Gurdial Kaur vs Nirmala Devi

L.N. Mittal, J.—Gurdial Kaur-defendant has filed the instant second appeal, having lost in both the Courts below.

Plaintiff-respondent-Nirmala Devi filed suit against the appellant for specific performance of the agreement to sell dated 21.05.2005 alleging that the defendant-appellant agreed to sell the suit property to the plaintiff respondent for Rs. 1,70,000/ - and received Rs. 50000/ - as earnest money and executed the aforesaid agreement. Sale deed was to be executed and registered on 05.08.2005. The plaintiff always remained ready and willing perform his part of the contract, but the defendant committed breach thereof. The plaintiff reached the office of Sub-Registrar on 05.08.2005 with requisite amount to get the sale deed executed in terms of the agreement, but the defendant did not turn up. On the contrary, defendant sent notice dated 24.06.2005, disowning the agreement. Plaintiff sent reply dated 25.06.2005 to the notice.

The defendant denied the plaint allegations. It was denied that defendant agreed to sell the suit property to the plaintiff and executed the agreement. It was pleaded that the agreement has been forged in connivance with scribe and attesting witnesses. The agreement is without consideration. The defendant is aged 80 years. Plaintiff allured her on the pretext of getting sanctioned pension for her and got her signatures on various documents. The defendant subsequently doubted the plaintiff''s intention and sent notice dated 24.06.2005. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Barnala vide judgment and decree dated 20.12.2007 decreed the plaintiff''s suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Barnala vide judgment and decree dated 10.03.2009. Feeling aggrieved, defendant has preferred the instant second appeal.

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

Plaintiff examined attesting witness of the agreement and also the typist, who had typed the agreement. The plaintiff herself also stepped into the witness box. All of them stated that defendant duly executed the agreement after understanding its contents. The plaintiff also examined one Sudhir Kumar with whom the defendant had previously entered into an agreement to sell the suit property, but did not honour the same and ultimately, she refunded the earnest money to Sudhir Kumar. On the other hand, defendant herself stepped into the witness box and stated according to her version. She also examined Preeto DW-2, who stated that defendant is a simpleton household lady and she had not entered into any agreement to sell.

Plaintiff has led sufficient evidence to prove her case. She had examined scribe and attesting witness of the agreement, besides herself stating about the execution of the agreement by the defendant. On the other hand, there is practically sole self serving oral statement of the defendant to prove her case of alleged fraud. Statement of Preeto DW-2 carries no evidentiary value on the issue because she could not be present with the defendant all the times and, therefore, Preeto could have no knowledge if defendant had executed the impugned agreement or not. Plaintiff''s evidence is cogent and reliable. Moreover, both the Courts below have appreciated the evidence and come to concurrent finding against the defendant. The said finding is not shown to be perverse or illegal in any manner. Lower appellate Court is the final Court of fact. No question of law, much less substantial question of law, arises for determination in the instant second appeal.

It is also worth mentioning that even before the date stipulated in the agreement for execution of sale deed, defendant sent notice dated 24.06.2005 disowning the agreement. It would depict that the defendant very well knew that she had executed the impugned agreement because otherwise, she could not have mentioned in the notice about the agreement if her signatures had been obtained on the pretext of getting pension for her. It is thus manifest that the defendant turned dishonest after executing the agreement and sent notice dated 24.06.2005 disowning and dishonouring the agreement.

Learned Counsel for the appellant contended that the appellant is not sole owner of the suit property as the same was purchased by her late husband and has been inherited by the defendant along with her two sons and a daughter. The contention cannot be accepted. Firstly there is no such pleading in the written statement. Secondly, there is also no sufficient evidence to substantiate this contention. Jamabandi and mutation placed on record in support of this contention do not help the appellant as the property mentioned in jamabandi and mutation is not linked with the suit property.

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