Imrat Khan vs Iqbal Kor

Atul Kumar Jain, J.—In this civil first appeal, judgment dated 1.12.2014 passed by Addl. District Judge No. 3, Alwar in Civil Suit No. 176/2011 titled as Iqbal Kor v. Imrat Khan is under challenge. Execution of the agreement to sell was challenged by the alleged executant in the court below and hand writing expert was examined on behalf of both the parties. Appellant has relied upon following ruling of the Apex Court in his arguments Garre Mallikharjuna Rao (D) by L.Rs. and Others Vs. Nalabothu Punniah, (2013) 4 AD 241 : (2013) 9 JT 341 : (2013) 2 RCR(Civil) 529 : (2013) 3 SCALE 344 : (2013) 4 SCC 546 : (2013) AIRSCW 2594 . In this case, the Apex Court has held that courts should be slow to base its findings solely on comparison made by it. In this case, it was further held that the relief should not be granted on shaky evidence. If evidence as to genuineness of agreement to sell was shaky and not reliable then no relief should be granted on the basis of such shaky evidence. It was held by the Apex Court that the judgment and order of the trial court was based on proper appreciation of the evidence and the High Court erred in relying upon untrustworthy shaky and vague evidence to grant discretionary relief of specific performance in contravention of Section 20 of the Specific Relief Act, 1963. In view of the above, the appeal was allowed by the Apex Court and the judgment of the High Court was set aside by the Apex Court.

Respondent has relied upon the following rulings:--

"(1) Gouni Satya Reddi Vs. Govt. of Andhra Pradesh and Others, AIR 2004 SC 3661 : (2004) 5 SCALE 740 : (2004) 7 SCC 398 : (2004) 2 SCR 484 Supp : (2004) AIRSCW 3520 : (2004) 4 Supreme 364 . In this case, it was held by the Apex Court that if the party has used alphabets instead of full name in his signature then it will be no ground to suspect the genuineness of the signature.

(2) Vishnu @ Undrya Vs. State of Maharashtra, AIR 2006 SC 508 : (2005) CriLJ 303 : (2005) 10 JT 174 : (2006) 1 SCC 283 : (2006) 1 UJ 130 : (2005) AIRSCW 6149 : (2005) 8 Supreme 165 . In this case, it was held that expert opinion is generally of advisory character and not binding on witness of fact.

(3) Ishwari Prasad Mishra Vs. Mohammad Isa, AIR 1963 SC 1728 : (1963) 3 SCR 722 . In this case, it was held that evidence given by experts of hand writing can never be conclusive, because it is, after all, opinion evidence."

We have gone through the law propounded by the aforesaid rulings. It has been submitted by the appellant that the respondent-defendant had filed a suit for specific performance of contract and for permanent injunction against the appellant and it was mentioned in the plaint that the appellant and his brother Paltu Khan executed an agreement to sell dated 25.5.2005 and the sale amount was Rs. 3,72,000/- in which Rs. 15,000/- was paid in advance to both, appellant and his brother and both of them signed the agreement to sell, in presence of witnesses and Notary Public and both agreed to execute the registered sale deed upto 15.5.2006. It was mentioned in the plaint that brother of appellant (Paltu Khan) executed registered sale deed of his 1/3rd share of the property on 3.5.2006, but the appellant did not execute registered sale deed in favour of the respondent. It was further mentioned in the plaint that the appellant finally refused on 20.7.2007 and after his refusal the respondent filed the suit for specific performance of agreement to sell with the relief of permanent injunction.

Appellant submitted his written statement in which he totally denied the execution of agreement to sell and denied receiving any payment.

After hearing both the parties, the court below decreed the suit of respondent and ordered the appellant to execute registered sale deed in favour of respondent within two months from the date of decree i.e. 1.12.2014 and it was also ordered that in case of default by the appellant, the respondent may apply for execution of registered sale deed through the court.

Appellant submitted that agreement to sell is a forged document because the agreement is alleged to have been written on 25.5.2005 while it has been allegedly attested by the Notary after a long interval i.e. on 22.6.2006. It is also clear that Notary has not been examined nor the register maintained by the Notary has been produced. It has also been submitted on behalf of appellant that the alleged document was never duly attested by the Notary. It has further been submitted by the appellant that the respondent has produced the report of hand writing expert also. On the other hand, appellant had examined hand writing expert Ramesh Katariya as P.W. 6 and on oath the hand writing expert says that two reports of two hand writing experts are present on record and both reports are different. In the circumstances, since Notary Public has also not come in witness box and his register has not been produced in the court so the alleged agreement to sell is quite doubtful, which should not have been relied upon by the court below and it has further been argued by the appellant that the respondent was unable to ready and willing to perform his part of the contract and, therefore, she had not filed suit in time. It has been prayed by the appellant that his appeal should be accepted and the impugned judgment of the court below should be set aside.

