge
amount of Rs.20,00,000/- by way of earnest money which was paid by his
attorney respondent No.2. He has contended that respondent No.2 has
categorically deposed regarding the same and credibility of his testimony
could not be shattered despite his lengthy cross-examination. Thereafter,
respondent No.1 executed special Power of Attorney in favour of Jarnail
Singh, who is his real brother-in-law on 22.10.2005, authorizing him to get
the General Power of Attorney dated 28.09.2005, in favour of respondent
No.2 cancelled. He has argued that admittedly the notice with respect to
cancellation of the General Power of Attorney was served vide Ex.D6 dated
07.11.2005, approximately one month after the execution of the agreement
to sell. But both the Courts below have fallen in error while holding that the
agreement to sell was antedated after the receipt of the notice with respect to
cancellation of the General Power of Attorney and as such, respondent No.1
was not bound by the agreement to sell executed by respondent No.2. He
has submitted that the both the Courts below have wrongly gave much
weightage to the fact that the original Power of Attorney dated 28.09.2005
3 of 8
Neutral Citation No:=2024:PHHC:046304
2024:PHHC:046304
RSA-5592-2018 (O&M) - 4-
had not been produced in the Court and was intentionally withheld by the
plaintiff. He has submitted that DW3 Jarnail Singh, who is General Power
of Attorney holder of respondent No.1 has admitted during his cross-
examination that the original General Power of Attorney was returned by
Hardeep Singh previous Attorney, to Prem singh respondent, in the
connected suit filed for possession and mesne profits on account of use and
occupation of the land by Hardeep Singh, where Jarnail Singh had appeared
as PW3. So, it is abundantly proved that the original Power of Attorney was
in possession of respondent No.1 or his attorney Jarnail Singh and the same
was intentionally withheld. Thus, the wrong findings have been given with
regard to the secondary evidence. He has also submitted that it has been
wrongly held that the agreement to sell dated 08.10.2005 was antedated and
was prepared with the connivance of witnesses Ranjodh Singh and Pardeep
Singh alongwith Hardeep Singh, as both of them are closely related to
Hardeep Singh. He has contended that the execution of agreement to sell
dated 08.10.2005 and readiness and willingness on the part of appellant/
plaintiff has been duly established on the record. But the evidence on record
has not been appreciated by both the Courts below in the right perspective
and undue weightage has been given to the unbelievable and unsustainable
evidence produced by the respondents/ defendants.
5. I have heard learned counsel for the appellants and have gone
through the record thoroughly.
6. This fact is not disputed that the alleged agreement to sell dated
08.10.2005 had been executed on the basis of Power of Attorney dated
28.09.2005 executed by respondent No.1 Prem Singh in favour of Hardeep
4 of 8
Neutral Citation No:=2024:PHHC:046304
2024:PHHC:046304
RSA-5592-2018 (O&M) - 5-
Singh. The original Power of Attorney has not been produced on record. No
material has been produced on record to substantiate the plea as alleged by
the plaintiff that the original Power of Attorney was in possession of
subsequent Power of Attorney holder Jarnail Singh. Moreover, this plea had
neither been taken either in the written statement nor in examination-in-
chief of Hardeep Singh. So, the original Power of Attorney dated
28.09.2005 which was the basis for executing the agreement to sell dated
08.10.2005 has not been proved on record. It has been rightly observed that
the permission to prove this Power of Attorney through secondary evidence
was granted subject to proof of its execution and loss, which has not been
proved on record. It has been held by the Hon'ble Apex Court in J. Yashoda
Vs. Smt. Shobha Rani, 2007(3), Civil Court Cases 195 that "to enable a
party to produce secondary evidence it is necessary for the party to prove
existence and execution of the original document. Secondary evidence may
be given when the original is shown or appear to be in possession of power
of the person against whom the document is sought to be proved."
7. In the instant case, It has not been proved that the photocopy of
Power of Attorney produced on record was the actual copy of the original
and same has been lost or in possession of person against whom this
document is sought to be produced. Another infirmity has also been pointed
out in the case of the appellant/ plaintiff, that Power of Attorney was not got
embossed from the Office of Commissioner, Jalandhar before executing the
agreement to sell.
