Bashir vs Aliyas

L.N. Mittal, J.—Defendant Bashir having lost in both the courts below is in second appeal.

Respondent-Plaintiff Aliyas filed suit for possession of suit land measuring 5 marlas towards eastern side out of share of Defendant Appellant in

land measuring 2 kanals comprised of khasra No. 5//18/l by specific performance of the agreement to sell dated 3.7.2002. The Plaintiff alleged

that Defendant is owner in possession of 10 marlas land being 10/40 share in the aforesaid 2 kanals land. The Defendant agreed to sell 5 marlas

suit land being eastern part of his share to the Plaintiff for total consideration of Rs. 35,000/- and received Rs. 19,000/- as earnest money and

executed the impugned agreement to sell dated 3.7.2002. Sale deed was agreed to be executed upto 20.12.2002. Accordingly, the Plaintiff

attended the office of Sub Registrar on 20.12.2002 with requisite money to get the sale deed executed in terms of the agreement. Defendant did

not turn up and committed breach of the agreement, although the Plaintiff always remained ready and willing to perform his part of the contract.

The Plaintiff even served notice dated 6.1.2003 on the Defendant requiring him to execute sale deed in terms of the agreement.

The Defendant admitted the execution of the agreement and receipt of earnest money. The Defendant however pleaded that he was present in

the office of Sub Registrar on 20.12.2002 for execution of the sale deed in terms of the agreement but the Plaintiff himself did not have requisite

money to get the sale deed executed and consequently agreement stands lapsed and earnest money stands forfeited. Various other pleas were also

raised.

Learned Additional Civil Judge (Senior Division), Yamuna Nagar at Jagadhri vide judgment and decree dated 27.11.2008 decreed the

Plaintiff''s suit. First appeal preferred by the Defendant has been dismissed by learned Additional District Judge, Yamuna Nagar at Jagadhri vide

judgment and decree dated 17.8.2010. Feeling aggrieved, the Defendant has preferred the instant second appeal.

1 have heard learned Counsel for the Appellant and perused the case file.

As noticed herein before, execution of the agreement and receipt of earnest money by the Defendant stand admitted. The Plaintiff himself

appeared in the witness box as PW2 and repeated his version. He has also examined Joginder Singh Saini, Advocate PW1 and Vinesh Kumar

PW3. Vinesh Kumar PW3 stated that he attested affidavit Ex.P3 dated 20.12.2002 sworn by the Plaintiff on identification of Joginder Singh Saini,

Advocate PW1 who also made similar statement. Entry of the affidavit was also made in the register of Vinesh Kumar PW3.

On the other hand, Defendant appeared as DW1 and examined Mukesh Kumar, Advocate DW2 and Ram Parshad, Advocate DW3. They

broadly stated that Mukesh Garg PW2 attested the affidavit dated 20.12.2002 Ex.DW2/A sworn by the Defendant on the identification of Ram

Parshad DW3.

Learned Counsel for the Appellant contended that the Defendant was ready and willing to perform his part of the contract and he attended the

office of Sub Registrar on 20.12.2002 regarding which he also affirmed the aforesaid affidavit Ex.DW2/A. The contention cannot be accepted.

The aforesaid affidavit has been ante dated and fabricated by the Defendant to depict his presence in the office of Sub Registrar on 20.12.2002.

Trial court has observed that stamp papers for the aforesaid affidavit were purchased vide entry No. 1 1257 dated 23.12.2002 written on the

back of the affidavit but the serial number and date were changed to 11119 dated 20.12.2002 as was apparent on naked eye perusal of the

affidavit. It is, thus, manifest that the Defendant fabricated the aforesaid antedated affidavit. On the other hand, the Plaintiff himself was present in

the office of Sub Registrar and affirmed affidavit dated 20.12.2002 Ex.P3. Not only this, the Plaintiff even sent notice dated 6.1.2003 to the

Defendant requiring him to execute the sale deed. The Plaintiff even filed the instant suit on 22.1.2003. The very fact that the suit itself was filed just

one month after the date of sale deed stipulated in the agreement would further depict that the Plaintiff always remained ready and willing to

perform his part of the contract. It may also be added that in agreement to sell immovable property, time is not the essence of the contract unless it

is so made by the parties expressly or impliedly. In the instant case, there is even no plea by the Defendant that time was made essence of the

contract by the parties either expressly or impliedly. Even circumstances of the case do not depict that time was essence of the contract.

Consequently, filing of suit just one month after the date stipulated for execution of the sale deed would entitle the Plaintiff to relief of specific

performance, more so because he was always ready and willing to perform his part of the contract.

Learned Counsel for the Appellant next contended that the Plaintiff-Respondent by amendment of plaint claimed the alternative relief of

recovery of double the earnest money as also stipulated in the agreement and therefore, instead of granting relief of specific performance of the

agreement, the alternative relief should have been granted to the Plaintiff. The contention cannot be accepted. Ordinarily when agreement to sell is

proved or admitted, the Plaintiff is entitled to relief of specific performance of the agreement unless there is some special reason to decline the said

relief. In the instant case, there is no reason much less special reason to decline the relief of specific performance of the agreement. On the

contrary, conduct of the Defendant-Appellant has been malafide and dishonest.

Both the courts below on appreciation of evidence have come to concurrent finding in favour of Plaintiff-Respondent. The said finding is based

on proper appreciation of evidence and fully justified by the evidence on record and is supported by cogent reasons. No interference is warranted

in the said finding in second appeal as the said finding is not shown to be illegal or perverse in any manner. No question of law much less substantial

question of law arises for determination in the instant second appeal. The appeal is devoid of any substance and is accordingly dismissed in limine.