In the light of the arguments advanced by both the parties, if we go through the judgment impugned then we come to know that land lord defendant and his brother Paltu Khan had executed the agreement to sell for their 1/3rd share of the property each on 25.5.2005 in favour of respondent Smt. Iqbal Kor in lieu of Rs. 3,72,000/- out of which Rs. 15,000/- had been paid by the respondent to both the brothers including the appellant. It has been submitted that respondent Smt. Iqbal Kor had given a notice also through her Advocate to the appellant on 9.5.2006 but the appellant allegedly ignored the notice of the respondent and had refused to execute any sale deed in favour of the respondent. It has been alleged that the respondent had requested the appellant to execute the registered sale deed latest by 15.5.2006 and it was also submitted by the respondent that on 15.5.2006 she was present along with the remaining amount of the sale to get sale deed registered in her favour, but the appellant did not remain present before the Registrar and so the decree for specific performance was rightly passed in favour of the respondent.

Appellant-defendant had filed written statement in the court below in which it was mentioned that he had never agreed to sell his share of property along with his brother Paltu Khan. It was mentioned in the written statement that agreement to sell allegedly executed by Imrat Khan is totally bogus and false because Imrat Khan had never executed any agreement to sell for his share of property in favour of Smt. Iqbal Kor. It was further mentioned by appellant Imrat Kor that he never signs in the name of Imrat Khan so his signatures are forged one. It was further mentioned in the written statement that when he had never executed the agreement to sell in favour of Smt. Iqbal Khan then there is no question of executing the alleged registered sale deed.

In the court below Smt. Iqbal Kor had examined herself as P.W. 1 and other witnesses Babu Lal (P.W. 2), Subhash Chandra Sharma (P.W. 3), Murari (P.W. 4), Balbir Singh (P.W. 5), Akshay Jain (P.W. 6) and Naresh Katariya (P.W. 7) were examined in support of her case and got exhibited agreement to sell (Ex. 1), Notice (Ex. 2), Post Office receipt (Ex. 3), Attendance Fees Certificate (Ex. 4), Zamabandi (Ex. 5), certified copy of registry (Ex. 6), photo copy of register (Ex. 7a), Photo copy of loan application (Ex. 8a), photo copy of certificate (Ex. 9), Vouchers (Ex. 10 to Ex. 13), their photos (Ex. 13 to Ex. 20), CD (Ex. 21) and report (Ex. 22).

On the other hand, defendant (appellant herein) had examined himself as D.W. 1 and his witnesses Sumer (D.W. 2), Paltu (D.W. 3), Surjan Khan (D.W. 4), Fakru (D.W. 5) and hand writing expert Raj Kumar Kshrotriya (D.W. 6) and got exhibited compared documents etc. and the hand writing expert report as Ex. A-1 to Ex. A-53 in support of his case.

Hand writing expert on behalf of the plaintiff supports the case of the plaintiff and he states that the disputed signature of defendant Imrat Khan who is real brother of Paltu Khan are genuine. While hand writing expert examined on behalf of defendant Imrat Khan states that the alleged signatures of Imrat Khan are not of Imrat Khan.

In the circumstances, this Court can not blindly rely upon the reports of the hand writing experts and it will have to seek help of other evidence also before reaching any conclusion relating to execution of the agreement to sell.

The court below was of the opinion that the agreement to sell was signed by Imrat Khan and Imrat Khan had wrongly denied execution of the said agreement to sell. P.W. 1 Smt. Iqbal Kor has stated that the agreement to sell was executed by Imrat Khan and Paltu Khan. It was also signed by witnesses Babu Lal and Balbir Singh. P.W. 2 Babu Lal also supports the statement of Smt. Iqbal Kor and he says that he had signed the agreement as a witness. He states that in his presence and also in presence of witness Balbir Singh an agreement to sell was executed for the suit property by Imrat Khan and Paltu Khan in favour of Smt. Iqbal Kor for a consideration of Rs. 3,72,000/- and out of this amount Rs. 15,000/- was collectively received by both the sellers from the purchaser Smt. Iqbal Kor. This witness could not be shattered in his cross examination. This witness appears to be reliable witness.

