Harblas Singh vs Manjeet Singh

Rakesh Kumar Garg, J.—This is defendants'' second appeal challenging the judgment and decree of the trial Court dated 13.10.2011 whereby suit for possession of the suit property by way of specific performance of the agreement to sell in question was decreed by the trial Court. Further challenge has been laid to the judgment and decree dated 03.09.2013 of the lower Appellate Court dismissing the appeal of the defendants against the aforesaid judgment and decree of the trial Court.

The plaintiff-respondents filed the instant suit for specific performance of agreement to sell dated 13.4.2005 with regard to suit land measuring 57 kanals 11 marlas as detailed in the head note of the plaint.

It was averred on behalf of the plaintiff-respondents that defendant-appellants who were the owners in possession of the suit land, agreed to sell the same to the plaintiffs on 13.4.2005 at the rate of Rs. 2,98,000/- per killa for a total sale consideration of Rs. 21,43,737/- and received a sum of Rs. 4,50,000/- as earnest money and executed an agreement to sell in favour of the plaintiffs on the said date. Last date for executing the sale deed was on or before 28th February, 2006. It is the further case of the plaintiff-respondents that they remained ready and willing but the appellants failed to comply with the provisions of the terms and conditions of the agreement on the stipulated date. The plaintiff-respondents approached the appellants and asked them to get the sale deed executed and went to the office of Sub Registrar, Gidderbaha and waited there throughout the day but the appellants failed to turn up. The respondents got their presence marked by way of swearing an affidavit. Hence the suit.

Upon notice, appellants appeared and filed written statement raising various preliminary objections. The execution of agreement to sell in question and receipt of earnest money was denied. It was stated that the suit property was joint Hindu family property of the appellants and other family members. There was no necessity to sell the suit property. It is the further case of the appellants that actually they used to sell their crops through the commission agents at Gidderbaha and as per tendency prevalent amongst them, signatures and thumb impressions of the appellants were obtained by their commission agent. The appellants had a dispute of settlement of accounts with the commission agent, which was settled with the intervention of the respectables, but it appears that the respondents who are merely figure head in the case in hand and the suit has been got filed through them by the commission agent of the appellants. Rest of the paras of the plaint were denied and dismissal of the suit was prayed.

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

Whether the defendants entered into an agreement to sell the suit land to the plaintiffs on 13.4.2005 for a consideration of Rs. 2,98,000/- per killa? OPP

Whether the plaintiffs were/are still ready and willing to perform their part of contract? OPP

Whether the plaintiffs are entitled to decree for possession by way of specific performance by the agreement to sell dated 13.4.2005? OPP

Whether in the alternative the plaintiff is entitled to recover Rs. 9,00,000/- from the defendants? OPP

If issue No. 1 is proved, whether the agreement to sell is forged and fabricated document? OPD

Relief.

After considering the evidence on record and hearing learned counsel for the parties, trial Court decreed the suit vide judgment and decree dated 13.10.2011.

Feeling aggrieved from the judgment and decree of the trial Court, appellants filed an appeal before the First Appellate Court which was also dismissed vide judgment and decree dated 3.9.2013.

Still not satisfied, defendants have filed the instant appeal submitting that following substantial questions of law arise in this appeal:-

a) Whether the approach of the learned Courts below in decreeing the suit for specific performance of the agreement Ex. PB especially when the terms of the said agreement given an unfair advantage to the respondents and is thus hit by Section 20(2)(a) of the Specific Relief Act?

b) Whether the approach of the learned Courts below in decreeing the discretionary relief of specific performance is sustainable especially when the agreement Ex. PB is surrounded by various suspicious circumstances?

c) Whether the approach of the learned Courts below is liable to be reversed especially when the same is a result of non reading and misreading of material evidence and pleadings on the file?

d) Whether the approach of the learned Courts below that when the defendant had denied the execution of the agreement, he cannot dispute the readiness and willingness of the plaintiff, is not sustainable?

e) Whether the impugned judgments and decrees passed by the learned Courts below are liable to be reversed as the present suit has been got filed by the commission agents of the appellants and the respondents are merely the figure heads?

f) Whether the impugned judgment and decree passed by the learned Lower Appellate Court has not been passed in accordance with the mandatory provisions of Order 14 Rule 2 and Order 20 Rule 5 CPC as no separate and specific findings on all issues have been recorded?

