Malkiat Singh vs Kulwinder Singh

RSA-272-2016 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
125 RSA-272-2016 (O&M)
Date of decision: 28.10.2026
Malkiat Singh (since deceased) through his LRs
....Appellant
Vs.
Kulwinder Singh
....Respondent
CORAM : HON’BLE MR. JUSTICE HARSH BUNGER
Present: Mr. Aalok Jagga, Advocate and
Mr. Karan Inder Singh, Advocate
for the appellant.
Mr. Gaurav Chopra, Senior Advocate assisted by
Ms. Darika Sikka, Advocate
for the respondent.
*
HARSH BUNGER J.
CM-889-C-2016 in/and RSA-272-2016 (O&M):
1. For convenience, the parties herein are being addressed as per
their status in the original suit.
2. This is the defendant’s second appeal challenging the judgment
and decree dated 17.09.2014 passed by the learned Additional Civil Judge
(Senior Division), Rupnagar, as well as the judgment and decree dated
27.11.2015 passed by the learned District Judge, Rupnagar.
3. Briefly, plaintiff (Kulwinder Singh) filed a suit for possession
by way of specific performance of an agreement to sell dated 22.12.2004, on
the plea that defendant (Malkiat Singh) vide the aforesaid agreement to sell,
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RSA-272-2016 (O&M) -2-
agreed to execute the sale deed of 47 Kanals - 16 Marlas on or before
03.08.2005 and in respect of the remaining land measuring 16 Kanals, the
sale deed was to be executed on or before 01.12.2005. It was averred that
defendant (Malkiat Singh) received a sum of Rs.4,00,000/- as earnest money
and the total sale consideration for 47 Kanals - 16 Marlas area was
calculated as Rs.34,47,571/-. The said agreement is stated to be signed by
the parties to the suit in the presence of the witnesses.
3.1 It was also pleaded by the plaintiff that defendant (Malikat
Singh) had agreed to clear the loan obtained by him from various banks and
to get the Jamabandi with fresh entries after cancellation of the entries made
in the revenue record in favour of banks. It is the case of the plaintiff that
defendant Malkiat Singh failed to repay the loan obtained by him.
3.2 On 25.07.2005, the defendant is stated to have approached the
plaintiff along with one Kuldeep Singh son of Gurbax Singh, with whom
another agreement to sell had been executed and they both asked the plaintiff
to pay Rs.7,50,000/- (each) for depositing in the banks for getting their land
redeemed, whereupon the plaintiff asked them to collect the money on
28.07.2005. Plaintiff averred that he withdrew the said amount but the
defendant and Kuldeep Singh did not come to receive the same on the date
given by the plaintiff.
3.3 It is also stated that on 03.08.2005, the plaintiff went to the
office of Sub-Registrar, Chamkaur Sahib along with his wife and nephew
with cash and three drafts amounting to Rs.25,00,000/- out of which two
drafts were of Rs.9,00,000/- (each) and one draft was of Rs.7,00,000/-,
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RSA-272-2016 (O&M) -3-
bearing Nos. 446030, 446631, and 446635 respectively. It was specifically
pleaded by the plaintiff that the remaining balance sale consideration of
Rs.5,47,571/- was ready with him in cash. However, the defendant failed to
turn up before the Sub-Registrar till the lunch time. The plaintiff further
claimed that at 02:30 PM, he met the Sub-Registrar and requested that the
other party was not present, whereupon he was asked to show the
consideration amount, which is stated to have been shown. The plaintiff
further claims that at 03:30 PM, he again met the Sub-Registrar but he was
asked that his presence is not going to be marked and the Sub-Registrar left
his office.
3.4 The plaintiff alleged that the son of the defendant disclosed to
the plaintiff that the matter has been settled with the Sub-Registrar and the
presence of the plaintiff is not going to be marked. Upon this, the plaintiff
along with his nephew is stated to have gone to Ropar to inform SDM (Sub-
Divisional Magistrate), where he filed an application regarding the illegality
done by the Sub-Registrar and the said matter was also reported in the
newspaper “Punjabi Tribune” dated 04.08.2005.
