Hari Singh vs Mastan Singh

Rakesh Garg, J.—This is defendant''s second appeal challenging the judgment and decree of the trial Court dated 5.10.1982 whereby suit of the plaintiff-respondent for specific performance of the agreement to sell in question was decreed. Further challenge has been laid to the judgment and decree of the Lower Appellate Court dated 25.7.1986 dismissing his appeal against the aforesaid judgment and decree of the trial Court.

As per the averments made in the suit, appellant Hari Singh agreed to sell the suit property in favour of plaintiff-respondent No. 1 for a sum of Rs. 8,000/- and entered into an agreement dated 28.4.1980 and received a sum of Rs. 2,000/- as earnest money. It was the further case of plaintiff-respondent No. 1 that Hari Singh-appellant further received a sum of Rs. 5700/- on 2.7.1980 and the remaining amount was to be paid at the time of registration of the sale deed which was to be executed upto 1.8.1980. It was the further case of plaintiff-respondent No. 1 that he was ready and willing to perform his part of the agreement to get the sale deed executed at his expenses but the defendant-appellant did not turn up. Hence, the present suit.

The appellant contested the suit denying the execution of agreement to sell the suit property in favour of plaintiff-respondent No. 1. According to the appellant, the alleged agreement to sell dated 28.4.1980 was invalid and fake and therefore, no specific performance could be effected.

At this stage, it may further be noticed that on an application moved by Gurdial Kaur wife of Hari Singh-appellant, she was joined as defendant No. 2 in the suit (now respondent No. 2), who contested the suit stating that her husband Hari Singh never entered into an agreement with plaintiff-respondent No. 1. He neither agreed to sell the suit land nor received any amount as earnest money from him. According to her, she was the owner in possession of the suit land in view of the judgment and decree dated 18.3.1981.

On the pleadings of the parties, the following issues were framed vide order dated 4.6.1981:

"1. Whether the defendant entered into an agreement dated 28.4.1980 for sale of the suit property to the plaintiff and obtained a sum of Rs. 2000/- from the plaintiff as earnest money? OPP.

Whether the defendant received a sum of Rs. 5700/- from the plaintiff as per writing dated 2.7.1980? OPP.

Whether the plaintiff was ready and willing to perform his part of the contract? OPP.

Whether the defendant committed the breach of the contract? OPP.

Whether the suit is not maintainable in the present form? OPD.

Whether the plaintiff is entitled to the specific performance of the agreement to sell dated 28.4.1980, if so to what terms? OPP.

Whether in the alternative the plaintiff is entitled to the return of Rs. 8000/- OPP.

Relief"

The following additional issues were also framed on 31.3.1982:

"8. Whether Smt. Gurdial Kaur defendant becomes the owner of the suit property as per decree dated 18.3.1981? If so its effect? OPD-2.

Whether the decree dated 18.3.1981 is collusive between the defendants, obtained to defraud the plaintiff? If so its effect? OPP.

Relief."

No other issue was raised or pressed.

Both the parties produced evidence in support of their contentions.

At this stage, it may be noticed that Hari Singh-appellant was examined before framing of the issues and he deposed that he does not know how to sign and further that plaintiff-respondent No. 1 had not obtained from him any writing with respect to the sale of his land.

The trial Court decided issues No. 1 and 2 in favour of plaintiff-respondent No. 1 and against the appellant holding that the execution of the agreement to sell in question was duly proved and that the appellant received the amount of Rs. 5700/- from plaintiff-respondent No. 1 as per writing dated 2.7.1980. Issues No. 3 and 4 were also decided in favour of plaintiff-respondent No. 1 holding that he was ready and willing to perform his part of contract whereas the appellant had failed to perform his part of the contract. Issues No. 5 and 6 were held in favour of plaintiff-respondent No. 1 whereas issues No. 8 and 9 were held against the defendants. Resultantly, the suit was decreed in favour of plaintiff-respondent No. 1.

Aggrieved from the aforesaid judgment and decree of the trial Court, defendant No. 1 filed an appeal before the Lower Appellate Court which was also dismissed vide impugned judgment and decree dated 25.7.1986 observing as under:

