Janak Singh vs Sant Ram

Vinod K. Sharma, J.—This regular second appeal is directed against the judgment and decree dated 12.2.2009 passed by the learned Courts below vide which the suit filed by the plaintiff/respondent for possession by way of specific performance of agreement to sell, stands decreed.

The plaintiff brought a suit on the pleadings that the defendant/appellant entered into an agreement to sell dated 10.4.2001 and was paid ernest money of Rs. 70,000/-. Subsequenlty, another some of Rs. 50,000/- was paid, thus total earnest money of Rs. 1,20,000/- was paid.

April 10, 2003 was fixed as the date of execution of conveyance deed. It was the case set up by the plaintiff that on 10.4.2003, he appeared before the Sub Registrar for execution of the agreement, but defendant/appellant failed to come present.

On notice, the suit was contested by the defendant/appellant, wherein plea was taken that the defendant/appellant executed no agreement, which was said to be forged and fabricated document, drafted on blank paper, on which thumb impression of the defendant/appellant was taken when he was under the influence of liquor. Plea was also taken that, in fact, it was a transaction of loan of Rs. 55,000/-, which was agreed to be returned with interest @ Rs. 2,000/- per month, and the defendant was willing to repay the amount.

The learned Courts below on appreciation of evidence have recorded a concurrent finding of fact that agreement dated 10.4.2001 was executed by the defendant/appellant and that he received the earnest money. The learned Courts below also found that the plaintiff/respondent was willing to perfom his part of contract, and thus decreed the suit.

The learned Counsel appearing on behalf of the appellant contends that this appeal raises the following substantial questions of law:

Whether the judgments of learned Courts below are perverse?

Whether the learned Courts below have misread the pleading and evidence?

Whether it was for the plaintiff to prove the execution of agreement beyond doubt, in view of the suspicious circumstances and admission by the plaintiff that there was a dispute regarding tractor trolley and that both the parties went to police station and thereafter payment was made by the defendant?

Whether the statements of witnesses are contradictory as to the execution of the agreement?

Whether the pleadings in mofussil Courts are to be interpreted strictly?

Whether the judgment and decrees of both the Courts below are based on surmises and conjectures?

In support of the substantial questions of law, the learned counsel for the appellant contends that the judgment and decree passed by the learned Courts below is perverse, as the learned Courts below have misread the pleadings as well as the evidence on record.

Therefore, the judgment and decree deserves to be reversed. It is also the contention of the learned Counsel for the appellant that in order to succeed in suit for specific performance, it was for the plaintiff/respondent to have proved the execution of the agreement beyond any doubt, and in event of suspicious circumstances being there, it was for the plaintiff to have explained the same.

In absence of such explanation, the suit was liable to be dismissed. The learned Counsel for the appellant also contends, that the learned Courts below have misread the statements of the witnesses and ignored the contradiction therein to arrive at a conclusion that the agreement was validly executed so as to decree the suit for specific performance. The learned Counsel for the appellant also contends that the pleadings of the mofussil Courts are not to be strictly construed.

Finally, the learned Counsel for the appellant raised the contention that reading of the judgment and decree of the learned Courts below would show that it is based on surmises and conjectures.

On consideration, I find no force in the contentions raised by the learned Counsel for the appellant. The judgment and decree passed by the learned Courts below cannot be said to be perverse or outcome of misreading of evidence. The learned Courts below have appreciated the evidence and have recorded a concurrent finding of fact.

The defendant/appellant had taken different stands at different stages, thus the learned Courts below did not accept the version of appellant.

The learned Counsel for the appellant contends that the learned Courts below have ignored the statement of the plaintiff/respondent, where in cross-examination he admitted factum of dispute qua trolley, which was settled at police station. Reliance was also placed on the statement made by the plaintiff/respondent, which reads as under:

....I do not know whether Janak Singh is addicted to liquor or not. I belong to other patti. I went to police station in a dispute again said there was no dispute in which I went to the police station with defendant. I do not know if defendant made any complaint against me in the Police Station. I had gone to Police Station Panchayat was called to Police Station. I also accompanied them. Jagmal Singh Lamberdar was present in that Panchayat in the police station. That trolley belongs to defendant and I returned the same at that time. There was dispute of Rs. 21000/- which was returned by defendant. I do not remember the date when the amount was received by me. It is talk of 2-3 years. It is incorrect to suggest that I alongwith got the thumb impression of defendant on blank stamp papers when he was under the influence of liquor.

It is also the contention of the learned Counsel for the appellant, that if the evidence on record is appreciated in true prospective, it will show that the stand taken by the defendant/appellant was correct stand, as the dispute projected with regard to trolley, and the payment of Rs. 21,000/-, would correlate with the date of agreement and date of execution. It is also the contention of the learned Counsel for the appellant that the contents of agreement itself created a doubt. There was admittedly no occasion for the plaintiff to have waited for a period of two years for execution of sale deed, as the agreement to sell was executed on 10.4.2001, whereas 10.4.2003 was fixed as date for conveyance.

The learned Counsel for the appellant also contends that below the thumb impression of the defendant/appellant LTI was not mentioned nor the address of second attesting witness was given in the agreement, which creates a suspicion to execution of the agreement.

The pleas are liable to be rejected, for more than one reason. No such plea was raised either of the learned Courts below, therefore, it is not available to the defendant/appellant to raise such a plea in this appeal. Even otherwise, once due execution of the agreement has been proved by examining attesting witnesses, and the learned Courts below on appreciation of evidence have recorded a concurrent finding of fact that the defendant/appellant executed agreement and also, that the plaintiff was willing and always willing to perfom his part of contract, no fault can be found with the judgment and decree passed by the learned Courts below.

The substantial questions of law raised are thus answered against the appellant/defendant.

No merit.

Dismissed.