Baikunth Lal vs Dita Ram

Dharam Chand Chaudhary, J.—The present suit has been filed for specific performance of agreement to sell, dated 24.6.2003 Ex. P-3 allegedly executed by defendant Dita Ram (since dead) in favour of the plaintiff.

The subject matter of dispute in the present lis is the land comprised in Khata Khatauni No. 45/42, Khasra No. 231/166, measuring 3-15 Bighas, Khasra No. 71, measuring 3-11 Bighas and Khasra No. 233/74, measuring 3-4 Bighas, Kite 3, total measuring 11 Bighas, situate in Village Johoron, Pargana Khol, Tehsil Nahan, District Sirmaur, H.P., hereinafter to referred to as ''the suit land''. Entries in the Jamabandis Ex. PA and PB show said Dita Ram to be owner-in-possession of the suit land. Plaintiff Baikunth Lal, claims that said Dita Ram entered into an agreement to sell the suit land to him on 24.6.2003 in a sum of Rs. 49,62,000/-. Deceased Vendor received a sum of Rs. 10,00,000/- towards part payment of the sale consideration on the day of execution of the agreement itself. The balance sale consideration was agreed to be paid on the date of execution of the sale deed i.e. 31.12.2003. The plaintiff approached Shri Dita Ram aforesaid on 24.12.2003 and requested him to get the sale deed executed in his favour and also to receive the balance sale consideration. He, however, expressed his inability to execute the sale deed on or before 31.12.2003 and to the contrary extended time for execution thereof upto 20.1.2004 vide supplementary agreement Ex. P-4. The time for execution of the sale deed was extended thereafter also i.e. upto 31.3.2004 vide supplementary agreement Ex. P-5. The plaintiff allegedly remained present in the office of Sub-Registrar, Nahan on 31.3.2004 with balance sale consideration; however, Dita Ram did not turn up. The plaintiff in order to mark his presence on that day in the office of Sub-Registrar had moved the application Ex. P-1 on 31.3.2004. He even served said Shri Dita Ram with legal notice dated 17.3.2004 Ex. P-6, which was sent through registered post. The postal receipt Ex. P-7 is also pressed into service in this regard. Dita Ram, however, did not execute the sale deed. Ultimately vide supplementary agreement Ex. P-8, he agreed to extend the time for execution of the sale deed upto 15.5.2004. On 15.5.2004, also the plaintiff remained present throughout the day in the office of Sub-Registrar, Nahan, however, Dita Ram, did not turn up on that day also and the plaintiff in order to mark his presence in the office of Sub-Registrar had moved application Ex. P-2.

Precisely the case of the plaintiff is that the defendant Dita Ram (since dead) though agreed to sell the suit land to him, however, despite receipt of Rs. 10,00,000/- in advance, failed to perform his part of the agreement. On the other hand, he remained present in the office of Sub-Registrar on 31.3.2004 and 15.5.2004 with balance sale consideration as well as ready and willing to perform his part of the agreement, said Dita Ram did not turn up and it is for this reason the sale deed could not be executed, hence the suit for specific performance of the agreement to sell Ex. P-4.

In the written statement, the suit has been sought to be dismissed on the ground that the plaintiff has not approached this Court with clean hands having concealed material facts. It is denied that the defendant had executed an agreement Ex. P-4 on 24.6.2003 and thereby agreed to sell the suit land to the plaintiff in a sum of Rs. 49,62,000/- and received Rs. 10,00,000/- in advance as earnest money. The plea, the defendant (since dead), raised in his defence rather is that he was an illiterate man knowing only to append his signature that too in vernacular. The plaintiff taking advantage of his illiteracy and ignorance, approached him to buy only a portion of the suit land for the purpose of development and paid a sum of Rs. 10,00,000/- towards token money. The plaintiff agreed to get the sale deed registered within a specific period of a portion of the suit land. He allegedly to the contrary forged the agreement to sell dated 24.6.2003, qua sale of the entire suit land by practicing fraud upon the defendant. It is pointed out that original agreement contains only five paragraphs and paragraph 6 was added by the plaintiff later on by way of interpolation. The plaintiff allegedly got blank papers signed from the defendant and used the same in order to fabricate the supplementary agreement regarding extension of time for execution of the sale deed. The plaintiff allegedly failed to perform his part of the contract by not coming forward to execute the sale deed in respect of a portion of the suit land agreed to be sold by the defendant to him. The time being an essence of the contract, therefore, the so called agreement dated 24.6.2003 stands repudiated with the passage of time and there now exists no valid and subsisting contract inter se the parties. The supplementary agreement with respect to the alleged extension of time to execute the sale deed based upon the signature of the defendant obtained on blank papers are stated to be neither valid nor on the basis thereof any subsisting relationship of vendor and vendee between the parties could be inferred. The execution of supplementary affidavits qua extension of time by the defendant in favour of the plaintiff has therefore, been denied, being wrong.

