Amit Rawal, J. - (1.) THIS Regular Second Appeal at the instance of the appellants -defendants Nos. 1 to 8 is directed against the judgments and decrees of the trial court whereby the suit for possession by way of specific performance of agreement to sell dated 31.1.1992 in respect of land measuring 79 Kanals 2 Marlas has been decreed and sale deed dated 1.4.98 bearing document No. 13 and second sale deed dated 2.4.98 bearing document No. 16 in favour of defendant No. 8 have been held to be illegal and wrong and defendant Nos. 1 to 7 being the legal representatives of deceased Rattan Singh -vendor have been directed to execute sale deed in favour of the plaintiff and plaintiff has been directed to incur the charges of sale deed as he has already made payment of entire sale consideration. Defendant No. 8 -subsequent vendee has also been directed to join hands with defendant Nos. 1 to 8 for executing the sale in favour of plaintiff within a period of three months from the date of order failing which the plaintiffs have been given liberty to execute the sale deed through the process of the court. The appeal filed by the appellants against the aforementioned judgment and decree has also been dismissed. Therefore the present Regular Second Appeal has been filed on various grounds.
(2.) MR . Arun Jain, learned Senior counsel appearing on behalf of the appellants -defendants submitted that the courts below have committed illegality and perversity in recording the finding that no suggestion had been put to PW -1 and PW -4 i.e. one of the scribe and other of attesting witness of the agreement to sell that Rattan Singh had never thumb marked any document or he used to append his signatures only. In support of his arguments he has referred to cross examination of the aforementioned witnesses by urging that the said witnesses were put the suggestion as to whether the agreement to sell was forged and fabricated. i) He further submitted that the agreement to sell dated 31.1.1992 pertaining to land measuring 79 Kanals 2 Marlas did not bear the signatures of witnesses on all the pages. ii) He further submitted that prior to the execution of the agreement to sell dated 31.1.1992 there was an entry dated 31.7.1991 in respect of land measuring 47 Kanals 11 Marlas. In both the agreements to sell two witnesses Bhajna Ram Dadra and Gurbachan Singh have appended their signatures but they have not been examined. Even on some pages there are no signatures of the vendee except thumb impression of the vendor. Even on the endorsement wherein alleged payment of money from time to time have been made by Surinder but none of the witnesses has come on record and even on the last page in the agreement to sell only one witness has appended his signatures. iii) He further submitted that at page 92 the lower appellate court in the concluding paragraph 21 has erroneously observed that it was the duty of the defendant to examine Bhajna Ram Dadra, Gurbachan Singh the witnesses of the agreement to sell. He further submitted that the onus was on the plaintiff to prove and not on the appellant -defendant. iv) He further submitted that in view of the fact that the appellant -defendant denied execution of the agreement to sell, much less receipt and has stated that the agreement to sell was forged and fabricated and defendant No. 8 -appellant is a bona fide purchaser for a valuable consideration said to have been purchased the suit property vide sale deed dated 1.4.1998 and 2.4.1998 Ex. P - 53 and P -54. He further submitted that lower appellate court has committed illegality and perversity in dismissing the application filed under Order 41 Rule 27 wherein the appellants -defendants had sought the indulgence of the court to summon the record from the cooperative bank to show and prove the signatures of Rattan Singh, vendor been appending his signatures and not thumb impression as the said evidence would have helped the lower appellate court in adjudicating the matter in a most fair and reasonable manner.
(3.) MR . Sanjya Majithia, learned Senior counsel appearing on behalf of the respondent submitted that since the appellant -defendant had averred in the plaint that the agreement to sell was an outcome of fraud and forgery but they failed to prove the said ingredients by leading a direct and cogent evidence. In essence he submitted that provisions of Order 6 Rule 4 CPC have not been proved. He further submitted that Rattan Singh was allotted a land under the Punjab Package Deal Property Act and all the installments were paid by the respondent -plaintiff and when the installments were paid, Rattan Singh had been acknowledging, aforementioned receipts, on the agreement to sell.;