Darbara Singh vs Satish Kumar and Another

L.N. Mittal, J.—Darbara Singh defendant No. 1 is in second appeal.

Satish Kumar plaintiff filed suit against the appellant Darbara Singh and against State Bank of India Respondent No. 2/defendant No. 2. Plaintiff''s case is that defendant No. 1-appellant vide agreement dated 4.3.1998 agreed to sell suit land measuring 16 kanals to the plaintiff for Rs. 1,10,000/- and received Rs. one lac as earnest money and executed said agreement. Sale deed was to be executed upto 30.6.1999. However, on 30.6.1999 date for execution of the sale deed was extended to 2.2.2000 by making endorsement on the back of the agreement. Accordingly, on 2.2.2000 the plaintiff attended office of Sub Registrar with requisite amount to get the sale deed executed in terms of the agreement but defendant No. 1 did not turn up. Thus, defendant No. 1 committed breach of agreement whereas plaintiff has always been ready and willing to perform his part of the agreement. The plaintiff even sent notice dated 28.4.2001 to defendant No. 1 but still defendant No. 1 did not execute the sale deed. On the contrary, defendant No. 1 mortgaged suit land with defendant No. 2.

Defendant No. 2 was proceeded ex parte whereas defendant No. 1 contested the suit and denied plaint allegations. Defendant No. 1 pleaded that he was selling his agricultural produce at the shop of M/s Banwari Lal Raja Ram Commission Agents of which plaintiff is a partner. Defendant No. 1 used to take money according to his needs from the said Commission Agents and thumb impressions of defendant No. 1 used to be obtained on the blank stamp papers as security for the said amounts. However, the same were adjusted from the sale proceeds of crops of defendant No. 1. The said firm was not keeping proper accounts and therefore, defendant No. 1 stopped selling his produce through the said firm and intended to file suit for rendition of account. Plaintiff has used blank stamp paper for forging agreement. It was also pleaded that market price of the suit land was not less than Rs. 2 lacs per acre whereas according to agreement the sale price is Rs. 55,000/- per acre only. Endorsement regarding extension of date of sale deed does not bear thumb impression of defendant No. 1. Various other pleas were also raised.

Learned Civil Judge (Junior Division) Fazilka vide judgment and decree dated 28.2.2005 granted alternative relief of recovery of Rs. one lac with interest @ 12 % per annum w.e.f. 4.3.1998, the date of agreement till passing of the decree and future interest @ 6% per annum from the date of decree till recovery. Relief of specific performance of the agreement was declined. Defendant No. 1 preferred first appeal against judgment and decree of the trial court and plaintiff filed cross objection in the said appeal. Learned Additional District Judge, Ferozepur vide judgment and decree dated 6.9.2008 dismissed the appeal preferred by defendant No. 1 and accepted the cross-objections preferred by plaintiff-Respondent No. 1 and decreed the suit for specific performance of the agreement. Feeling aggrieved, defendant No. 1 has preferred the instant second appeal.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the appellant vehemently contended that plaintiff was satisfied with the alternative relief granted by the trial court and did not prefer any appeal against judgment and decree of the trial court and therefore, learned lower appellate court erred in granting relief of specific performance of the agreement. It was also contended that plaintiff is proved to be partner of M/s Banwari Lal Raja Ram as stated by Raja Ram DW1 who also deposed that defendant No. 1 appellant had been selling his produce through said firm and thus, the trial court rightly granted alternative relief of recovery of money holding the agreement to be security for recovery of money.

On the other hand, learned Counsel for plaintiff-Respondent No. 1 contended that execution of the agreement is fully proved and therefore, the plaintiff is entitled to relief of specific performance which has been rightly granted by the lower appellate court. It was also contended that plaintiff-Respondent No. 1 would also have preferred appeal against the judgment and decree of the trial court so as to seek specific performance of the agreement and since defendant No. 1 had preferred first appeal, plaintiff filed cross-objection therein to claim the said relief.

I have carefully considered the rival contentions. It is correct that defendant No. 1 had been selling his produce at the shop of M/s Banwari Lal Raja Ram of which the plaintiff is partner. However, this circumstance itself is not sufficient to deny the relief of specific performance of the agreement to the plaintiff. On the contrary, ordinarily when agreement to sell is proved, the vendee is entitled to relief of specific performance. In the instant case, defendant No. 1 appellant has failed to bring his case within the parameters of Section 20 of the Specific Relief Act, 1963. On the contrary, defendant No. 1 pleaded that his thumb impressions had been obtained on blank stamp papers which were converted into impugned agreement. However, it has come in evidence that even entry of the agreement in the register of the Deed Writer had been thumb marked by appellant-defendant No. 1. If the plaintiff had obtained thumb impressions of defendant No. 1 on blank stamp papers at the shop, there would not have been thumb impression of defendant No. 1 in register of the Deed Writer against entry of the agreement. Plaintiff has examined Deed Writer who scribed the agreement, one attesting witness of the agreement and also one witness of writing dated 30.6.1999 regarding extension of date of execution of sale deed, besides the plaintiff himself stepping into witness box. On the contrary there is practically sole self serving bald statement of defendant No. 1 that his thumb impressions were obtained on blank stamp papers. However, the said bald statement was falsified by his thumb impression in the register of the Deed Writer. Plaintiff has examined Fingerprint Expert to prove all the thumb impressions of defendant No. 1 on the agreement as well as on the writing regarding extension of date of execution of sale deed and also in the register of Deed Writer. Science of comparison of fingerprints is perfect science. Defendant No. 1 has not examined any Expert witness to depict that thumb impressions in question referred to herein before are not his thumb impressions. It is, thus, manifest that due execution of the agreement as well as writing dated 30.6.1999 is fully proved. It may be added that defendant No. 1 emphatically asserted that writing dated 30.6.1999 does not bear his thumb impression. However, this plea of defendant No. 1 has also been proved to be false because the said writing is proved to bear thumb impression of defendant No. 1.

In view of the aforesaid, I find no reason to decline the relief of specific performance of the agreement to plaintiff-Respondent No. 1. The said relief has been rightly granted by lower appellate court. No question of law much less substantial question of law arises for determination in the instant second appeal. There is concurrent finding by both the courts below regarding execution of the agreement and writing dated 30.6.1999. Defendant No. 1 also failed to substantiate his plea that market price of the suit land was more than Rs. 2 lacs per acre whereas agreement is admittedly for consideration of Rs. 55,000/- per acre. However, it is not proved that the consideration recited in the impugned agreement is inadequate and less than the market price at the relevant time.

For the reasons aforesaid, I find no merit in the instant appeal which is accordingly dismissed.