3.5 The plaintiff further alleged that the defendant was not ready to
execute the sale deed because the rate of the land had increased. The plaintiff
pleaded that he was ready to get the sale deed executed on or before
03.08.2005 and was ready thereafter as well and during the pendency of the
suit. Accordingly, with the aforesaid plea(s), the suit was filed.
4. Upon issuance of notice in the suit, defendant (Malkiat Singh)
appeared and filed his written statement taking various preliminary
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RSA-272-2016 (O&M) -4-
objections regarding non-joinder and mis-joinder of necessary parties, the
plaintiff not having come to the court with clean hands and also that the
plaintiff had forged the signatures of the defendant on a false agreement. On
merits, the defendant stated that the plaintiff had concocted a false story to
mislead the court. He denied that he entered into any agreement to sell his
land at the rate of Rs.5,77,000/- per acre by claiming that the price of the
land was more than Rs.15,00,000/- per acre. The defendant further denied
that he ever agreed to sell the suit property in presence of the witnesses.
4.1 The defendant claimed that there was some relationship
between the plaintiff and his nephew, therefore, the plaintiff had wrongly
made him as a party to the suit. The defendant further denied the receipt of
earnest money. He also stated that there was a bank loan on the agricultural
land belonging to him, therefore, there was no question of executing the
agreement, accordingly, the Sub-Registrar has rightly not attested the
presence of the plaintiff on the date of sale. The other averments of the plaint
were denied, and prayer for dismissal of the suit was made.
5. The plaintiff filed his replication to the written statement filed
by the defendant, wherein he controverted the stand of the defendant and
reiterated his averments made in the plaint.
6. From the pleading of the parties, following issues were framed
by the learned Trial Court:-
“1. Whether, defendant entered into an agreement to sell with
the plaintiff on 22.12.2004? OPP
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RSA-272-2016 (O&M) -5-
2. Whether, plaintiff is entitled to the decree of possession by
way of specific performance of agreement to sell dated
22.12.2004? OPP
3. Whether, plaintiff is entitled to the recovery of Rs.8 Lac, as
prayed for? OPP
4. Whether, plaintiff was ready and willing to perform his part
of the agreement and is still ready to do so? OPP
5. Whether, suit is not maintainable? OPD
6. Whether, plaintiff has no locus standi to file the present
suit? OPD
7. Whether, plaintiff has no cause of action to file the present
suit? OPD
8. Relief.”
7. Thereafter, the parties led their respective evidence on the
aforesaid issues.
8. The learned Trial Court, upon appraisal of the matter, decreed
the suit of the plaintiff vide judgment and decree dated 17.09.2014.
9. Feeling aggrieved, Malkiat Singh preferred an appeal before the
learned District Judge, Rupnagar, which was dismissed vide judgment and
decree dated 27.11.2015.
10. In the aforementioned circumstances, the present regular second
appeal has been filed before this Court.
11. I have heard learned counsel appearing for the appellant as well
as the learned Senior Counsel appearing for the respondent and perused the
paperbook with their able assistance.
12. In the present case, plaintiff-Kulwinder Singh filed a suit for
specific performance of the agreement to sell dated 22.12.2004, whereunder
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RSA-272-2016 (O&M) -6-
the original defendant-Malkiat Singh (since deceased) agreed to sell two
parcels of land i.e. 47 Kanals - 16 Marlas and 16 Kanals. The sale deed in
respect of 47 Kanals - 16 Marlas area was to be executed on or before
03.08.2005, whereas the remaining land measuring 16 Kanals was to be sold
through a sale deed to be executed on or before 01.12.2005. According to the
plaintiff, defendant (Malkiat Singh) had received Rs.4,00,000/- as earnest
money, however, he failed to appear before the office of Sub-Registrar,
Chamkaur Sahib on the stipulated date i.e. 03.08.2005 for execution of the
sale deed in respect of 47 Kanals - 16 Marlas area. Although the plaintiff
remained present before the Sub-Registrar, Chamkaur Sahib along with three
drafts amounting to Rs.25,00,000/- and Rs.5,47,571/- in cash, however,
Malkiat Singh did not come present for getting the sale deed executed and
immediately on 12.08.2005 the plaintiff (Kulwinder Singh) filed the suit for
specific performance. On the other hand, Malkiat Singh appeared in the suit
and denied executing the agreement to sell or having received the earnest
money.
