Buta Singh and others vs Kishan Singh and others

J.V. Gupta, J.—This judgment will dispose of Regular First Appeals Nos. 510 and 666 of 1975, as both of them have been filed against the same judgment of the trial Court dated July 30, 1975. Regular First Appeal No. 510 of 1975 has been filed on behalf of the Plaintiffs to challenge the decree of the trial Court whereby their suit was only decreed for possession of one-half share of the suit land, belonging to Kishan Singh, Defendant, through specific performance of the contract of sale dated June 4, 1971, whereas Regular First Appeal No. 666 of 1975 has been filed on behalf of the Defendants aggrieved against the decree of the trial Court passed in favour of the Plaintiffs.

The Plaintiffs brought the suit for possession by way of specific performance of the agreement to sell, dated June 4, 1971, Exhabit P. 2 allegedly executed by Kishan Singh and Darshan Singh, Defendants Nos 1 and 2, respectively, in favour of the Plaintiffs to sell their land measuring 29 kanals 5 marlas. The suit land belonged to the Defendants jointly and in equal shares. Buta Singh, Plaintiff No. 1 and Bakshish Singh son of Sohan Singh were already in its possession as mortgagees from both the Defendants. The Defendants had agreed to sell the suit land vide agreement to sell, Exhibit P. 2. According to the terms and conditions thereof, the sale deed was to be executed on or before December 30, 1971 and in the event of the default on the part of the Defendants, the Plaintiffs were entitled to get the said agreement specifically enforced against them through Court. The sale price agreed between the parties was Rs. 26,325/-, at the rate of Rs. 7,200/- per killa. Out of the same, Rs. 5,000/ were alleged to have been paid to the Defendants at the time of the execution of the agreement to sell by way of earnest money and the balance sale price was payable at the time of the execution and the registration of the sale deed. Rs. 4,000/- were kept with the Plaintiffs for payment to the previous mortgagees. According to the Plaintiffs, they had always been ready and willing to perform their part of the agreement, but the Defendants had wilfully committed the breach thereof. Thus, they filed the present suit on April 8, 1974, for specific performance of the agreement to sell, Exhibit P. 2, and in the alternative, for the recovery of Rs. 10,000/- as the damages and compensation for the breach of the agreement to sell on the part of the Defendants. In the written statement, filed on behalf of Defendants Nos 1 and 2, they admitted the factum of their ownership of the suit land and its mortgage in favour of the Plaintiff and Bakshish Singh. However, the case set up by them was that it was Kishan Singh, Defendant, who had agreed to sell the suit land qua his share alone. The receipt of Rs. 5,000/- as the earnest money by them was denied It was also denied that the Plaintiffs were ready and willing to perform their part of the agreement, Exhibit P. 2. Since the Plaintiffs were already in possession of the suit land as the mortgagees, they delayed the execution and registration of the sale deed. On the pleadings of the parties, the trial Court framed the following issues:

Whether Darshan Singh Defendant No. 2 executed the disputed agreement of sale dated 4.6.71 and if so, its terms and to what effect ?

Whether any amount as earnest money was paid to Darshan Singh and Kishan Singh, Defendants, and if so, bow much?

Whether the Plaintiffs have been ready and willing to perform their part of the contract of sale in question and if not so, to what effect ?

Whether the Plaintiffs, in the alternative are entitled to damages and the refund of earnest money and if so, how much in total?

Relief.

Under issue No 1, the trial Court found that Darshan Singh Defendant, never executed the agreement to sell the suit land in favour of the Plaintiffs. It was only Kishan Singh, Defendant, who executed the said agreement, as admitted by him in his written statement Under issue No 2. it found that no amount of earrest money was paid by the Plaintiffs either to Kishan Singh or to Darshan Singh, Defendant. Under issue No. 3. the finding returned was that the Plaintiffs had been and were still ready and willing to perform their part of the agreement to sell, Exhibit D. 2. In view of these findings, the Plaintiffs'' suit was decreed for possession by way of specific performance of the agreement to sell, to the extent of one-half share of the suit land belonging to Kishan Singh, Defendant, on payment of the proportionate sale price at the rate of Rs. 7,200/- per killa. Their suit regarding the remaining one half share of the suit land was dismissed. As observed earlier, feeling aggrieved against the same, both the Plaintiffs, and the Defendants have filed these two separate appeals in this Court.