8. The perusal of Ex.P2, the agreement to sell, reveals that it has
5 of 8
Neutral Citation No:=2024:PHHC:046304
2024:PHHC:046304
RSA-5592-2018 (O&M) - 6-
not been mentioned therein, that by relying upon, which specific jamabandi
the khasra numbers therein had been written. While appearing as DW2,
Hardeep Singh has stated that from fard jamabandies Ex,P9 to Ex.P11 the
agreement to sell Ex.P2 was written at his instance. But perusal of these
jamabandies Ex.P9 to Ex.P11 reveals that the same had been issued on
20.06.2008 and 23.06.2008 respectively i.e. much after the date of alleged
execution of the agreement to sell dated 08.10.2005. It strengthens the
version of respondent/ defendant Prem Singh that this alleged agreement
was got prepared by Hardeep Singh in connivance with appellant/ plaintiff
and alleged witnesses, when respondent/ defendant Prem Singh got issued
the notice, through his attorney Jarnail Singh, to his previous attorney
Hardeep Singh, for vacating the suit property after cancellation of his Power
of Attorney. While appearing as DW2-Hardeep Singh has also admitted that
an application was filed on 05.06.2008 by Jarnail Singh before the NRI
Sabha to get back the possession from Hardeep Singh and that this
application was referred by NRI Sabha to Deputy Commissioner, Jalandhar.
He has admitted the factum of registration of FIR No.141 Ex.D1 against
Kulbir Singh, Ranjodh Singh and stamp vendor Harbinder Singh and that
they had filed a petition for quashing the said FIR before this Court and vide
order dated Ex.D2 of this Court, the said petition filed by them was
dismissed as withdrawn. It has been rightly held that this registration of FIR
for forging and fabricating one agreement to sell against previous attorney
Hardeep Singh, attesting witness Ranjodh Singh, purchaser Kulbir Singh
and stamp vendor Harbinder Singh lends corroboration to the version of
6 of 8
Neutral Citation No:=2024:PHHC:046304
2024:PHHC:046304
RSA-5592-2018 (O&M) - 7-
respondent/ defendant Prem Singh with regard to forgery committed by the
appellant/ plaintiff.
9. The agreement to sell in question had not been got typed from
the licensed deed writer. Even the name of the typist has not been written on
regular stamp paper and adhesive stamps were affixed on a plain paper,
which also creates doubt regarding genuineness of this agreement.
10. As per the appellant/ plaintiff, respondent/ defendant Prem
Singh through his attorney Hardeep Singh, agreed to sell the land in dispute
for total consideration of Rs.32,04,375/- vide agreement to sell dated
08.10.2005 and earnest money of Rs.20,00,000/- was paid by him to
Hardeep Singh i.e. attorney of defendant Prem Singh. Admittedly, attorney
in favour of Hardeep Singh was got cancelled by respondent Prem Singh
vide registered notice dated 07.11.2005. Said Hardeep Singh while
appearing as DW2 had deposed in examination-in-chief that earnest money
amount of Rs.20,00,000/- received by him was duly paid by him to Prem
Singh, but admittedly the aforesaid amount had not been deposited by him
in the account of Prem Singh. Rather, during his cross-examination he tried
to set up a new version while stating that he had made payment of
Rs.20,00,000/- to Jarnail Singh after execution of agreement to sell. But
again there is no material on record to substantiate the above said plea
regarding handing over of Rs.20,00,000/- by Hardeep Singh to Jarnail
Singh. No prudent person would hand over such a huge amount of
Rs.20,00,000/- without taking any receipt. The Courts below have rightly
held that as such there is no evidence with regard to the passing of sale
7 of 8
Neutral Citation No:=2024:PHHC:046304
2024:PHHC:046304
RSA-5592-2018 (O&M) - 8-
consideration of Rs.20,00,000/- to respondent/ defendant Prem Singh.
11. The agreement in question was executed on 08.10.2005,
whereas the date of execution of sale deed was fixed as 25.06.2008, and this
period of around three years further raises suspicion with regard to
genuineness of this agreement. It has not been explained why such a long
time was fixed for the execution and registration of the sale deed and why
possession of the suit land was not delivered to the plaintiff.
12. For the reasons recorded above, the present Regular Second
Appeal fails and is dismissed as it does not raise any question of law much
less substantial question of law.
13. All pending applications, if any, also stand disposed of
accordingly.
(SUKHVINDER KAUR)
JUDGE
04.04.2024.
komal
Whether speaking/ reasoned : Yes/ No
Whether Reportable : Yes/ No
8 of 8