13. The learned Trial Court, after considering the facts, pleadings as
well as the evidence available on record, concluded that the plaintiff through
his own statement as PW-1 as well as the statement of the witnesses PW-2
and PW-3, has proved the agreement dated 22.12.2004 to be executed by the
defendant in favour of the plaintiff. The learned Trial Court observed that
according to the agreement, two sale deeds were to be executed by the
defendant i.e. firstly on 03.08.2005 in respect of 47 Kanals - 16 Marlas area,
and the other sale deed was to be executed on or before 01.12.2005 in
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RSA-272-2016 (O&M) -7-
respect of 16 Kanals area. It was further held that the agreement is duly
signed by the defendant on all the pages and even the ownership of the
defendant over the suit property was not disputed.
13.1 The learned Trial Court observed that the plaintiff as well as the
other witnesses have been duly cross-examined at length by the counsel for
the defendant; however, they failed to point out any material discrepancies
among the statements that may falsify the agreement (Exhibit P-1).
13.2 The learned Trial Court has also held that the plea of the
defendant that the agreement in question is a forged and fabricated document
has not been proved on record. Rather, when the defendant Malkiat Singh
himself stepped into the witness box as DW-1, he admitted that the first page
of the agreement (Exhibit P-1) bears his signatures and similarly, page Nos.2
and 3 also bore his signatures. Accordingly, the learned Trial Court held that
the plea of the defendant (Malkiat Singh) that his signatures have been
forged by the plaintiff stands falsified.
13.3 That apart, the learned Trial Court went on to observe that the
defendant failed to bring on record evidence or surrounding circumstances
from which any inference could be drawn that the agreement is forged and
fabricated, as claimed by the defendant.
13.4 The learned Trial Court also took note of the fact that the
defendant has taken two contradictory pleas, inasmuch as on one hand he
claims that the agreement was forged and fabricated, whereas on the other
hand, he claims that the agreement has been executed in security to the
agreement executed by Kuldeep Singh. The learned Trial Court observed
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RSA-272-2016 (O&M) -8-
that such plea was not taken by the defendant in his written statement nor
could he explain the necessity for execution of the agreement as security to
another agreement executed with his nephew-Kuldeep Singh. The learned
Trial Court held that if the agreement was executed in security then it cannot
be termed as forged and if it was forged then it cannot be shown as a security
document. Furthermore, the defendant failed to examine any handwriting
expert to establish if the agreement bears forged signatures of the defendant.
13.5 In view of the aforesaid observations, the learned Trial Court
concluded that the agreement to sell (Exhibit P-1) had been duly executed by
the defendant (Malkiat Singh) in favour of the plaintiff (Kulwinder Singh).
14. As regards the readiness and willingness of the plaintiff, the
learned Trial Court took note of the statement made by PW4 - Inderjit Singh,
Assistant Manager, Punjab & Sind Bank, who proved on record the account
statement of the plaintiff as Exhibit PA, which depicted withdrawal of
Rs.30,00,000/- on 03.08.2005. He further proved the demand drafts (Exhibit
PB, Exhibit PC, and Exhibit PD), which were got prepared by the plaintiff in
the name of the defendant amounting to Rs.25,00,000/-. Exhibit PE and
Exhibit PF are the copies of cheques on the basis of which the sum of
Rs.30,00,000/- had been withdrawn.
