Jagdish vs Rajbir

L.N. Mittal, J.

C.M. No. 11797-C of 2010:

For reasons mentioned in the application, which is accompanied by affidavit, delay of 22 days in filing the appeal is condoned.

Main Appeal:

Defendant Jagdish has filed the instant second appeal having failed in both the courts below.

Respondent-Plaintiff Rajbir filed suit against the Defendant-Appellant for possession of the suit property by specific performance of the agreement to sell alleging that the Defendant agreed to sell the suit land to the Plaintiff for Rs. 3,20,000/- and executed agreement dated 29.09.2004. The entire sale consideration was paid by the Plaintiff in bank on behalf of Defendant to clear the bank loan taken by the Defendant. Sale deed was to be executed up to 12.10.2004. Accordingly, on 12.10.2004, the Plaintiff went to the office of Sub Registrar to get the sale deed executed and registered, but the Defendant did not turn up. The Defendant thus committed breach of agreement.

The Defendant denied the plaint allegations and pleaded that he is still owner in possession of the suit land. The Defendant denied having executed the impugned agreement. The Defendant also denied receipt of any money by him from the Plaintiff. It was also pleaded that the impugned agreement was forged and fabricated. The Defendant had affixed his signatures on some blank papers at the instance of the Plaintiff for completion of some formalities in the bank and the Plaintiff has fabricated the agreement. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Bahadurgarh, vide judgment and decree dated 19.11.2007, decreed the Plaintiff''s suit. First appeal preferred by the Defendant has been dismissed by learned District Judge, Jhajjar, vide judgment and decree dated 31.05.2010. Feeling aggrieved, Defendant has preferred the instant second appeal.

I have heard learned Counsel for the Appellant and perused the case file.

Plaintiff has examined Ranbir Singh (PW-3) and Rohtash Singh (PW-4), who are both attesting witnesses of the impugned agreement. They have supported the Plaintiff''s case. The Plaintiff himself also stepped into the witness box as PW-2 and supported his own version. The Plaintiff has also examined Mahender Singh - Field Officer of State Bank of India as PW-1. He has stated that outstanding amount of Rs. 3,20,000/- due from the Defendant was paid to this witness by the Plaintiff on behalf of the Defendant on 29.09.2004.

On the other hand, the Defendant himself appeared as DW-1 and supported his own version. The Defendant has examined his maternal uncle Mange Ram (DW-2), who stated that the Defendant had taken Rs. 2,50,000/- from him for payment in the bank.

Plaintiff has led sufficient evidence to prove his case. The Plaintiff has examined two attesting witnesses of the agreement, besides himself stating about the execution of the agreement by the Defendant. The Plaintiff has also led evidence to depict that he had paid entire sale consideration of Rs. 3,20,000/-. The amount was paid by the Plaintiff on behalf of the Defendant to the bank officer Mahender Singh (PW-1). There is no reason why Mahender Singh (PW-1) would depose falsely in favour of the Plaintiff. Self-serving oral statement of Defendant is not sufficient to rebut the cogent evidence of the Plaintiff. Payment of Rs. 3,20,000/- by the Plaintiff also stands fully established.

The Defendant has come out with the version that he had taken the Plaintiff with him to the bank for completion of formalities for repayment of loan amount. However, this version is intrinsically and inherently unbelievable and unreliable. The Defendant has studied up to 3rd or 4th standard and knows how to affix his signatures. The Defendant has not stated that he had taken anybody with him while taking loan from the bank. Consequently, there was no occasion for the Defendant to take the Plaintiff with him for repayment of loan in the bank. Moreover, while repaying the loan, the Defendant would not have affixed his signatures on blank stamp paper as sought to be asserted by the Defendant. On the other hand, Defendant has admitted his signatures on the impugned agreement and this circumstance further corroborates the Plaintiff''s version.

Bank loan clearance certificate Ex.P-1 and bank receipt Ex.P-2 regarding payment of the amount in question were also in the custody of the Plaintiff. It also depicts that the Plaintiff paid the loan amount to the bank on behalf of the Defendant. There is otherwise no reason why the said documents would have been in custody of the Plaintiff and not in the custody of the Defendant.

There is another significant circumstance going against the Defendant-Appellant. Phool Chand is also attesting witness of the agreement. Defendant admitted that Phool Chand is real uncle of the Defendant. In spite thereof, Defendant has not examined Phool Chand as witness. Consequently, very strong adverse presumption arises against the Defendant.

Statement of Mange Ram (DW-2) has no probative value because it was not even pleaded by the Defendant that he had taken amount of Rs. 2,50,000/- from Mange Ram for repayment of loan in the bank. Defendant has pleaded fraud, but except his bald self-serving statement, there is no evidence to prove the alleged fraud. Even material particulars of the fraud have not been pleaded.

Learned Counsel for the Appellant contended that there are cuttings and alterations in the impugned agreement. However, perusal of the coloured photostat copy of the impugned agreement, as shown by counsel for the Appellant, reveals that there is no cutting or alteration regarding any material term of the agreement. On the other hand, innocuous word written on one place has been scored.

Learned Counsel for the Appellant also contended that Mahender Singh (PW-1) has not stated anything about the agreement although the agreement was allegedly executed in his presence. However, Mahender Singh had not signed the agreement and therefore, it was not asked from him in his examination-in-chief about the execution of the agreement. Mere silence of Mahender Singh in this regard is not sufficient to discard the Plaintiff''s case. This witness has also not stated that the agreement was not executed in his presence.

Both the courts below, after appreciation of evidence, have come to concurrent finding against the Defendant-Appellant. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in second appeal. Lower appellate court is the final court of fact. Decision of the case rests on finding of fact. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is found to be bereft of any merit and is accordingly dismissed in limine.