"In fact it is finding of the learned trial Court that on issue No. 6, only which has been seriously challenged by the learned counsel for the appellant-defendant No. 1 before me at the time of arguments. The main argument of the learned counsel for the appellant-defendant No. 1, is that the property to be sold, was described in the agreement to sell, Ex. P.1 through boundaries, while no Khasra No. of the land was given therein and there is no evidence on the file to show that the suit land which has been described by khasra Nos. in the plaint, is the same land, which is the subject mater of agreement to sell, Ex. P. 1. It has been claimed by respondent No. 1, plaintiff in para No. 4 of the plaint that the land, which is the subject matter of the agreement to sell dated 28.4.80, is the suit land measuring 11 Bighas, as per entries in the revenue papers. The appellant-defendant No. 1, in his written statement has merely stated that para no. 4 of the plaint is not admitted and he has not mentioned as to which else land is the subject matter of the agreement to sell Ex. P.1 in the agreement to sell Ex. P.1. It has been mentioned that Hari Singh appellant-defendant No. 1, vendor is the owner and in possession of land measuring 11 bighas, which is to be sold and that land is known as Bhuddi Wali, and the boundaries of the said land have also been given therein. Respondent No. 1, plaintiff has also claimed in the plaint that the possession of the land was delivered to him on 2.7.80, when the appellant-defendant no. 1 had received a further sum of Rs. 5700/- as earnest money against a writing. He while appearing as PW. 6, has also given the boundaries of the suit land. He has, further stated that this land is owned by appellant-defendant No. 1 and is in his exclusive possession. He has still further stated that he has been in possession of this land since the payment of Rs. 5700/- vide writing Ex. P.2. During cross-examination he has stated that the land measuring 13 bighas comes to the share of Hari Singh appellant-defendant No. 1, out of the joint land and out of this 13 bighas of land, land measuring 11 bighas was agreed to be sold to him by Hari Singh appellant-defendant No. 1, vide agreement to sell Ex. P.1. No suggestion was put to him during his cross-examination that the suit land does not have the boundaries, as mentioned in the agreement to sell Ex. P1 or as to which other land bearing which Khasra nos. has boundaries, as mentioned in the agreement to sell Ex. P.1. It was also not suggested to respondent No. 1, plaintiff in his cross-examination that the suit land was not in possession of the appellant-defendant No. 1, Hari Singh appellant-defendant No. 1 while appearing as DW. 1, has not stated in his examination-in-chief that the suit land does not bear the boundaries, as mentioned in the agreement to sell Ex. P1 or is some other land. He has also not stated that the possession of the suit land was not delivered to respondent No. 1, plaintiff, as claimed by him. On the other hand, he has stated that the suit land is joint and is jointly cultivated. However, he is falsified by the revenue record, produced on the file. The suit land is shown to be in possession of Hari Singh, appellant-defendant No. 1, exclusively in the copies of the khasra girdawaris, Ex. P.10 and P.11, upto the year 1980. While thereafter it is shown in possession of Mastan Singh respondent No. 1, plaintiff, as is the case of respondent no. 1, plaintiff Hari Singh-appellant defendant, while appearing as DW-1, has also admitted in his cross-examination that their joint khasra measures 60 bighas and his share comes to 15 bighas and that the land measuring 15 bighas is in his exclusive possession. He also could not tell the boundaries of the suit land and furnished a very flimsy explanation to the effect that he is not in a position to tell the boundaries, as it is a joint land. In fact, he is also shown to be in exclusive possession of this land in the copies of the jamabandies produced on the file. The only conclusion that can be arrived at from all this, is that it is the suit land, which was agreed to be sold by appellant-defendant no. 1 to respondent no. 1-plaintiff on the basis of the agreement to sell, Ex. P.1. The agreement to sell, therefore, cannot be taken as in-definite or vague and nor it can be said that it is in-capable of execution on any such ground. Under the circumstance, it has been rightly held by the learned trial Court under issue No. 6, that respondent No. 1, plaintiff is entitled to the specific performance of the agreement to sell dated 28.4.80. The finding of the learned trial court on issue No. 6, is also, therefore affirmed."

Still not satisfied, defendant No. 1 has filed the instant appeal challenging the judgments and decrees of the Courts below.

At the outset, it may be noticed that the following substantial questions of law are framed with the help of counsel for the parties:

"(i) Whether the findings of the Courts below are perverse?

(ii) Whether the discretion exercised by the Courts below u/s 20 of the Specific Relief Act while granting the decree for specific performance of the agreement to sell in question is justified?"

Learned counsel for the appellant has vehemently argued that the impugned judgments and decrees of the Courts below are result of misreading of the evidence on record which has resulted into perversity of its findings. According to the counsel for the appellant, the defendant-appellant has clearly denied the execution of agreement to sell in question and the Courts below have wrongly observed that he is not trustworthy and the reasoning given by the Courts below in this regard is not tenable. According to the counsel for the appellant, the Courts below have further erred at law while granting specific performance of the agreement to sell in question and while doing so both the Courts below u/s 20 of the Specific Relief Act illegally exercised their discretion.

However, learned counsel for respondent No. 1 has supported the findings of the Courts below and has further argued that execution of agreement to sell in question has been duly proved from the statements of scribe as well as attesting witnesses and even passing of consideration has been proved from the statements of PW-4 and PW-5 and in these circumstances, it cannot be said that the decree for specific performance was wrongly granted.

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

Both the Courts below on the basis of evidence produced on record by the plaintiff-respondent have concurrently recorded a finding with regard to execution of the agreement to sell in question and passing of consideration in favour of the defendant-appellant. In fact by examining the scribe and attesting witnesses of the agreement to sell in question and further the witnesses, who have deposed with regard to passing of consideration, the plaintiff-respondent successfully discharged his burden to prove the execution of the agreement to sell in question. In these circumstances, it was for the appellant to rebut the aforesaid execution by producing on record his evidence in support of his plea of total denial. No evidence has been produced by the appellant to support his plea of denial of signatures on the agreement to sell in question. It was for the appellant to prove the fact that the signatures on the agreement to sell in question were not his signatures. Admittedly, except his bald statement, no further evidence was brought by him in this Court. Not only this, before framing the issues, the appellant deposed before the trial Court that he does not know how to sign. The aforesaid statement was incorrect therefore, the trial Court rightly observed that the appellant is not trustworthy.

In view thereof, it cannot be said that the findings of the Courts below are perverse in any manner. There is ample evidence on record to support the findings of the Courts below.

So far as the argument of the counsel for the appellant with regard to grant of possession by way of specific performance of the agreement to sell is concerned, the same is rejected as nothing has been shown before this Court that the discretion exercised by the Courts below was discriminatory and arbitrary in any manner.

In view thereof, no substantial question of law arises in this appeal.

Faced with this situation, counsel for the appellant has submitted that the appellant''s appeal is pending since the year 1986 and the appellant is entitled to at least the market value and some compensation on this account as the market price of the property has gone up many times.

Again the argument raised is without any merit. However, counsel for the respondents has submitted before this Court that the decree in question stands fully executed vide order dated 21.11.1987 by the Executing Court.

In view thereof, even the aforesaid argument raised on behalf of the appellant cannot be accepted at this stage.

Dismissed.