14.1 Furthermore, the claim of the plaintiff that on the stipulated date
i.e. 03.08.2005, he was present in the office of Sub-Registrar, Chamkaur
Sahib had been proved on record coupled with the fact that the plaintiff
instituted the suit immediately on 12.08.2005. The learned Trial Court held
that in view of the aforementioned circumstances, the readiness and
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RSA-272-2016 (O&M) -9-
willingness of the plaintiff was duly proved on record and the suit of the
plaintiff was decreed.
15. The findings returned by the learned Trial Court have been
further affirmed by the learned First Appellate Court by holding as under:
“12. I have considered the arguments advanced before me and
I have also gone through the evidence led by both the parties
carefully. Kulwinder Singh filed suit for possession by way of
specific performance of agreement to sell dated 22.12.2004
regarding sale of 47 kanals 16 marlas of land along with
tubewell at the rate of Rs.5,77,000/-per acre, regarding land of
three villages jointly owned by appellant/defendant as detailed
in head note of the plaint. It is further claimed that at the time of
execution of agreement to sell dated 22.12.2004 Ex.P-1, Rs.4
Lacs were paid às earnest money in the presence of marginal
witnesses namely Prem Singh numberdar of village Sarangpur
and Haqiqat Singh son of Hazara Singh. The original
agreement to sell is Ex.P-1. It is the plaintiff, who has come to
the Court seeking relief on the basis of above said agreement to
sell. Therefore, the onus was heavily upon the plaintiff to prove
its execution. Plaintiff Kulwinder Singh stepped into the witness
box as PW-1 and his version is supported by both the marginal
witnesses namely Prem Singh PW-2 and Haqiqat Singh PW-3.
The counsel for appellant/defendant has failed to point out any
discrepancy in the statements of these witnesses to shatter their
credibility. The statement of these witnesses are consistent and
trustworthy regarding the execution of agreement to sell dated
22.12.2004 Ex.P-1. As per this agreement to sell, the sale deed
regarding 47 kanals 16 marlas of land was to be executed on or
before 3.8.2005 and the sale deed regarding 16 kanals 0 marla
was to be executed on or before 1.12.2005. The plaintiff has
filed the present suit only regarding 47 kanals 16 marlas of land
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RSA-272-2016 (O&M) -10-
along with tubewell. The appellant/defendant has taken a
specific stand that this agreement to sell dated 22.12.2004 is
forged and fabricated document. In order to prove this defence,
the appellant/defendant has stepped into the witness box as
DW-1. Malkiat Singh appellant has not denied his signatures on
this agreement to sell. Even the stamp paper was purchased by
him on the same day and the reverse of first page of agreement
to sell further bears the signatures of appellant/defendant.
Therefore, the appellant/defendant has failed to lead any
convincing evidence on record to establish his plea taken in the
written statement. So far as the ownership of
appellant/defendant is concerned, that is duly established from
the revenue record produced on the file by counsel for plaintiff.
It is further not disputed that in the revenue record, there were
entries in favour of the Bank for the loan raised by
appellant/defendant on the land in question. The property in
question is joint with other co-sharers. Even as per the terms of
agreement to sell dated 22.12.2004 Ex.P-1, Malkiat Singh has
agreed to sell his share in the property in dispute and
accordingly plaintiff will step into the shoes of vendor.
Therefore, from the evidence led by respondent/plaintiff, the
execution of agreement to sell dated 22.12.2004 Ex.P-1 is duly
proved on record.
13. The other material fact in this case is readiness and
willingness on the part of both the parties to perform their
respective part of agreement to sell. As per the version of
Kulwinder Singh PW-1, he and his wife had withdrawn money
from their Bank account and for that purpose, they had
approached the Bank and prepared the Bank drafts in the name
of Malkiat Singh. They were also carrying cash amount to bear
the expenditure of execution of sale deed. To establish this fact,
the respondent/plaintiff has examined Inderjit Singh, Manager,
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RSA-272-2016 (O&M) -11-
Punjab & Sind Bank, Mundi Kharar as PW-4, who has proved
on record the statement of account of Kulwinder Singh Ex.PA
and attested copies of Bank drafts, which are Ex.PB to Ex.PF.