The Learned Counsel for the Plaintiffs-Appellants contended that the findings under issue No. 1 and 2 have been wrongly recorded by the trial Court According to the Learned Counsel the Plaintiff Karam Singh, appeared as P W 2 and categoricially stated that the agreement, Exhibit P 2, was thumb marked by Darshan Singh, Defendant, as well There was no challenge to this part of the statement of this witness in the cross-examination The Plaintiffs have not examined any other witnesses to corroborate this fact Om Parkash who had typed the agreement, Exhibit P 2 is stated to be alive by the Plaintiffs. The same is the position with respect to the attesting witnesses of the agreement. But the Plaintiffs have not examined even them what to speak of the scribe Om Parkash On the other hand, Darshan Singh, Defendant, appeared as his own witness as D.W. 2, and stated that he never agreed to sell the suit land to the Plaintiffs, nor he ever executed the agreement to sell, Exhibit P. 2. He is corroborated to this effect by his brother and co Defendant Kishan Singh, D.W 3. Surprisingly enough, according to the agreement, it bears the thumb-impression of Darshan Singh, Defendant. No effort was made on behalf of the Plaintiffs to prove the said thumb-impression of Darshan Singh, Defendant, thereon by examining any handwriting expert. On the appreciation of the evidence, the trial Court rightly came to the conclusion that the preponderance of evidence was in favour of the Defendants that Darshan Singh, Defendant, never executed the agreement to sell, Exhibit P. 2, for the sale of the suit land in favour of the Plaintiffs.

The Learned Counsel for the Plaintiffs-Appellants further contended that under issue No-2, it has been wrongly held by the trial Court that a sum of Rs. 5,000/- was not paid by way of earnest money. According to the Learned Counsel once the said recital was made in the agreement to sell, itself, then the Defendants were debarred from leading any oral evidence to prove it otherwise in view of the provisions of Section 92 of the Evidence Act I am afraid the provisions of Section 92 of the Evidence Act are not at all attracted in the present case. At the most a presumption arises in favour of the Plaintiffs when the execution of the agreement to sell, Exhibit P 2. is admitted by Kishan Singh, Defendant. At the same time, he was entitled to show that the said recital in the agreement was wrong. As observed earlier, the Plaintiffs, did not examine any other witness than Karam Singh P.W. 2 on this point, who only asserted that earnest money was paid to the Defendants vide agreement to sell, Exhibit P. 2. However, he has not stated on oath as to what was the amount of the earnest money. The trial Court has discussed the entire evidence under issue No. 2 and has observed:

There is nothing on the record except the bare assertion of the Plaintiff Karam Singh that Mangal Singh was a relation of the Defendants and that is why this witness should not be believed. That assertion stands contradicted not only by the Defendants, but also by Mangal Singh himself The witness is neither interested in the Defendants nor against the Plaintiffs, nor is there any material brought on the record showing that he had any enmity or prejudice against the Plaintiffs to depose against them.

Apart from that if once it is held that the agreement to sell, Exhibit P. 2, was not thumb marked by Darshan Singh, Defendant, then a suspicion is created regarding the recital in the said agreement to sell, with regard to the payment of Rs. 6,000/- as the earnest money. Thus, the trial Court has rightly found that the presumption raised by the recital in the agreement to sell, about the passing of the earnest money stood rebutted, and that no amount of earnest money was paid by the Plaintiffs either to Kishan Singh or to Darshan Singh, Defendant.

As regards the finding under issue No. 3, it was for the Defendants Appellants to challenge the same No meaningful argument has been raised to challenge the said finding of the trial Court. Therefore, it is held that the Plaintiffs had been and are still ready and willing to perform their part of the agreement to sell.

In this view of the matter, both the appeals fail and are dismissed with no order as to costs.

It has been stated at the bar on behalf of the Defendants that Plaintiffs have not paid the sale price directed by the trial Court. Admittedly, the Plaintiffs have been in possession of the suit land throughout this period. In case, the said amount was not paid as directed by the trial Court, the Plaintiffs shall deposit the same alongwith interest at the rate of 6 per cent per auunm from the date of the decree of the trial Court till payment. The Plaintiffs shall pay the amount on or before April 8, 1985.