Gurdeep Singh vs Kuldeep Raj and Others

H.S. Brar, J.—This is regular second appeal against the concurrent findings of the courts below vide which the suit of the Plaintiff-appellant stands dismissed.

Briefly stated, the case of the Plaintiff-appellant is that the defendant-respondent Kuldip Raj owned 19 kanal 1 marla of land which was 1/10th share of the total land measuring 190 kanals 10 marlas situated within the revenue estate of village Theh Malmoraa detailed in jamabandi for the year 1973-74. The above referred to Kuldip Raj agreed to sell the above-mentioned land to the plaintiff-appellant for a consideration of Rs. 32,183.70p vide agreement dated 11.7.1978 and he received an advance amount of Rs. 10,500/- at the time of execution of the agreement to sell. As per terms of the agreement, the sale was to be completed by 15.2.1979 on payment of the balance amount and in case of failure on the part of the plaintiff-appellant, the agreement was to be deemed to have been cancelled and the earnest money was to be forfeited. However, in case of default on the part of Kuldip Raj defendant-respondent (hereinafter referred to as respondent No. 1), the plaintiff-appellant Gurdeep Singh (hereinafter referred to as the appellant) was entitled to get the sale deed registered through the Court or was to get the double of the amount of the earnest money from respondent No. 1. It was the case of the appellant that he was always ready and willing and is still ready and willing to perform his part of the contract. Respondent No. 1, however, sold the land in question to defendant-respondent Nos. 2 and 3 vide sale deed dated 28.9.1978 ad the defendant-respondent Nos. 2 and 3 were threatening to dispossess the appellant by getting the land partitioned without disclosing the factum of the agreement to sell in favour of the appellant for which they have no right or title to dispossess him from the suit land. Respondent Nos. 2 and 3 in their written statement, controverted the allegations of the appellant and inter alia pleaded that they did not know of any agreement between the appellant and respondent No. 1 and nothing regarding the same was either brought to their knowledge or was in their knowledge at any point of time. In the written statement filed by respondent No.1, the possession of the appellant on the suit land was denied and it was stated that the land in dispute was free from any transactions and it was further mentioned that possession has never been of the appellant at any point of time. It was then stated that the joint possession of the share of respondent No.1 was given to respondent Nos. 2 and 3 who have already got the land partitioned and the warrant of possession has already been issued in their favour. Various other pleas were also taken to defeat the plea of the appellant. Consequently, the following issues were framed by the learned trial Court:-

"1. Whether defendant No.1 had agreed to sell the suit land vide agreement of sale dated 11.7.1987? If so, to what were the terms of the agreement? O.P.P.

Whether the plaintiff has always been ready and willing to perform his part of contract? O.P.P.

Whether the plaintiff is in possession of the land in suit? O.P.P.

Whether the defendant Nos. 2 and 3 are bonafide purchasers without notice and consideration? O.P.D.

Whether the suit is not maintainable in the present form? O.P.D.

Whether the agreement of sale is void and was the result of fraud? O.P.D.

Relief."

Both the parties led their evidence before the trial Court. The trial Court decided issue Nos. 2, 3, 4 and 5 against the appellant and in favour of defendant respondent Nos. 2 and 3. Ultimately, the suit of the appellant was dismissed with costs by the learned Sub-Judge, 1st Class, Kaithal vide his judgment dated 1.10.1983. Against that judgment of the learned Sub-Judge, an appeal was preferred by the appellant before the Additional District Judge, Kurukshetra. The learned Additional District Judge vide his judgment dated 24.2.1987, dismissed the appeal with costs.

It is in these circumstances that this regular second appeal against the judgements dated 1.10.1983 and 24.2.1987 of the Sub-Judge, 1st Class, Kaithal and the Additional District Judge, Kurukshetra respectively has been preferred. After going through the judgements of the courts below and after perusing the record, I do not find any ground to interfere with the concurrent findings of fact arrived at by the courts below.