In replication, while denying the contents of the preliminary submissions being wrong, the plaintiff has reiterated his case as set out in the plaint.

On the pleadings of the parties, following issues were framed on 27.9.2005:

"1. Whether parties entered into agreement of sale of the suit property on 24.6.2003 and also vide supplementary agreements dated 24.12.2003, 20.1.2004 and 17.4.2004 for consideration of Rs. 49,62,000/- out of which a sum of Rs. 10,00,000/- stands already paid by the plaintiff to the defendant? OPP

In case issue No. 1 is proved in the affirmative, whether plaintiff was and is even now ready and willing to perform his part of contract of the above agreement, if so its effect? OPP

In case issue No. 1 is proved in affirmative, whether the plaintiff is entitled to Rs. 1 lac as damages and compensation in addition to the relief of specific performance, if not to what relief he is entitled to? OP Parties.

Whether the suit is properly valued for the purpose of court fee and jurisdiction, if not what is correct valuation for such purpose? OP Parties.

Whether the suit is not maintainable, as alleged by the defendant, if so effect? OPD

Whether parties had intended to make the time as essence of the contract, if so its effect? OPD

Whether the agreements were obtained by practicing fraud and misrepresentation of facts, as alleged in paragraph 7 of the written statement, if so its effect? OPD

Relief."

The parties have been put to trial on all the issues.

PW-1 Dharam Singh is Junior Assistant in the office of Tehsildar, Nahan, District Sirmaur. He has proved the two applications Ex. P-1 and P-2 moved by plaintiff to Sub-Registrar, Nahan on 31.3.2004 and 15.5.2004 to record his presence on these dates in the Tehsil office. Plaintiff has himself stepped into the witness box as PW-2 and proved the agreement to sell dated 24.6.2003, Ex. P-3, supplementary agreement dated 24.12.2003, Ex. P-4, another supplementary agreement dated 20.1.2015, Ex. P-5 and supplementary agreement dated 17.4.2004, Ex. P-8. He has also proved the copy of notice Ex. P-6 and postal receipt Ex. P-7, besides stating on oath whatever he averred in the plaint. PW-3 Puna Ram is a marginal witness to the agreement to sell Ex. P-3 and supplementary agreements Ex. P-4, Ex. P-5 and Ex. P-8.

Defendant Dita Ram had himself stepped into the witness box as D.W.-1 and his son Dhani Ram appeared in the witness box as D.W.-2. Defendants have also examined Shri Gian Chand D.W.-3 to prove that Dita Ram defendant had agreed to sell a portion of the suit land to the plaintiff, who is a property dealer and the latter assured the former that he will arrange some land at Village Mubarkpur for him in lieu of the land, which was agreed to be sold. D.W.-4 Rameshwar Dass is owner of tractor and has stated that on hiring the tractor by the defendants, he cultivated their land. It is the defendants, who, according to this witness, used to cultivate the suit land.

