Durlabh Singh vs Nahar Singh and Others

Ashok Bhan, J.—This is Defendant�s appeal challenging the judgment and decree passed by Sub Judge 1st Class, Ludhiana, dated 1-6-1978 whereby the suit of the Plaintiff-Respondent for specific performance of the agreement dated 16-10-1975 for sale of agricultural land measuring 10 Bighas 6 Biswas comprised in Khewat No. 6, Khatauni No. 6, Khasra No. 42 (4B-UB) and 43 (5B-15-B) situaned in village Kotla Afghana District Ludhiana, was decreed. The facts giving rise to the present appeal are:

The Defendant-Appellant agreed to sell land under agreement dated 16-10-1975 for a sum of Rs. 41,200/- at the rate of Rs. 4,000/- per Bigha. A sum of Rs. 15,000/- was paid as earnest money at the time of execution of the agreement of sale. The last date for execution of the sale deed was 15-6-1976. The further averment in the plaint was that the land agreed to be sold was under mortgage with Bhupinder Singh, Defendant No. 2 for a sum of Rs. 9,000/- and it was agreed between the parties that this mortgaged amount would be paid by the Plaintiff-Respondent out of the total sale price so that the Plaintiff may get the land redeemed from Defendant No. 2. The Plaintiff was always ready and willing to perform his part of the contract and is still willing and ready to perform his part of contract. The Plaintiff went to the Sub Registar�s office on 15-6-1976 which was the last date for execution of sale deed but the Defendant-Appellant did not turn up there. The Plaintiff issued notice to Defendant to execute the sale deed which he did not, hence the present suit for specific performance of the contract was filed.

The Defendant appeared and resisted the suit filed by the Plaintiff. The execution of the agreement of sale was denied. Alleged agreement dated 16-10-19 5, if any was alleged to be false and fictitious document being the result of fraud and deception played upon him with the connivance of marginal witness and the scribe. The receipt of earnest money of Rs. 15,000/- was denied. Issuance of notice by the Plaintiff to the Defendant for execution of the sale deed was also denied.

On the pleadings of the parties, the following issues were framed :-

Whether Defendant No. 1 executed an agreement dated 16-10-1975 and received Rs. 15,000/- as earnest money from the Plaintiff?

What is the effect of non-mentioning of mortgage amount in favour of Defendant No. 2 in agreement?

Whether the Plaintiff remained willing and ready toperform his part of contract?

Whether the written statement filed by the Defendant is not proper?

4-A. If decree for specific performance is not prssed, whether the Plaintiff is entitled to damages?

5 Relief.

After recording evidence, the trial Court came to the conclusion that a valid agreement of sale was executed by Defendant-vendor in favour of Plaintiff-vendee and that the Plaintiff was ready and willing and is still ready and wiling to perform his part of the contract.

Issue No. 2 was also decided against the Defendant No. 1. The suit for specific performance of agreement of sale deed dated 16-10-1975 was decreed. The Defendant has filed the present appeal.

I have heard the learned Counsel for the parties at length and permed the oral and documentary evidence present on the record, My finding on each issue are at under;