P.W. 5 Balvir Singh also supports the statement of Smt. Iqbal Kor. He is a graduate and he also states that in his presence the agreement to sell was executed by Imrat Khan and Paltu Khan in favour of Smt. Iqbal Kor and the consideration money was agreed as aforesaid and the advance money was also transferred in his presence by the sellers in favour of the purchaser. This witness also appears to be reliable witness and there is no reason that he should not be relied upon.

On the other hand, Imrat Khan (D.W. 1) has totally denied execution of the agreement to sell, but he also admits that Paltu was intending to sell his share of property to Smt. Iqbal Kor. He says that some times he puts his thumb impression on the documents and some times he puts his signatures on the documents. He admits that some times he puts his signature as Imrat Khan and some times he puts his signature as Imrat. He admits that he has no enmity with witnesses Babu Lal and Balbir Singh. He has been found unable to explain that if he insists that the alleged agreement to sell was forged then why he did not lodge any fir against the wrong doer.

If we read the statement of Imrat Khan from first line to last line then it can be said that he is not a reliable witness and it appears that because of the escalation in the price of land he is denying the execution of agreement to sell for obvious reasons. The trial court also has not relied upon statement of Imrat Khan in view of evidence of other witnesses on record.

P.W. 3 Subhash Chandra Sharma was examined in the court below on behalf of Smt. Iqbal Kor and he states that document (Ex. 1) was prepared on computer by himself and he further submits that both the witnesses as well as all the three executants of the document had put their signatures on the document in his presence. Register (Ex. 7a) was also proved by this witness and he states that Imrat Khan and Paltu Khan had put their signatures in the register also. Similarly, P.W. 4 Murari had also stated that stamp for the execution of the document was purchased by Imrat Khan. This witness has also not been shattered in his cross examination.

P.W. 6 Akshay Jain was Manager of the Punjab National Bank, Branch Ramgarh. He states that Smt. Iqbal Kor had applied for loan also to purchase a land on the basis of agreement to sell (Ex. 1), which was executed in her favour. He also supports the story of Iqbal Kor because out of the two sellers Paltu who was brother of Imrat Khan had executed the registered sale deed in favour of Iqbal Kor and so part payment of loan was made to Paltu and 50% of the loan amount, which was to be paid to Imrat Khan was with-held by the Bank because Imrat Khan had refused to execute the registered sale deed in favour of Iqbal Kor. Akshay Jain proves that an amount of Rs. 1,68,500/- was paid to Paltu by the Bank. No doubt Paltu has refused that any such amount was paid to him by Bank. Apparently, Paltu being brother of Imrat Khan tries to support the false case of Imrat Khan, but he has not been able to hide the truth from the court.

It is pertinent to mention here that one third share in the suit property belonged to one another brother of Paltu Khan namely Imsail. He had filed a civil suit in revenue court and he was able to get a stay in his favour. Thus, these are the admitted facts which prove malafides of Imrat Khan. It is on record that the said revenue suit was filed by Ismail only to help Imrat Khan so that he may not be compelled to execute the sale deed.

D.W. 2 Sumer, D.W. 4 Surjan Khan and D.W. 5 Fakru had also been examined by the defendant in the court below. This Court is of the opinion that these witnesses have also not been able to shatter the plaintiff''s story.

In the circumstances of the case, after appreciation of the evidence of both the parties, this Court is of the view that the plaintiff Smt. Iqbal Kor was successful in the court below to prove the execution of agreement to sell by Imrat Khan in her favour. So it can be said that Issue No. 1 was rightly decided by the court below in favour of Smt. Iqbal Kor.

Issue No. 2 was relating to readiness and willingness of the plaintiff to pay the remaining amount of purchase money and get the sale deed executed. In the circumstances of the case when the execution of the agreement to sell in favour of Smt. Iqbal Kor was totally denied by the appellant/defendant, the issue remains not much importance, but still by evidence of Smt. Iqbal Kor it has been proved that she had gone to the office of the Registrar along with the remaining purchase money and got the sale deed in her favour. A loan was also got sanctioned in her favour on an application by the Bank. In the circumstances, this issue has also allegedly been decided by the court below in favour of the plaintiff/respondent.

Burden to prove Issue No. 3 was on the appellant and the appellant did not lodge any fir. This fact also proves that the appellant is making false charge of forgery against the respondent and so this issue has also been rightly decided by the court below in favour of the respondent.

In the circumstances of the case, the judgment of the court below does not have any infirmity. There is no error of fact and law in determination of any of the issues by the court below and hence the impugned judgment dated 1.12.2014 of adj No. 3, Alwar is hereby upheld and the appeal of appellant/defendant is hereby dismissed. Stay application, if any, also stands disposed off accordingly. Copy of this order along with record be sent to the court below immediately by speed post.