During the course of arguments, Shri K.D. Sood, learned Senior Advocate has pointed out from the record that execution of the agreement to sell Ex. P-3 by deceased Dita Ram in favour of the plaintiff stands established from the evidence available on record. Also that the defendant in order to defeat the just and legitimate claim of the plaintiff, has invented a false story that the agreement to sell was only qua a portion of the suit land and not entire land. According to Mr. Sood, despite default clause in the agreement i.e. payment of double of the earnest amount, on the failure, if any, of the plaintiff can not be taken to conclude that the agreement is not enforceable. Support in this regard has been drawn from the judgment of the apex Court in Manzoor Ahmed Margray Vs. Gulam Hassan Aram and Others, AIR 2000 SC 191 : (1999) 8 JT 34 : (1999) 6 SCALE 350 : (1999) 7 SCC 703 : (1999) 3 SCR 380 Supp : (1999) AIRSCW 4283 : (1999) 8 Supreme 430 . It is therefore, urged that the suit may be decreed.

On the other hand Shri Ramakant Sharma, Advocate, learned counsel has urged that the defendants are poor person and the plaintiff, a property dealer, taking undue advantage of the illiteracy and simplicity of their father Dita Ram, has forged and fabricated the alleged agreement to sell Ex. P-3 and also the supplementary agreements Ex. P-4, Ex. P-5 and Ex. P-8. It is also denied that a sum of Rs. 10,00,000/- has been paid to the defendants towards part payment of the sale consideration. It is rather contended that only a portion of the suit land was agreed to be sold by the deceased defendant to the plaintiff and token money Rs. 1,00,000/- towards the sale consideration was paid. Even if the agreement Ex. P-3 is proved to be true, the liability of the defendants to pay double of the so called earnest money Rs. 10,00,000/-.

Having gone through the given facts and circumstances and also the evidence available on record as well as the rival submissions, findings on the aforesaid issues are as under:--

Issues No. 1 to 3 and 7.

These issues being interlinked and interconnected can conveniently be disposed of altogether in order to avoid repetition of the pleadings and also the evidence.

While onus to prove issues No. 1 and 2 is on the plaintiff, the onus to prove issue No. 3 is on both parties, whereas issue No. 7 is on the defendants.

The suit land bearing Khasra Nos. 231/166, 71 and 233/74, Kitte 3, measuring 11 Bighas, situate in Village Johoron, Pargana Khol, Tehsil Nahan, District Sirmaur, H.P. Defendant Dita Ram (since dead) was owner in possession of the suit land. It is so proved from the copy of Jamabandis for the year 2000-2001 Ex. PA and Ex. PB.

It is to be seen from the evidence produced by the parties on both sides that the execution of the agreement Ex. P-3 and also supplementary agreements Ex. P-4, P-5 and P-8 is proved or not. Also that the defendant agreed to sell the suit land to the plaintiff for consideration i.e. Rs. 49,62,000/- and paid Rs. 10,00,000/- as earnest money or not. Agreement to sell is Ex. P-3. The plaintiff, while in the witness-box as PW-2 and PW-3 Puna Ram, the marginal witness to Ex. P-3, no doubt, tell us that this document has been executed by the defendant and received Rs. 10,00,000/- in advance, as earnest money. This document on the face of it bears the signature of deceased defendant and also that of the plaintiff. Shri Puna Ram, PW-3 has also identified his signature encircled red at point ''A''. In this document, although deceased defendant Dita Ram, while in the witness box as D.W.-1 has stated that he did not sign the agreement Ex. P-3, yet such statement has come in his cross-examination. So far as his examination-in-chief is concerned, though he admitted about deal of land with plaintiff, however, that was only qua one bigha of land and not that of entire suit land measuring 11 bighas. He further tells us that the plaintiff, as a matter of fact, has agreed to exchange the land with some land situated in Mukandpur, Tehsil Narayangarh, District Ambala, Haryana. The possession of that land was also taken over by him. He expressed his ignorance about any agreement and clarified that his signatures were obtained on some blank papers. The testimony of the defendant that he did not execute the agreement Ex. P-3 seems to be not in accordance with the factual position because if his signatures thereon are compared with those on Ex. P-1 and Ex. P-2, the affidavits he filed in support of reply to the application OMP No. 212 of 2004 and OMP (M) No. 221 of 2005, the same tally with each other. The signature on the affidavit again marked as Ex. P-3, the deceased defendant filed in support of reply to OMP (M) No. 112 of 2005 though not tallies with his signatures on the agreement Ex. P-3, however, the facts remain that the signatures of said Dita Ram on the affidavit Ex. P-1 and P-2 are identical to that on the agreement Ex. P-3. These documents were blank cannot also be believed to be true because he has signed the same on each and every page thereof and even stamp papers were also purchased by him in his own name.