Issue No. 1

The Plaintiff has proved the execution of agreement, Ex. PI dated 16-10-1975 by examining himself as PWl, He also examined Harbans Singh PW3, deed writer and PW4 Santokh Singh lambardar, a marginal witness of the agreejnent of sale. They have all proved that agreement, Ex. PI was executed by the Defendant in favour of the Plaintiff and that the Plaintiff and paid a sum of Rs. 15,000/- as earnest money to Defendant No. 1. The land was agreed to be sold at the rate of Rs. 4000/- per Bigha. The agreement of sale was read over to the Defendant-Appellant and he, after understanding the contents thereof, signed the same in token of its execution. Defendant No. 1 Durlabh Singh has not challenged his signatures on the agreement of sale. His only plea is that the agreement is the result of fraud and deception played upon him by the Defendant in connivance with the scribe and the marginal witness. His plea is that he is simple rustic, The Defendant has not given any particulars of fraud and deception in the written statement filed by him. In the absence of any particulars of the alleged deception or fraud, the Defendant could not be permitted to lead any evidence in that direction., In view of the affirmative evidence of the scribe and the marginal witness coupled with the testimony of the Plaintiff, it can safely be concluded that the agreement of sale, PI was validly executed and Durlabh Singh Defendant-Appellant had signed the same after understanding the contents thereof. The plea of Durlabh Singh, Appellant is that he had no occasion to sell the land as he was in no particular need of money, cannot be accepted. Defendant-Appellant has admitted his signatures on the agreement of sale. Once the signatures are accepted, the onus to prove that the agreement of sale was got executed from him by deception or fraud, shifts on Defendant. In this case no particulars of deception-or fraud have been given in the written statement and in the absence of the same, he could not be permitted to lead any evidence in that direction or raise any argument. I have perused the oral testimony of the Plaintiff as well as Defendant�s witnesses and find that no cogent evidence has been led by the Defendant-Appellant to show that the agreement of sale was got executed from him by fraud or deception. It is further held that the earnest money of Rs. 15,000/- was paid to the Defendant-Appellant by the Plaintiff at the time of execution of agreement of sale. Findings on issue No. 1 are thus affirmed.

Issue No. 2

It is argued by the learned Counsel for the Appellant that there is no mention in agreement, Ex.P1 that the land in dispute was under mortgage with Defendant No. 2 for Rs. 9,000/- and this goes to show that the agreement of sale was a result of fraud and deception. I do no find any substance in this submission of the learned Counsel for the Appellant. Merely non-mentioning of the fact that the land was under mortgage for Rs. 9,000/- with Defendant No. 2 does not lead to the conclusion that the agreement of sale was either void or avoidable. Findings on this issue are, therefore, affirmed.

Issue No. 3

There was no serious challenge to the fact that the Plaintiff has always been ready and willing to perform his part of the contract. In fact, the Plaintiff by presenting himself before the Sub-Registrar on 15-6-1976 which wag the last date for execution of the tale deed, moved an application, Ex. P4 on which an endorsement was made by the Sub-Registrar''s office vide Ex. P4/1. This shows that on 15-6-1976 the Defendant did not turn up to execute the sale deed. This again shows that the Plaintiff, on 15-6-1976, was ready and willing to perform his part of the contract but the Defendant did not turn up to execute the sale deed. The Defendant has denied the valid execution of the agreement itself. The breach was thus committed by the Defendant-Appellant by not executing the sale deed in favour of the Plaintiff-Respondent.

Issue No, 4

The Defendant-Appellant had alleged that the agreement of sale was a result of fraud and deception as no particulars of fraud or deception were given by him in Ms written statement. To this extent the written statement is defective. This issue is accordingly decided in favour of the Plaintiff-Respondent and against the Defendant-Appellant.

Issue No. 4-A

Learned Counsel for the Appellant has argued that relief of specific performance be not given to the Plaintiff-Respondent after a lapse of 18 years, do not find any substance in this submission. The case is pending in this Court for the last 12 years. The Plaintiff-Respondent cannot be made to suffer because this Court could not hear the case for all these years. Otherwise also in cases of immovable properties, specific performance of the contract of sale is invariably granted. Simply because the Plaintiff had prayed for recovery of Rs. 30,000/- in the alternative (Rs. 15,000/- as earnest money and Rs. 15,000/- as damages), he cannot be denied the first relief of specific performance of the contract. Refund of earnest money and awarding of damages would not be an adequate relief to the Plaintiff Respondent in this particular case.

For the reasons recorded above, this appeal is dismissed with no order as to costs. The Defendant is directed to get the sale deed executed within two months from today on payment of the remaining sale price failing which the trial Court shall execute the sale deed on behalf of the Defendant on deposit of the balance sale consideration by the Plaintiff. No costs.