As per the version of respondent/plaintiff, on 3.8.2005, he went
to the office of Sub Registrar, Chamkaur Sahib and remained
present there for whole of the day. He had also appeared before
the Sub Registrar to show that he was ready to get the sale deed
executed in his favour, but the opposite party had not come.
Despite all this, Sub Registrar refused to mark his presence on
3.8.2005 at the instance of opposite party and left the office. On
this, the respondent/plaintiff approached the SDM, Ropar and
moved application Ex.PG. The application was drafted by
Harmandeep Singh Advocate, who has been examined PW-6,
which was signed by Mandeep Singh, nephew of
respondent/plaintiff. The receipt of application in the office of
SDM, Ropar is proved by examining Beant Singh, receipt clerk
as PW-5, who categorically stated that the application dated
3.8.2005 Ex.PG was. received on 3.8.2005 and it was marked
for the next day i.e. 4.8.2005. Therefore, from the evidence led
by respondent/plaintiff, it is further established that the plaintiff
was ready with the balance sale consideration and he also went
to the office of Sub Registrar Chamkaur Sahib to inform that he
was ready to perform his part of agreement to sell dated
22.12.2004 Ex.P-1. He made all possible efforts to get his
presence marked. When the appellant/defendant failed to
perform his part of agreement to sell, the plaintiff filed the
present suit on 11.8.2005 well within the period of limitation.
The appellant/defendant has failed to establish the defence
taken by him that agreement to sell is forged and fabricated
document. The plaintiff has proved his case by leading
convincing evidence on record. The facts of the case and the
documents on record are rightly appreciated by learned lower
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Court and the suit filed by appellant/plaintiff was rightly
decreed.
With this observation, the impugned judgment and decree
dated 17.9.2014 passed by learned lower Court is accordingly
upheld and the appeal preferred by appellant/defendant is
accordingly dismissed with costs…...”
16. Before this Court, learned counsel appearing for the appellant
has failed to show as to how the findings returned by the learned Courts
below are either illegal or perverse, or based upon any misreading or
misappreciation of the material evidence.
17. At this stage, learned counsel appearing for the appellant has
pressed his application (CM-889-C-2016) for leading additional evidence
in the form of RTI information dated 14.11.2013 and 12.11.2013 to argue
that the story put forward by the plaintiff that the Tehsildar was not in his
office on 03.08.2005 is factually incorrect, because according to the RTI
information, the Sub-Registrar, Chamkaur Sahib was very well available in
the office and he registered 19 sale deeds starting from sale deed No. 1039,
which was registered at 10:07 AM and the last deed bearing No. 1057 was
registered at 03:30 PM.
18. I have considered the aforesaid plea raised by the learned
counsel for the appellant; however, I find no substance in the same. Firstly,
the pleaded case of the plaintiff was that the defendant did not turn up before
the office of Sub-Registrar till the lunch time. The plaintiff further claimed
that at 02:30 PM the plaintiff met the Sub-Registrar and requested that the
other party was not present, whereupon he was asked to show the
consideration amount, which he did, and at 03:30 PM, when the plaintiff
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RSA-272-2016 (O&M) -13-
again met the Sub-Registrar, then he was asked that his presence is not going
to be marked and the Sub-Registrar left his office.
19. Here it would be apposite to refer to Order 41 Rule 27 CPC,
which reads as under:-
“ 27. Production of Additional Evidence in Appellate Court:-
(1)  The parties to an appeal shall not be entitled to produce
additional evidence, whether  oral or documentary , in the
Appellate Court, But if:
(a) the Court from whose decree the appeal is preferred
has refused to admit evidence which ought to have been
admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was
passed, or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause,
the Appellate Court may allow such evidence or document to
be produced, or witness to be examined.
(2)   Wherever additional evidence is allowed to be produced
by an Appellate Court, the Court shall record the reason for its
admission.”