Para 6 of the agreement Ex. P-3, on the face of it, has, however, been added later on. It can be said so from the spacing, in which its all paras have been typed out, which squeezed tremendously while typing out this para. Even, word ''Double'' in the last line of para 6, has been brought outside i.e. towards the margin of the paper in left side and the concluding words ''Double of E.M.'' have come straight in line with words ''In witness whereof'' of un-numbered last para. The type writer used to add para 6 also seems to be different. The possibility of para 6 having been added in Ex. P-3 at some later stage may be when the sale deed could not be executed and there being apprehension that the defendant may not execute the agreement cannot be ruled out. Since Ex. P-3 was in the custody of the plaintiff, therefore, he could have easily made additions therein. PW-3 in his cross-examination, has admitted that para 6 of Ex. P-3 was inserted after the first draft was prepared. No doubt, he has clarified that the first draft was not verified by the parties. However, this para seems to be added later on as had it been added after rejection of the first draft, there was no need to change the trend of typing and also squeezing of space. However, if para 6 is excluded from the agreement Ex. P-3 paras 1 to 5 still remain there and as already said hereinabove since this document bears the signature of defendant Dita Ram, therefore, the defendants are not justified in disputing the signature of said Shri Dita Ram on this document.

Dita Ram though used to put signature, however, looking to his signature, it would not be improper to conclude that he was illiterate and any how or other could have learnt to write his name. It is, therefore, doubtful that he was in the knowledge of the contentions of this document. Otherwise also, even the defence of the defendants is that though deal to sell the land to the plaintiff did take place, however, not of the entire suit land, but only of one Bigha. Out of the same and in lieu thereof, the plaintiff agreed to purchase land for the defendants at Village Mukandpur in Tehsil Narayangarh, Haryana. Therefore, on this score also, agreement Ex. P3 cannot be out rightly rejected.

Ex. P-3, No doubt, has been dictated and drafted by Shri P.S. Saini, Advocate, Nahan. Mr. Saini, however, has not been examined to show that the contents of this document were read over and explained to Dita Ram in vernacular and that he had signed this document after admitting the contents thereof to be true and correct. Though the plaintiff while in the witness box as PW-2, whereas Puna Ram, the marginal witness PW-3, have stated that the contents of Ex. P-3 were read over and explained to deceased defendant Dita Ram and he had put his signature thereon after admitting the same to be correct. It is, however, the scribe Shri P.S. Saini, Advocate, who allegedly read over the contents of this document in vernacular to defendant, was a material witness. He, however, has not been chosen to be examined by the plaintiff to the reasons best known to him. The own version of the plaintiff being interested in the success of his case, however, cannot be relied upon and as regards, Puna Ram, PW-3, he has stated nothing as to who read over the contents of Ex. P-3 to deceased Dita Ram. Therefore, it is the scribe Mr. P.S. Saini, Advocate, who could have thrown some light on this part of the plaintiff''s case. He, however, has been withheld and as such it would not be improper to draw adverse inference against the plaintiff, that the contents of Ex. P-3 were not read over and explained to the defendant.

