JUDGEMENT
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(1.)The appellant-defendant is aggrieved of the judgments and decrees rendered by the Courts below whereby the suit seeking for specific performance of the agreement to sell dated 28.07.2005 in respect of the land measuring 22 kanals, agreed to be sold, for consideration of Rs. 11,27,500/- against the payment of Rs. 3 lacs as earnest money, has been decreed. Mr. J.S. Brar, learned counsel appearing on behalf of the appellant-defendant submits that though the respondent-plaintiff sought the specific performance of the aforementioned agreement on the ground that the target date was 29.12.2005, the fact remains that it was a forged and fabricated document. The plaintiff examined many witnesses to prove execution of the document but few of the witnesses in cross-examination spilled the beans and feigned ignorance about acceptance of the execution of agreement to sell. PW1, Mohinder Singh, stepped into the witness box and proved on record the agreement to sell Ex.P1 and the photograph pasted as Ex.P1/A, affidavit as Ex.P2 and original application as Ex.P3. PW2, Jagdev Singh, stated that on receipt of Rs. 3 lacs as earnest money, the defendant executed an agreement to sell in favour of the plaintiff. PW-3, Sant Singh, Nambardar was also examined, who attempted to make statement in consonance with averments in the plaint but the fact remains that the aforementioned agreement was surrounded with mysterious and suspicious circumstances, as the agreement written on a stamp paper and typed by a petition writer, would not mean that the document cannot be forged. PW-3, Sant Singh, Nambardar had been present at that time but he is not figuring in the photograph affixed on the agreement to sell. In examination-in-chief, he deposed that he put thumb impression but appraisal of the agreement revealed that it was signed by him. He even did not know who purchased the stamp papers and from whom it was purchased and also feigned ignorance about the advocate before whom he was produced. The photograph pasted on the agreement to sell need not be read in evidence as no negative had been proved on record. Even the plaintiff's witness could not state what was the denomination of the currency notes, alleged to have been given as earnest money. It has surfaced in the crossexamination of PW-2 and PW-3 that the earnest money was not paid by the respondent-plaintiff to the appellant-defendant. There is stark contradiction in the statements of witnesses, as one of the witnesses, stated that the money was paid at the residence and another witness stated that the money was paid at some other place.
(2.)He further submits that the Courts below did not consider the entry in the deed writer's register which is sought to be placed on record by way of additional evidence. Previous to Sr. No.661, the entries made at Sr. Nos.659 and 660 were dated 20.10.2005 and the entry at Sr. No.661 was made subsequent thereto, as narrated by the deed writer, whereas the agreement to sell was stated to be dated 28.07.2005. He further submits that the trial Court did not consider the fact that appellant-defendant, being an illiterate and rustic person of 70 years of age, could not prove the documents Annexures A-1 to A-3 in evidence "despite due diligence" and failed to consider the above-mentioned documents which were relevant and material for proper adjudication of the case. In support of this contention, he relies on judgment of the Supreme Court in State of Orissa and another Vs. Fakir Charan Sethi (dead through LRs) and others, 2015 1 SCC 466 . All these material contradictions have erroneously and perversely been ignored and the judgments and decrees passed by both the Courts below are not sustainable in the eyes of law and thus, urges this Court for setting aside the judgments and decrees passed by the Courts below by formulating the substantial questions of law as culled out in the memorandum of appeal.
(3.)On the contrary, Mr. Parveen Kumar Garg, learned counsel appearing on behalf of the respondent-plaintiff submits that the appellantdefendant has failed to prove on record as to how his signatures were appearing in the agreement to sell. No expert has been examined to prove the alleged forgery and fabrication, whereas the attesting witnesses were consistent and coherent with regard to the execution of the agreement between the parties to the lis. The appellant-defendant has also failed to prove identity of Sant Singh rather as per photograph he was present. On the contrary, the plaintiff has approached the office of Sub Registrar on the date fixed for execution and registration of agreement to sell on 25.12.2005 and the suit has been filed on 03.01.2006 with promptitude. He further submits that from the statement of PW-4 Kulwant Rai, stamp vendor, it is evident that Mangta Singh purchased stamp papers in the sum of Rs. 300/-, which was entered in the register at Sr. No.2484 of even date. The relevant entry has been proved as Ex.P4. PW-6, Babu Singh has been examined, who stated that he purchased 19 kanals 19 ½ marlas of land from the plaintiff for a consideration of Rs. 4,50,000/- which was paid by him on the same day and the copy of the sale deed has been proved as Ex.P4. and thus, urges this Court for dismissal of the aforementioned appeal by upholding the judgments and decrees passed by both the Courts below. I have heard learned counsel for the parties, appraised the paper book and of the view that there is no substance and force in the submissions of Mr. Brar, learned counsel appearing for the appellant. PW-5, Harjit Singh, deed writer stated that on 28.07.2005, Mangta Singh got typed the agreement to sell from him which was read over and explained to him and thereafter, he appended his thumb impression and witnesses also attested the same by putting signatures/thumb impressions and in his presence a sum of Rs. 3 lacs was paid by the plaintiff to the defendant. In this regard, a detailed cross-examination has been done but the appellant-defendant has failed to assert any truth or contrary to what has been stated in examinationin-chief.