Des Raj P.W.3 stated in his examination-in-chief that a sum of Rs. 10,500/-was paid as earnest money in his presence. Later on, in his cross-examination, he stated that Kuldip Raj had admitted having received the money. The witness also admitted that in fact sometime later on, his signatures were obtained on the agreement and in fact, the agreement was not written in his presence. Des Raj P.W.3 was not even confronted with the situation that the document was written in his presence. The other witness Buta Singh D.W.2 stated that his attestation was obtained on the agreement later on. He does not support the appellant in any respect. Kuldip Raj respondent appeared as D.W.1 who put a different story which was contradictory to his stand taken in the written statement. He had stated in his written statement that there was never an agreement to sell between the appellant and himself in respect of the suit land, nor had he ever issued any receipt in connection with the suit property as described by the appellant. Claim of the appellant was specifically denied by respondent No.1 in his written statement but before the trial Court, he took up an entirely contradictory stand wherein he stated that the agreement was executed by him with the appellant and he received a sum of Rs. 10,500/-. He, however, put up a story that in fact the sale deed Ex. P4 was secured by defendant-respondent Nos.2 and 3 from him when he was under the influence of liquor, whereas the agreement Ex.D1 and sale deed Ex.D.4 has been proved with cogent evidence in favour of respondent Nos. 2 and 3. D.W. 3 Ram Kishan has stated on oath that the agreement Ex.D.W.1 was executed in favour of respondent Nos. 2 and 3. Avtar Singh D.W.4 has come as an attesting witness of the agreement Ex.D.W. 1 and has supported the version put up by the defendant-respondent Nos. 2 and 3. D.W. 6 Inder Singh, Tehsildar stated that the sale deed Ex.D.4 was executed by respondent No.1 Kuldip Raj in favour of defendant-respondent Nos. 2 and 3. The sale deed, according to him, was read over to the parties to the sale an Kuldip Raj respondent No. 1 had read over the same after admitting its contents as correct. The plea of the appellant that defendant-respondent Nos. 2 and 3 have colluded with respondent No. 1 and secured a sale deed, a copy of which is Ex.D4, to harm the interest of the appellant, seems to be untenable particularly inn view of the factual position that the two attesting witnesses of the agreement Ex.P.1 have stated that this agreement was executed in suspicious circumstances and was not executed the manner alleged, nor did the consideration pass to the vendor Kuldip Raj respondent No. 1. There is no evidence on the basis of which it could be said that respondent No. 1 colluded with respondent Nos. 2 and 3. Respondent No.1 rather took a contradictory stand to the one he had taken in his written statement, perhaps to save his skin that later on be might not be hauled up for committing a fraud with defendant-respondent Nos. 2 and 3. It has been specifically stated by the Tehsildar when appearing in the witness-box that respondent No.1 came to execute the sale deed and there is nothing in the statement of the Tehsildar to say that the vendor (respondent No. 1) was under the in fluence of liquor and he was not capable of executing the sale deed.

A reference may be made to the findings on issue No.3 regarding the khasra girdawari Ex.PC for the year 1982-83. There is no mention that Gurdip Singh appellant was in exclusive possession of the land in question. The documents produced during the course of additional evidence thus, do not help the appellant in any way. The statement of the appellant himself is clear on the point that his possession is mentioned to be as one in joint possession of the co-owners. Moreover, there is no evidence on the record to show that any specific land was ever proposed to be sold to the appellant or the possession thereof was ever delivered to him. There is no evidence on the file to show that the appellant received any specific portion of the land. It may further be noted that there is no evidence on the record which could show that the defendant-respondents, i.e. vendees did have any notice about the previous agreement Ex.P. 1 between the appellant and respondent No. 1. It further deserves notice that even after 15.2.1979, the date when as per the case of the appellant, breach of agreement was made by respondent No. 1, the appellant did not give any notice to respondent No. 1 regarding specific performance of the agreement and even the suit was filed as late as on 28.5.1980. No notice was served to the subsequent vendees apprising them of any agreement or to guard them in this regard. This delay though does not debar the appellant to file a suit, which has otherwise been filed within limitation, but is one of the circumstances which goes to show that the agreement Ex.P. 1 was a fake one. Moreover, the sale deed dated 28.9.1978 in favour of defendant-respondent Nos. 2 and 3 is through a registered document which preceded with an agreement of sale and the appellant has come out with a suit after two years of the sale deed and there is no averment in the plaint or any plausible explanation given at the trial as to how the appellant actually came to know of the sale of land to defendant respondent Nos. 2 and 3.

In view of the reasons stated above, I do not find any fault with the concurrent findings reached at by both the courts below. In these circumstances, I have no option but to dismiss the appeal without any order as to costs.