The pith and substance of the discussion hereinabove, therefore, would be that the agreement Ex. P-3 bears the signature of deceased defendant Dita Ram, however, it is not proved that he agreed to sell the entire suit land measuring 11 bighas to the plaintiff in a sum of Rs. 49,62,000/- and also received Rs. 10,00,000/- in advance as earnest money, it is difficult to conclude so. True it is that the plaintiff and Puna Ram while in the witness box as PW-2 and PW-3 have stated in one voice that entire suit land was agreed to be sold, however, the defence of the defendant that negotiation qua sale of only a portion thereof did take place that too on the condition that the plaintiff had to arrange for land at village Mukandpur in lieu thereof also find support from the own statement of defendant Dita Ram while in the witness box as D.W.-1 because as per his version, the plaintiff accompanied by other persons including Puna Ram approached him for sale of land measuring one Bigha and in lieu thereof agreed to exchange the land in village Mukandpur. He, as per his own testimony and also that of his son D.W.-2 and D.W.-3 Gian Chand, was put in possession of the land at Mukandpur. The land proposed to be exchanged at Mukandpur was even broken also as has been stated by D.W.-2 Dhani Ram and D.W.-3 Gian Chand as well as D.W.-4 Rameshwar Dass. D.W.-2 and D.W.-3 have further gone in stating that the land at Mukandpur was made cultivable and crop was also sown. D.W.-3 further tells us that the land was levelled by Rameshwar Dass D.W.-4, who owns a tractor. D.W.-4 Rameshwar Dass resident of village Dhanana, Tehsil Narayangarh, Haryana tells us that he owns a tractor. The land of Khairati Ram (it is the land at village Mukandpur allegedly agreed to be exchanged with the defendant), he levelled at the instance of the defendant on consideration of wages as his services were hired by the defendant. According to him, the area of the land was about 15 acres. D.W.-2 further tells us that when they went to harvest the crop they were not allowed to do so. Also that though they approached to Tehsildar for execution of the document (Sale deed), but the Tehsildar refused to register the same. Also that since money was not paid by the plaintiff and other persons, therefore, the documents could not be registered. Therefore, it is not so simple to say that the deceased defendant agreed to sell the entire suit land in a sum of Rs. 49,62,000/- and received a sum of Rs. 10,00,000/- towards earnest money also.

The delay though seems to have taken place, however, not in the manner as claimed by the plaintiff, but on the assurance to provide some other land to the defendant in village Mukandpur in exchange thereof. This Court, therefore, is not satisfied that the defendant had agreed to sell the entire suit land measuring 11 bighas to the plaintiff. When as per the testimony of the deceased Dita Ram and also that of his son D.W.-2, they are 16 members and living in the house constructed over the suit land, having their cow-shed also there, how the entire land could have been agreed to be sold to the plaintiff. In case any such agreement was there, it was conditional one, may be on the assurance that alternative site/land will be arranged for the defendants at Mukandpur as has come in the evidence discussed hereinabove. No doubt PW-3, Puna Ram, the marginal witness, who also claims to be the Pradhan of the area during his cross-examination conducted on behalf of the defendant, has denied the suggestion that the suit land and house in existence thereon is the only property on which they are dependant being wrong and it is stated that the defendant had another house and other land in the same village, however, no evidence such as Jamabandis etc. of some other land and house belonging to the defendant in the same village has been produced in evidence. As a matter of fact, had there been any other land belonging to the defendants and other house in existence thereon, the evidence to substantiate the same in the form of revenue record could have been easily produced. For withholding of such evidence from the Court, an adverse inference has to be drawn against the plaintiff. It would, therefore, not be improper to conclude that the suit land and the house in existence thereon is the only property belonging to the defendants on which they are dependant and as such the deceased defendant could have not afforded to dispose of the same by selling to plaintiff that too without making alternative arrangement. The plaintiff seems to be a property dealer. Since the suit land is situated nearby industrial area and abutting to road, the possibility of the same was being acquired for further sale on higher prices to set up industries thereon cannot be ruled out.

