Punjab-Haryana High Court
Vinod Kumar vs Tarlok Singh on 14 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:037202
RSA-2652-1994(O&M) 2024:PHHC:037202
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108 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-2652-1994(O&M)
Date of decision :14.03.2024
Vinod Kumar ...Appellant
Vs.
Tarlok Singh (deceased) through LRs ...Respondent
CORAM:- HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Manish Jain, Advocate and
Mr. Divanshu Jain, Advocate for
Mr. Prateek Sodhi, Advocate
for the appellant.
Mr.V.K. Jindal, Sr. Advocate with
Mr. Vijayveer Singh, Advocate and
Mr. Pankaj Gautam, Advocate
for the respondent.
***
ANIL KSHETARPAL, J.(Oral)
1. This is plaintiff's second appeal against the judgment and decree
passed by the First Appellate Court, wherein the judgment and decree passed
by the trial Court was reversed.
2. In order to comprehend the issues involved in the present case,
some relevant facts, in brief, are required to be noticed.
3. The plaintiff (Sh. Vinod Kumar) claims that Sh. Tarlok Singh
(now deceased) executed the agreement to sell in his favour on 07.08.1986
with respect to a plot measuring 54' x 40' on receipt of Rs. 10,000/- as earnest
money against total consideration of Rs.36,000/-. It was agreed that the sale
deed would be executed on 07.10.1986. The plaintiff, at the first stage, filed a
suit for grant of injunction and subsequently, filed the suit for the specific
performance of the agreement to sell on 06.03.1987. The defendant, while
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contesting the suit, claimed that no agreement to sell was executed. In fact, his
thumb impression/signatures were obtained on mis-representation as he was
under the medical treatment of the plaintiff. It was also asserted that the plot is
worth Rs.1,00,000/- and therefore, there was no reason to sell it for a sum of
Rs.36,000/-.
4. The trial Court decreed the suit, however, the First Appellate
Court upon re-appreciation of the evidence, reversed the judgment and decree
passed by the trial Court. The First Appellate Court has broadly recorded the
following reasons, while reversing the judgment of trial Court:-
i. The professional scribe did not enter the agreement to sell in
his note-book, which is regularly maintained by a
professional scribe and he has failed to render any
justification for failing to make entry in his note-book.
ii. There are multiple interpolation/cutting in the agreement to
sell, which are not signed or thumb marked by the
defendant.
iii. In the agreement to sell, it is recorded that the entire earnest
money has been paid with currency notes of denomination
of Rs. 100/-, whereas the defendant has deposited
Rs. 9,900/- with different denomination.
iv. The defendant is an illiterate person and the plaintiff was
more than eager to prove his case.
5. On appreciation of evidence, the First Appellate Court has come to
a conclusion that the real person behind the execution of agreement to sell is
someone else and not the plaintiff.
6. Heard the learned counsel representing the parties at length and
with their able assistance perused the paper-book, alongwith the requisitioned
record.
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7. Learned counsel representing the appellant, while drawing the
attention of the Court to the agreement to sell submits that an
interpolation/cutting are insignificant because that is only with reference the
property of a neighbour and the First Appellate Court has made out a new case
for the defendant. He further submits that the plaintiff has proved the
agreement to sell and both the marginal witnesses have also proved the
agreement to sell.
8. On the other hand, the learned Senior counsel representing the
respondent, apart from defending the case, has drawn the attention of the Court
to the paper-book. He submits that this appeal has been filed by Sh. Vinod
Kumar (plaintiff) through Sh. Raj Kumar (on the basis of Power of Attorney)
son of Sh. Ghansyam Dass, who was the attesting witness of the agreement to
sell. He submits that Sh. Ghansyam Dass is the next door neighbour of the
defendant and he has been instrumental in getting the documents manipulated.
He further submits that the First Appellate Court has exercised discretion,
which should not be interfered by this Court.
9. This Court has considered the submissions made by the learned
counsel representing the parties and gone through the record.
10. PW1-Fakir Chand is a professional scribe, who practices in Tehsil
Bilaspur. He was cross-examined at length with regard to absence of entry in
his note-book. He failed to give any justifiable explanation. He admits that on
that day, he scribed 4-5 documents, which were duly entered in his register,
however, he failed to justify as to why the entry was not made in his note-book.
It is evident that the agreement to sell is scribed on two non-judicial stamp
papers of Rs.2.25 paise. This stamp paper has been purchased by one Naresh
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Kumar. The defendant- Sh.Tarlok Singh has not thumb marked the stamp
paper in token of its purchase. There is only one signature and thumb
impression of Sh. Tarlok Singh at the bottom of first page. Sh. Tarlok Singh
has signed in Gurmukhi language whereas, the agreement to sell is scribed in
Devanagari script. Thus, it is evident that Sh. Tarlok Singh was not much
educated. Furthermore, it has come in evidence that Sh. Tarlok Singh was
allegedly paid Rs. 10,000/-, which was consisting Rs.100/- currency notes,
whereas, he deposited Rs. 9,900/- with 89 currency notes of Rs. 100/-
denomination and 18 currency notes of Rs.50/- denomination and 5 currency
notes of Rs.20/- denomination.
11. Keeping in view the aforesaid facts, this Court is of the opinion
that at this stage, it would not be appropriate to grant relief of specific
performance, particularly when the agreement to sell was entered into 38 years
ago.
12. Keeping in view the aforesaid facts, the decree passed by the First
Appellate Court is substituted by a decree for the grant of alternative relief to
the plaintiff. There shall be decree for recovery of earnest money of
Rs.10,000/- alongwith interest @ 9% per annum from the date of the
agreement to sell till its repayment in favour of the plaintiff and against the
defendant.
13. The appeal is disposed of.
14. All the pending miscellaneous applications, if any, are also disposed
of.
(ANIL KSHETARPAL)
14.03.2024 JUDGE
neeraj Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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