Ishwar Singh and Others vs Ved Parkash

Rakesh Kumar Garg, J.—This is defendants'' second appeal challenging the judgment and decree dated 11.05.2011 of the lower appellate Court whereby appeal filed by the plaintiff-respondent against dismissal of his suit vide judgment and decree dated 17.11.2010 of the Civil Judge (Junior Division), Sonepat has been accepted and his suit for specific performance of the agreement to sell in question with a further direction to the defendant-appellants to execute the sale deed in his favour and further restraining them from alienating the suit property to anyone except the plaintiff-respondent, has been decreed. Plaintiff-respondent filed the instant suit pleading that Chander son of Bhai Ram, father of the appellants, was owner of the suit land measuring 4 Kanals 9 Marlas. He agreed to sell the suit land in favour of the plaintiff-respondent @ Rs. 6.00 lakh per acre and received Rs. 1,24,000 as earnest money and executed an agreement to sell and receipt dated 09.04.2004 in the presence of the witnesses. At that time, the land was under mortgage with one Maha Singh. The vendor had undertaken to get the land cleared from attachment and mortgage before execution of the sale deed on or before 30.04.2004. On the appointed day, the plaintiff-respondent waited for vendor Chander, but he did not turn up to perform his part of the contract, whereas the plaintiff-respondent was ready with the sufficient funds for balance sale consideration and expenses. The plaintiff-respondent approached the vendor on the next day, who disclosed him that he was unable to redeem the mortgage for want of funds; however, he assured execution of the sale deed after getting the said land redeemed.

It is further the case of the plaintiff-respondent that said Chander died on 13.06.2004 leaving behind legal heirs i.e. the defendants/appellants as also another son, namely, Prem and two daughters namely Omi Devi and Sheela Devi. Mutation of inheritance of Chander was sanctioned in favour of these six legal heirs on 22.06.2004. The plaintiff-respondent requested the defendant-appellants as well as other legal heirs to execute the sale deed in terms of the agreement dated 09.04.2004. Three legal heirs, namely, Prem Chand, Omi Devi and Sheela Devi came forward and executed the sale deed on 25.10.2004 in respect of half share of the total land measuring 4 Kanals 9 Marlas in favour of the plaintiff-respondent but the appellants did not come forward to execute the sale deed of their half share in his favour. Consequently, a legal notice dated 10.02.2005 was sent to the defendant-appellants by the plaintiff-respondent through his counsel calling upon them to execute the sale deed. Since the appellants failed to execute the sale deed, necessity arose to file the instant suit.

Appellant No. 1 filed written statement separately whereas a joint written statement was filed on behalf of appellants No. 2 and 3 raising various preliminary objections and controverting the averments made on behalf of the plaintiff-respondent. Appellant No. 1 set up a case of total denial. Execution of the sale deed as also of the receipt in question by Chander was denied. The agreement in question was alleged to be false and frivolous. However, it was conceded that the land was under mortgage. Receipt of legal notice was also denied and prayer of dismissal of the suit was made.

Appellants No. 2 and 3, in their written statement, asserted that agreement to sell in question was forged and fabricated with ulterior motive to grab the land in question. It was elaborated that the plaintiff-respondent was a Deed Writer and he prepared a forged and fabricated document by cheating their father, who was an old man of 80 years of age, in collusion with his other son Prem. It was claimed that thumb impressions of Chander were obtained on some blank papers which were later on converted into alleged agreement to sell and receipt. It was elaborated that Chander was residing with the appellants and had never come to Sonepat. It was conceded that estate of Chander was inherited by his six legal heirs including the appellants, however, it was denied that the appellants were bound by the alleged agreement to sell in question. Prayer for dismissal of the suit was made.

Plaintiff-respondent filed two sets of replications to the written statements filed, reiterating his averments made in the plaint.

On the pleadings of the parties, following issues were framed by the trial Court:

Whether the father of the defendants entered into an agreement to sell the land regarding their share for sale consideration as mentioned in the plaint and received earnest money to the tune of Rs. 1,24,000/- (The figure of Rs. 1,24,000/- has been corrected today while writing this judgment, which was earlier mentioned as Rs. 4,57,750/- )? OPP

If issue No. 1 is proved, whether the plaintiff is entitled for a decree of possession by way of specific performance? OPP

Whether the father of the defendants has entered into agreement with the plaintiff and received earnest money, if so, to what effect? OPP

Whether the plaintiff was/is still ready and willing to perform his part of the contract? OPP

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

Whether the plaintiff has no cause of action or locus standi to file the present suit? OPD

Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD

Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD

Relief.

After considering the evidence on record and hearing learned counsel for the parties, the trial Court decided issues No. 1 to 4 and 6 against the plaintiff-respondent; whereas issues No. 5, 7 and 8 were decided against the appellants. Resultantly, the suit was dismissed with no order as to costs vide judgment and decree dated 17.11.2010.

Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff-respondent preferred an appeal seeking reversal of the findings on issues No. 1 to 4 and 6 claiming that the trial Court had not appreciated the facts and the evidence led by the parties correctly. Referring to the evidence on record, it was claimed that execution of the agreement to sell and receipt in question has been fully proved and the appellants have miserably failed to prove their assertion that the documents were forged and fabricated. The lower appellate Court, after appreciating the evidence on record and considering the arguments raised, vide impugned judgment and decree dated 11.05.2011 reversed the findings of the trial Court on issues No. 1 to 4 and 6 in favour of the plaintiff-respondent and resultantly, accepted the appeal with costs decreeing the suit of the plaintiff-respondent for possession by way of specific performance of the agreement to sell dated 09.04.2004 regarding half share of the suit property, as claimed.