Otherwise also, the defendants could have not thought of to alienate the entire suit land including house and cow-shed in existence thereon as in that event the family comprising 16 members would have rendered shelter-less and no place left to tether the cattle head. It is also difficult to believe that Rs. 10,00,000/- was paid in advance as earnest money to deceased defendant Dita Ram because firstly he has failed to show by way of cogent and reliable evidence as to from where he arranged for the earnest money. He is not an income tax payee, as he himself disclosed in his cross-examination. In case a piece of land belonging to him in State of Haryana was sold by him, why he has not placed on record the sale deed. He even failed to disclose as to how much was the sale consideration; he received by selling such piece of land. He rather expressed his ignorance in this regard. Normally, had the land been sold by him, he would have in the knowledge of the sale consideration thereof because it cannot be believed to be true that a person having sold the land is not recollecting the sale consideration, he received. He, therefore, avoided to answer suggestion put in this behalf intentionally and deliberately. He is stated to have borrowed some money i.e. Rs. 2,00,000/- from one commission agent namely Sanjay Singla and Rs. 1,20,000/- from one Jasvinder. How said Shri Singla and Jasvinder would have given him loan without any writing executed in this regard because the plaintiff while in the witness box has stated that no writing was executed. Above all said Shri Sanjay Singla and Jasvinder have not been examined, therefore, this part of his statement also seems to be not correct. It is, therefore, highly doubtful that the plaintiff paid Rs. 10,00,000/- to deceased defendant Dita Ram. Otherwise also, a person of ordinary prudence will never take risk of making payment of such a huge amount in cash. The plaintiff, who, to my mind, is a property dealer, would have not paid such a huge amount that too in advance in cash. Had the payment of such amount been made to the defendant, he would have paid the same either through cheque or Bank draft. The failure to do so leads to the only conclusion that no such payment was made to the defendant.

There is another aspect viz the appropriation of the amount, if so received, by defendant Dita Ram. No doubt, as per the testimony of PW-3, the deceased defendant had deposited the same in his account in UCo Bank, Kala Amb Branch. Had it been so, the plaintiff would have produced in evidence the statement of accounts of the so called bank account of the deceased defendant or examined someone from the Bank to prove that there was account of defendant Dita Ram in the said Bank and that Rs. 10,00,000/- was deposited by him in the said account. Therefore on this score also, it is not proved that a sum of Rs. 10,00,000/- was paid in advance by the plaintiff to deceased Dita Ram. On the other hand Dita Ram, while in the witness-box as D.W.-1, has himself admitted that the plaintiff had paid only a sum of Rs. 1,00,000/- to him.

In view of the facts of the case and also evidence discussed hereinabove, though it is proved that agreement Ex. P-3 bears signature of deceased defendant Dita Ram, however, he to his knowledge and notice, agreed to sell entire suit land including house and other structure in existence thereon, it is difficult to believe so. Therefore, it would not be improper to conclude that the agreement Ex. P-3 is the result of fraud played upon the defendant and misrepresentation of facts by the plaintiff. The deal qua sale of land though did take place between the plaintiff and defendant; however, it is not proved that such deal was of entire land. It is also not proved that agreed sale consideration was Rs. 49,62,000/- and that Rs. 10,00,000/- was paid in advance as earnest money. The earnest money as received by deceased defendant Dita Ram, however, was Rs. 1,00,000/- and in lieu of the deal of the sale of the suit land i.e. only one bigha, the plaintiff had to arrange land to the said defendant at village Mukandpur in Tehsil Narayangarh, Haryana.

If coming to the execution of the supplementary agreements Ex. P-4, P-5 and P-8, it is doubtful that the same bear the signatures of deceased defendant Dita Ram for the reason that his signatures thereon not tally with the one on agreement Ex. P-3 and the evidence Ex. P-1 and P-2. Not only this but even on these three documents also, there are no similarity of his signatures because the signatures on Ex. P-4 differ from the signatures on Ex. P-5 and P-8. Although neither the plaintiff nor defendant, have taken steps to get the signatures on these documents compared from Government Examiner of Questioned Documents, yet on comparison of his signatures on these documents by the Court itself leads to the only conclusion that these documents have not been signed by deceased defendant Dita Ram. If the agreement Ex. P-4 is seen, though the same bears the signatures of defendant on both pages, however, such signatures put simultaneously itself differs from each other. It is, therefore, highly doubtful that the defendant executed supplementary agreement Ex. P-4, P-5 and P-8 and thereby extended the time for execution of the sale deed from time to time. Therefore, in the considered opinion of this Court, the defendant has not executed the supplementary agreements Ex. P-4, P-5 and P-8 of his free volition and rather it is the plaintiff, who seems to have fabricated and forged the same behind the back of the defendant and as such the result of fraud. The entries in the remarks column of the Jamabandis Ex. PA and PB reveal that this Court has ordered status quo qua suit land may be in a case filed by the previous owner of the suit land, which was acquired by Dita Ram on confirmation of proprietary right being a non-occupancy tenant. In view of such entries in the revenue record, how the sale deed could have been registered. Had the plaintiff been entered into the deal qua the sale of the suit land with the defendant, he would have gone through the entries in the revenue record. Therefore, in view of such entries, there was no question of execution of the sale deed by the defendant in favour of the plaintiff that too of the entire suit land.