Learned counsel for the appellants has vehemently argued that the Courts below while decreeing the suit have not taken into consideration various suspicious circumstances which would clearly show that agreement in question was actually never entered into. To support the argument, learned counsel for the appellants has submitted that the stamp paper on which agreement has been scribed does not bear the signatures of appellants and the parties went to the Court premises to get the agreement scribed on 13.4.2005 but inspite of this the agreement has not been even notarized. Moreover, the scribe of the document has not been examined and even witness to the agreement to sell is not known to the parties.

On the basis of the aforesaid facts, counsel for the appellants has argued that it is clearly established that the agreement to sell was never executed by the appellants. It has been further argued that the plaintiff-respondents are admittedly milkman and conductor and have failed to prove their financial means to arrange the heavy amount which more than Rs. 21 lacs. They have not brought any evidence on record to prove the fact that how they have arranged the money to execute the sale deed and all these facts clearly prove that the plaintiffs are the figure head of the commission agents of the appellants, namely, Diwan Chand whose son, namely, Rakesh Kumar was a witness to the alleged agreement to sell. However, the Courts below have failed to evaluate this aspect properly and the evidence on record has not been appreciated correctly and the execution of the agreement to sell in question and receipt of earnest money and willingness and readiness of the plaintiffs suffer from perversity.

Counsel for the appellants has further argued that the decree in question shall cause great hardship to the appellants and especially when the suit has been filed and in this view of the matter, the Courts below have failed to properly exercise its discretion in decreeing the suit for specific performance as the agreement to sell in question has provided a clearly unfair advantage to the plaintiff-respondents over the appellants and thus, substantial questions of law do arise in this appeal.

On the other hand, learned counsel for the plaintiff-respondents has supported the judgments and decrees of the Courts below as there is ample evidence on record to support the evidence of the Courts below.

Counsel for the respondents has further argued that it is not necessary for the plaintiff-respondents to prove the source of their financial means. Neither it was necessary to sign the stamp paper at the time of purchasing the same. Learned counsel for the respondents has vehemently argued that no fault can be found with the findings recorded by the Courts below and the appeal is liable to be dismissed.

I have heard learned counsel for the parties and perused the impugned judgments and decrees of the Courts below.

At the outset, it may be noticed that the appellants have denied the execution of the agreement to sell in question and the receipt of earnest money. However, due execution of the aforesaid agreement in question and payment of earnest money has been duly proved by the attesting witnesses and other evidence produced on record. Though an argument has been raised to the effect that the agreement in question is the handiwork of the commission agent of the appellants who used to get signatures/thumb impressions of his customers on blank stamp papers and the suit has been filed by the commission agents of the appellants in connivance with the plaintiff-respondents who are figure heads of the commission agents of the appellants. However, it could not be disputed before this Court that the plaintiff-respondents are not the customers of the commission agents of the appellants namely Diwan Chand. Admittedly, the plaintiff-respondents are the customers of commission agents having shop opposite to the commission agent of the appellant. Admittedly, no connivance has been pleaded between two commission agents. It may further be noticed that it is the case of the appellants themselves that they had a dispute with their commission agents which was settled with the intervention of respectables and in that situation there was no reason for his commission agents to have a grievance and use his blank stamp papers having his thumb impressions/signatures on a blank stamp paper. In fact, argument raised is beyond pleadings as there is no allegation that commission agents had the blank stamp paper having the signatures of the appellants. Moreover, no nexus has been pleaded and proved between the commission agent of the appellants as well commission agent of the plaintiff-respondents and in view of the aforesaid facts and circumstances of the case, the argument raised is misconceived and cannot be accepted. Moreover, there is ample evidence on record to prove the execution of the agreement to sell in question and receipt of earnest money and in view of the aforesaid evidence on record, it cannot be said that the findings are perverse in any manner.

Coming to the plea that the Courts below should not have granted the discretionary relief of specific performance in the instant case, suffice is to say that agreement to sell in question has been duly proved. Moreover, no hardship has been pleaded on behalf of the appellants. Furthermore, it has not been proved how unfair advantage has been given to the plaintiff-respondents over the appellants by granting the relief of specific performance in the facts and circumstances of the case.

At this stage, it may also be noticed that it is well settled that while exercising its jurisdiction u/s 100 CPC, this Court will not interfere in the discretionary powers of the Courts below u/s 20 of the Specific Relief Act, until and unless exercise of such a discretion in favour of the litigant is arbitrary and whimsical, which is not the case in hand.

No other point has been argued.

Thus, no substantial questions of law, as raised, arise in this appeal.

Dismissed.