Challenging the aforesaid judgment and decree of the lower appellate Court, the defendants have filed the instant appeal before this Court submitting that the following substantial questions of law arise for consideration of this Court:

i) Whether the findings recorded by the learned lower appellate Court on the relevant issues, suffers from misreading and misappreciation of evidence available on record and thus, are perverse and deserves to be set aside?

ii) Whether in the absence of any valid or cogent document or evidence, the learned lower appellate Court erred on coming to conclusion that the plaintiff-respondent has been able to prove that he was willing and ready to perform his part of contract on 30.4.2004 i.e. the date fixed in the agreement to sell?

iii) Whether for an admission of a party to the suit, the said aspect is to be proved by leading evidence?

In support of his case, learned counsel for the defendant-appellants has vehemently argued that the lower appellate Court has not appreciated the evidence on record of the case in its true perspective, as it is the case of the appellants that Prem (another son of deceased Chander) had brought him to village Baiyanpur from the house of Sube Singh appellant on the pretext of his treatment, as in those days Chander used to remain ill being an old man, and had got his thumb impressions on blank documents which were later on converted into the agreement to sell and receipt in question. According to the appellants, two other daughters of Chander (since deceased), namely, Omi Devi and Sheela Devi, who had filed a suit on 12.04.2004 for permanent injunction restraining the appellant-Sube Singh and his father Chander from selling the land, were residing with Prem and the said fact has been endorsed by Chander in the Civil Suit filed by his daughters and thus, forging of the agreement to sell and receipt in question by the plaintiff-respondent in connivance with Prem stood proved. Moreover, the said agreement to sell is witnessed by Prem (another son of deceased Chander) as PW-1 and Raj Singh DW-1. It has been further argued that it is the positive case of the appellants that the agreement to sell in question is the handiwork of Prem, who is their real brother and wants to usurp the whole land. Even DW-1 Raj Singh had not supported the version of the plaintiff-respondent. Said Raj Singh is the son of Maha Singh, with whom the said piece of land was mortgaged by Chander and who is in possession, and thus, as to why such a person, with whom the land is mortgaged and has not been redeemed, would be a witness to the said agreement to sell?

Along with the instant appeal, the appellants have also moved an application viz. CM No. 9297-CII of 2011 under Order XLI Rule 27 CPC for leading additional evidence of the copy of statement of deceased Chander in Civil Suit No. 66 of 2004 titled as ''Smt. Sheela and another v. Sube Singh and another'' and order dated 26.04.2004 of the Civil Judge (Jr. Divn.), Sonepat in the said case to prove that Prem (another son of Chander) had got thumb impressions of Chander on some blank papers which were later on converted into the agreement to sell and receipt in question.

However, in the application for leading additional evidence of the aforesaid documents, the appellants have not given any reason for not producing the said documents on record during the trial, what to talk of any justification to produce the said documents at this stage. No ground has been made by the appellants to move such an application at such a belated stage.

Moreover, it is specific case of the appellants throughout that the agreement to sell in question has been forged and fabricated in connivance with Prem (another son of Chander) who had got blank papers thumb marked from Chander; yet no effort was made by the appellants to place on record these documents and confront PW-1 Prem during his cross-examination. Even if Chander, in the suit filed by his daughters restraining him from selling the land, has made a statement to the effect that he will not sell the suit land but Prem has got his thumb marks on blank papers will not ipso facto prove the contention of the appellants that the plaintiff-respondent has got prepared the documents in question on the said blank papers. There is no connecting evidence in this regard. No such suggestion has been put to PW-1 Prem (another son of Chander), who had supported the version of the plaintiff-respondent; whereas it is specific case of the defendant-appellants that the documents have been prepared by Prem to grab the suit land in connivance with the plaintiff-respondent. It was imperative on their part to put the statement of Chander to PW-1 Prem and confront him during his cross-examination. Having not done the same, proves the fallacy of the argument raised on behalf of the appellants that the documents in question are the result of fraud or fabrication. Assuming for the sake of arguments that Prem has got the blank papers thumb marked from Chander and has got converted the said documents into the agreement to sell and receipt in question for his benefit; still the appellants have failed to explain as to why their two sisters, namely, Omi Devi and Sheela Devi have executed the sale deed in favour of the plaintiff-respondent in pursuance of the agreement to sell in question. No reasoning is forthcoming as to why the aforesaid daughters of Chander will support an alleged fabricated document against their own brothers and sisters i.e. appellants. It is not the case of the appellants that even those sisters wanted to grab their property. Thus, there is no merit in the arguments raised before this Court. In fact, on the basis of the arguments raised, learned counsel for the appellants wants this Court to take a different view than the one taken by the lower appellate Court, after reappraising the evidence, which is not permissible u/s 100 CPC as it could not be pointed out that there was any misreading of evidence which has resulted into perverse findings by the lower appellate Court.

No other point has been raised.

Thus, no substantial question of law, as raised, arises in this appeal. Dismissed.