Now coming to the readiness and willingness on the part of the plaintiff to perform his part of the contract, on the strength of the legal notice Ex. P-6 and also the applications again marked as Ex. P-1 and P-2 moved with a prayer to mark his presence before Tehsildar, Nahan on 31.3.2004 and 15.5.2004 have been pressed into service. As per the admission of the defendant, he had received legal notice Ex. P-6, however, did not opt for submitting reply thereto. The defendant has ignored the same and rightly so because in view of the findings recorded hereinabove, he never agreed to sell the entire suit land. The filing of applications Ex. P-1 and P-2 also stands proved from the testimony of PW-1 Dharam Singh in the office of Tehsildar Nahan, who has produced the record and proved these documents to be true and correct. The presence of the plaintiff in the office of Tehsildar on 31.3.2004 and 15.5.2004, however, hardly of much help to his case because no agreement in the form of Ex. P-3 came to be executed between the parties. In the absence of any evidence that the plaintiff had the balance sale consideration i.e. Rs. 39,62,000/- on these two dates also belies his case that he was present on the two dates along with balance sale consideration and as such was ready and willing to perform his part of the agreement.

True it is that during the pendency of the suit, on the statement made by Sanjeev Kuthiala, Advocate initially representing the defendant in the suit, amicable settlement was sought to be arrived at on deposit of Rs. 51,00,000/- in addition to Rs. 10,00,000/- allegedly received earlier as earnest money. The order to this effect was passed in the suit on 9.12.2004, however, no such settlement could be arrived at and ultimately Mr. Kuthiala, had to move an application registered as OMP No. 209 of 2005 seeking his withdrawal from the case which was allowed vide order dated 13.5.2005. Not only this, but the plaintiff filed an application OMP No. 112 of 2005 with a prayer to draw judgment and decree in terms of the order dated 9.12.2004 referred to supra qua alleged amicable settlement arrived at between the parties passed by this Curt. In this application, the following two issues were framed on 10.8.2005;

"1. Whether defendant had not instructed his counsel to make statement on 9.12.2004, if so, its effect? OPD

Relief.",

and after taking on record the evidence produced by way of affidavit(s), this Court had declined the prayer of the plaintiff to draw a decree in terms of the order dated 9.12.2004 and the application was dismissed vide reasoned order passed on 9.9.2005. Meaning thereby that the defendant had never instructed his counsel to compromise the suit and rather it is the plaintiff, who by hook and crook intends to acquire this property obviously for commercial purpose. The defendant did not agree also to sell the entire suit land vide agreement Ex. P-3 being not proved so with the help of cogent and reliable evidence. Therefore, the plaintiff was ready to pay Rs. 51,00,000/- during the pendency of the suit in this Court in addition to Rs. 10,00,000/- allegedly already paid is hardly of any help in the absence of any agreement to sell the entire suit land. The readiness and willingness of the plaintiff to pay Rs. 51,00,000/- rather reveals that he any how or other intends to acquire the suit land irrespective of no agreement to this effect is in existence.

In view of what has been said hereinabove, agreement Ex. P-3 no doubt, bears the signatures of deceased defendant Dita Ram, also that some deal qua sale of land between the defendant and plaintiff also taken place, however, he agreed thereby to sell the entire suit land including the house and other structure in existence thereon is not proved for want of cogent and reliable evidence. The supplementary agreements Ex. P-4, P-5 and P-8 have also not been proved for want of cogent and reliable evidence. The payment of Rs. 10,00,000/- to the defendant Dita Ram as earnest money is also not proved and rather the plaintiff appears to have paid only a sum of Rs. 1,00,000/- to him. The plaintiff, therefore, is entitled to refund of Rs. 1,00,000/- from the defendants.