19.1 The Hon’ble Supreme Court of India in Gobind Singh and Ors.
Vs Union of India and Ors., 2026(2) RCR(Civil) 81, observed as under:-
“11.3. Rule 27, being couched in negative terms, makes it
abundantly clear that parties to an appeal are not entitled to
adduce additional evidence, whether oral or documentary, save
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and except in the circumstances expressly enumerated therein.
The provision contemplates only three eventualities in which
additional evidence may be permitted: first, where the court
which passed the decree has refused to admit evidence which
ought to have been admitted; second, where the party seeking to
adduce such evidence establishes that, notwithstanding the
exercise of due diligence, the evidence was not within its
knowledge or could not have been produced at the time when
the decree under appeal was passed; and third, where the
appellate court itself requires any document to be produced or
any witness to be examined in order to enable it to pronounce
judgment or for any other substantial cause.”
20. It is also well-settled that the additional evidence cannot be
permitted to be adduced so as to fill up the lacunae or to patch up the weak
points in the case.
21. It is worth noticing that the RTI information is stated to be
dated 14.11.2013 and 12.11.2013, whereas the learned Trial Court passed the
judgment and decree on 17.09.2014. It has not been put forth as to why the
said documents were not produced before the learned Trial Court at the
relevant time. It is also not forthcoming as to why such an application for
leading additional evidence was not filed before the learned First Appellate
Court. Accordingly, I find no substance in the application (CM-889-C-2016)
for leading additional evidence and the same is accordingly, dismissed .
22. Apparently, there are concurrent findings of fact returned by the
learned Courts below.
23. In Jaichand v. Sahnulal, 2025(2) Apex Court Judgments (SC)
336 ; Hon'ble Apex Court observed as under:-
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“24. In Navaneethammal v. Arjuna Chetty reported in AIR
1996 S.C. 3521 , it was held by this Court that the High Court
should not reappreciate the evidence to reach another possible
view in order to set aside the findings of fact arrived at by the
first appellate Court.
25. In Kshitisn Chandra Purkait v. Santhosh Kumar Purkait
reported in (1997) 5 S.C.C. 438) , this Court held that in the
Second Appeal, the High Court should be satisfied that the case
involves a substantial question of law and not mere question of
law.
26. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao
Marnor reported in 1999 (2) S.C.C. 471 , this Court held:-
"Keeping in view the amendment made in 1976, the High Court
can exercise its jurisdiction under Section 100, C.P.C. only on
the basis of substantial questions of law which are to be framed
at the time of admission of the Second Appeal and the Second
Appeal has to be heard and decided only on the basis of such
duly framed substantial questions of law. A judgment rendered
by the High Court under Section 100 C.P.C. without following
the aforesaid procedure cannot be sustained."
27. This Court in Kondira Dagadu Kadam v. Savitribai
Sopan Gujar reported in AIR 1999 S.C. 2213 held:-
"The High Court cannot substitute its opinion for the
opinion of the first appellate Court unless it is found that
the conclusions drawn by the lower appellate Court were
erroneous being contrary to the mandatory provisions of
law applicable or its settled position on the basis of
pronouncements made by the Apex Court, or was based
upon inadmissible evidence or arrived at without
evidence."
28. It is thus clear that under Section 100, C.P.C., the High
Court cannot interfere with the findings of fact arrived at by the
first Appellate Court which is the final Court of facts except in
such cases where such findings were erroneous being contrary
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to the mandatory provisions of law, or its settled position on the
basis of the pronouncement made by the Apex Court or based
upon inadmissible evidence or without evidence…”
24. Considering the totality of the circumstances, I see no
compelling reason which may warrant interference by this Court in the
present proceedings. There is no substantial question of law involved for
consideration by this Court.
25. Resultantly, the instant regular second appeal fails and the same
is accordingly, dismissed .
26. All the pending application(s), if any, shall also stand closed.
(HARSH BUNGER)
28.10.2026 JUDGE
Ankit
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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