- (1.) Appellant-Defendant is aggrieved of the judgment and decree rendered by the Lower Appellate Court, whereby the suit for specific performance of the agreement to sell dated 20.2.1985 in respect of land measuring 1 kanal 10 marlas with five feet karam out of Khasra No.1277/134/4 (2-5), 1279/135 (3-0), Khata No.41, 39, 54, Khatoni No.90 as per jamabandi for the year 1980-81, situated in Village Kotli Nangal H.B.No.334, Tehsil and District Gurdaspur, has been decreed.
(2.) Mr.Animesh Sharma, learned counsel for the appellantdefendant submits that the respondent-plaintiff instituted the suit on 3.1.1986 propounding the aforementioned agreement to sell for total sale consideration of Rs. 48,000/- against the payment of Rs. 45,000/- as earnest money, stating therein that the time was not the essence. Both the attesting witnesses, namely, Bishan Singh PW-8 and Rajnish Kant PW-9 have not supported the case of the respondent-plaintiff. Even the payment, aforementioned, had not been proved. In fact, appellant-defendant did not enter into agreement to sell. Both the Experts, though have given the reports in favour of their respective clients, but the fact remains that the agreement to sell does not bear the signatures. On the basis of the aforementioned evidence, the trial Court dismissed the suit. In fact, the respondent-plaintiff was working as a Gardner in the Orchard. The Lower Appellate Court has completely misprojected in holding that one of the attesting witnesses had admitted that he signed the agreement Ex.P1, whereas it is not so. The Lower Appellate Court has completely brushed aside the definition of "attestation" as given in Section 3 of the Transfer of Property Act by holding that the agreement to sell had actually been executed. The Lower Appellate Court has also erred in drawing the adverse inference against the appellant that the paper on which the alleged agreement was written was one of the series of four such papers brought by the appellant. In fact, the trial Court has rightly pointed out that there was a discrepancy regarding the entry of the document in dispute.
(3.) He further submits that the statement of Dewan K.S.Puri, Document Expert, has been brushed aside, who stated that the agreement to sell did not bear the signature of Asha Soni. The Lower Appellate Court heavily relied upon the statement of the Stamp Vendor, whereas he has not proved his register as to whether the stamp paper was purchased by Asha Soni or it bore her signature. All these factors have not been taken into consideration, therefore, the judgment and decree under challenge are liable to be set-aside.;