Harnek Singh vs Gurmail Singh

L.N. Mittal, J.

C.M. No. 11340-C of 2012 :

For reasons mentioned in the application, which is accompanied by affidavit, delay of 12 days in filing the appeal is condoned. The application stands allowed accordingly.

Main Appeal :

Defendant Harnek Singh, having lost in both the courts below, has filed this second appeal.

Respondent-plaintiff Gurmail Singh filed suit against defendant-appellant for specific performance of the agreement to sell dated 15.01.2007, alleging that the defendant agreed to sell the suit land measuring 05 kanals 05 marlas to the plaintiff for Rs. 3,78,000/- and received Rs. 3,00,000/- as earnest money and executed the aforesaid agreement. The plaintiff has always been ready and willing to perform his part of the contract, but the defendant committed breach thereof, necessitating the filing of the instant suit. The plaintiff also claimed permanent injunction and alternative relief of recovery of Rs. 6,00,000/-.

The defendant broadly denied the plaint averments. The defendant denied having agreed to sell the suit land to the plaintiff or having received any earnest money or having executed the impugned agreement. The defendant alleged that the plaintiff and his brother Mr. Gurtek Singh Jatana, Advocate had given some land to the defendant for cultivation and in the garb of settling the account of cotton crop thereof, they got thumb impressions of the defendant on the impugned agreement. After the defendant was made to purchase stamp papers for the same, the defendant thumb marked the agreement as a writing to clear the aforesaid account of cotton crop. The agreement was thus obtained by fraud. It was also pleaded that market value of the suit land was Rs. 8,00,000/- per kanal. Various other pleas were also raised.

Both the courts below have decreed the suit of the plaintiff. Feeling aggrieved, instant second appeal has been filed by the defendant.

I have heard counsel for the appellant and perused the case file.

The plaintiff, in order to prove his case, himself stepped into the witness-box. He has also examined his brother Mr. Gurtek Singh Jatana, Advocate, who had drafted the agreement. Plaintiff has also examined Roop Singh-an attesting witness of the agreement. All of them have broadly stated according to the plaintiff''s version. On the other hand, there is self serving bald and oral solitary testimony of the defendant as DW-1, who deposed according to his version.

The plaintiff has led cogent evidence to prove execution of the agreement by the defendant. The agreement was drafted by plaintiff''s brother, who has proved the same. Attesting witness of the agreement has also proved it. Their statements are further corroborated by testimony of the plaintiff. As against it, there is solitary bald and oral testimony of the defendant himself, which is not sufficient to rebut the cogent evidence of the plaintiff.

It is worth mentioning that the defendant has raised the plea of fraud. The same had to be proved by him beyond reasonable doubt just like a criminal charge. However, the defendant has miserably failed to prove the same. What to talk of proving it beyond reasonable doubt, the defendant has even failed to prove it by preponderance of evidence.

It would not be out of place to notice that the defendant has himself admitted in the written statement itself that he purchased the stamp papers for the impugned agreement and he also thumb marked the impugned agreement. He has also not pleaded that he thumb marked blank stamp papers. He thumb marked the agreement after it had been written. Defendant''s plea that he purchased the stamp papers for a writing for clearing the cotton crop account and signed the agreement as writing for clearing the cotton crop account is completely untenable, having not been substantiated by any cogent evidence. Even otherwise, as per practice in this area, no such writing is executed on stamp papers for clearing crop account of a tenant or crop sharer for the crop of the land cultivated by him. It is also worth mentioning that the defendant earlier had also sold some land to the plaintiff''s brother Mr. Gurtek Singh Jatana, Advocate 8-10 years ago. Thus, the defendant was not stranger to the plaintiff and his brother.

The defendant has also not placed on record any document to depict that he had cultivated any land given to him by the plaintiff and his brother. Even no oral evidence in this regard has been led except self-serving testimony of the defendant himself.

Counsel for the appellant contended that the plaintiff had allegedly informed the defendant two days in advance for execution of the sale deed on 15.05.2008-the date stipulated in the agreement for sale deed, but in cross-examination, the plaintiff stated that he did not know the location of the house of the defendant. However, this circumstance does not falsify the assertion of the plaintiff because the plaintiff could communicate with the defendant at some other place and not necessarily at his house and also could communicate with the defendant on telephone.

Counsel for the appellant also contended that the defendant had no sources of money. The contention cannot be accepted. Recital of payment of Rs. 3,00,000/- is mentioned in the agreement and has also been stated by the plaintiff and his witnesses. There is not even a plea by the defendant that plaintiff had no sources to pay the said earnest money. On the contrary, if the plaintiff and his brother could allegedly give their land to the defendant for cultivation, it would depict that plaintiff is a man of resources. Counsel for the appellant also contended that market value of the land was Rs. 8,00,000/- per kanal. However, there is practically no evidence in this regard. No sale instance has been produced in evidence in support of this version. There is also no oral evidence to this effect except oral testimony of the defendant himself.

Counsel for the appellant also pointed out some contradictions in the statements of plaintiff and his witnesses regarding time of execution of agreement. Obviously, said contradictions cannot be taken note of when the witnesses depose after expiry of long period. Moreover, execution of the document by the defendant, although as a different document, has been admitted. Consequently, the alleged contradiction is natural due to lapse of period and different memory of different persons. There is concurrent finding recorded by both the courts below to decree the suit of the plaintiff. The said finding is fully justified by the evidence on record and is supported by cogent reasons recorded by the courts below. The said finding is not shown to be perverse or illegal or based on misreading or misappreciation of evidence. Consequently, there is no ground to interfere with the said finding. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal lacks any merit and is accordingly dismissed in limine.