It being so, issue No. 1 is decided accordingly i.e. partly in favour of the plaintiff, whereas issue No. 7 in favour of the defendant. Issue No. 2, as a matter of fact, become redundant because when the agreement to sell the entire suit land along with house and structure in existence thereon is not proved, the readiness and willingness of the plaintiff even if treated to be proved is hardly of any help. The plaintiff is not entitled to any damages. Thus issue No. 3 is also answered against the plaintiff.

Issues No. 4 and 5

Preliminary objections in the written statement that the suit is not properly valued for the purpose of Court Fee and Jurisdiction, hence not maintainable, leading to settle these issues seems to have been raised merely for rejection for the reason that neither any arguments addressed nor any findings pressed on behalf of the defendants during the course of arguments. It is also not known as to how the suit is not valued properly for the purposes of Court Fee and jurisdiction and how it is not maintainable. Therefore, when the pleadings in this regard in the plaint remained uncontroverted the same have to be believed to be true and correct. Both the issues are therefore, answered in negative and against the defendant.

Issue No. 6.

The onus to prove this issue lies on the defendants.

This issue has been carved out from the pleadings in the written statement that the plaintiff, as agreed upon, has failed to come forward for execution of sale deed of a portion of the suit land and as the time being the essence of contract, the agreement dated 24.6.2003 stands repudiated. As held hereinabove, the agreement qua deal of land was in existence, however, not qua the entire suit land, but a portion thereof i.e. one bigha as has been pleaded in the written statement and come in the statement of deceased defendant Dita Ram. The plaintiff never approached the defendant for execution of the sale deed qua a portion of the suit land and even if it is believed that he approached the defendant, it was in connection with the entire suit land, which as per the findings already recorded, was never intended to be sold. In the agreement, though there is a reference qua sale of entire suit land, however, while answering issue No. 1 to 3 and 7 supra, it is held that the contents of the agreement were not read over and explained in vernacular to defendant Dita Ram, nor it is so proved with the help of legal and acceptable evidence. Therefore, the defendant had never agreed to sell the entire suit land and as regards a portion thereof the own admission of the defendant reveals that he was ready to execute the sale deed of a portion of the suit land but it is the plaintiff who himself did not turn up. Therefore, the agreement, according to defendants, stands repudiated. However, time was essence of the agreement to sell with regard to sale of the small portion/one bigha of land is not proved from the pleadings in the written statement nor the evidence as has come on record by way of the testimony of defendant Dita Ram. As a matter of fact, the deal to sell the land was there, however, the deceased defendant had agreed to execute the sale deed of small portion/one Bigha of land within specified period, no plausible and acceptable evidence has come on record. Above all, as is held hereinabove, defendant Dita Ram was not apprised about the contents of the agreement and as such there was no question of agreeing to some specific time for execution of the sale deed even the small portion/one Bigha of land. It being so, the defendant has failed to prove that the time being essence of the contract and on the expiry thereof the same stands repudiated, however irrespective of the findings in negative, the plaintiff is not entitled to any relief because he claims the agreement to sell executed qua the sale of entire suit land and not a portion thereof which being not proved, has been discarded while answering issue No. 1 to 3 and 7. This issue is, therefore, answered in negative i.e. against the defendants.

Relief.

In view of the findings on all the issues hereinabove, the suit for specific performance of the agreement fails and the same is accordingly dismissed. The claim of the plaintiff for recovery of Rs. 1,00,000/- by way of damages and compensation being devoid of any merits also deserves rejection. He, however, is held entitled to the refund of a sum of Rs. 1,00,000/- he paid to the deceased defendant Dita Ram in advance. The defendant to refund this amount to the plaintiff within one month from the date of this decree, failing which together with interest @ 9% per annum from the date of institution of the suit till realization of the same. The suit, therefore, is decreed only to this limited extent. No order so as to costs. Decree sheet be prepared accordingly.