Jarnail Singh vs Gurcharan Singh

L.N. Mittal, J.—Defendant-Jarnail Singh having lost in both the Courts below has filed this second appeal. Suit filed by respondent-plaintiff

Gurcharan Singh for possession of suit property by specific performance of agreement to sell dated 12.12.2001 has been decreed by both the

Courts below.

Plaintiff alleged that defendant agreed to sell suit land measuring 9 kanals 9 marlas to the plaintiff for Rs. 2,95,312.50 and received Rs.

2,10,000/- as earnest money and executed the aforesaid agreement. Sale deed was to be executed up to 05.08.2002. The plaintiff always

remained ready and willing to perform his part of the contract but the defendant committed breach thereof, necessitating the filing of the suit.

The defendant broadly denied the plaint averments. He denied having agreed to sell the suit land to the plaintiff or having received earnest money

or having executed the alleged agreement. The defendant pleaded that he had approached the plaintiff to arrange loan for the defendant from land

mortgage bank and in its garb, the plaintiff by fraud obtained signatures of defendant on alleged agreement.

Learned Additional Civil Judge (Senior Division), Kurukshetra vide judgment and decree dated 06.03.2009 decreed the plaintiff''s suit. First

appeal preferred by defendant has been dismissed by learned Additional District Judge, Kurukshetra vide judgment and decree dated 09.05.2011.

Feeling aggrieved, defendant has filed this second appeal.

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

In order to prove his case, the plaintiff has examined Raju PW-1 attesting witness of the agreement, besides himself appearing in the witness

box. The plaintiff has also examined Mr. R. N. Kaushal, Advocate (Notary) PW-4 who had attested the aforesaid agreement. All of them have

broadly stated according to plaintiff''s version. The plaintiff also examined Diwakar Kaushik, Clerk PW-5 from the office of Sub-Registrar. He

proved application moved by the plaintiff on 05.08.2002 regarding his presence to get the sale deed executed, along with endorsement of the Sub-

Registrar thereon.

On the other hand, defendant himself appeared as DW-1 and broadly stated according to his version.

The plaintiff has led cogent evidence to prove his case. Plaintiff''s testimony is corroborated by an attesting witness of the agreement as well as

by the Notary who also attested the agreement. The said cogent evidence of the plaintiff is not rebutted by sole self-serving bald and oral statement

of the defendant. On the other hand, the defendant has taken the plea of fraud. However, fraud, even in civil cases, has to be proved beyond

reasonable doubt like criminal charge. The defendant has miserably failed to establish his version of alleged fraud. On the other hand, fraud is

reasonably ruled out from the testimony of Mr. R. N. Kaushal, Advocate who as Notary attested the agreement. There is no reason why Mr. R.

N. Kaushal, Advocate collude with the plaintiff to play fraud on the defendant and obtain his signatures on the impugned agreement. On the other

hand, the defendant by his plea in the written statement that his signatures were obtained on the alleged agreement by the plaintiff by fraud has

himself admitted his signatures on the impugned agreement, thereby further strengthening the case of the plaintiff.

The defendant alleged that he had approached the plaintiff to arrange loan for him (defendant) from land mortgage bank. The suit was filed more

than three and half years after the execution of the agreement. There is no evidence on record to depict that the defendant took any step regarding

taking of loan from land mortgage bank. Counsel for the appellant contended that defendant-appellant has instituted criminal complaint Exhibit D-1

wherein bank Clerk was examined to depict that defendant had taken loan from the bank. However, no such evidence has been led in the instant

suit. There is also nothing on record to depict that bank Clerk was examined in the criminal complaint and if so, what statement was made by him.

Even otherwise, if bank Clerk was examined in preliminary evidence in complaint, the same cannot be read as evidence in the instant suit. On the

contrary, said evidence should have been led in the instant suit and any such evidence led in the criminal complaint cannot be automatically read in

the instant suit. The defendant has, however, not led any such evidence in the instant case. Thus the plea of defendant that his signatures were

obtained by fraud on the pretext of arranging loan for him from land mortgage bank, cannot be accepted.

It is also worth mentioning that defendant executed three sale deeds in favour of plaintiff''s wife and one of the said sale deeds is dated

12.12.2001, the date of the impugned agreement. Counsel for the appellant submitted that defendant has filed three suits to challenge the said three

sale deeds and out of them, two suits are still pending in the trial Court whereas in the third suit, regular second appeal is pending in this Court.

However, this contention is beyond pleadings and evidence and, therefore, cannot be accepted. On the contrary, execution of three sale deeds by

the defendant in favour of plaintiff''s wife including one sale deed dated 12.12.2001 (on the date of impugned agreement) further reasonably rules

out defendant''s plea of fraud.

Counsel for the appellant also contended that the defendant appellant had moved application in the lower Appellate Court for additional

evidence to get his alleged signatures on the impugned agreement compared with his admitted/standard signatures on sale deed but the said

application remained undecided by the lower Appellate Court. The contention, although attractive, does not come to the rescue of the appellant.

As noticed hereinbefore, the defendant in his written statement has admitted his signatures on the impugned agreement although allegedly obtained

by fraud. Consequently, question of comparing the said signatures of defendant on the agreement with his admitted or standard signatures on a sale

deed to depict that the impugned agreement does not bear signatures of the defendant, did not arise when signatures on the agreement stand

admitted in the written statement itself. Consequently, even if the said application was not decided by the lower Appellate Court, it did not cause

any prejudice to the defendant-appellant. On the other hand, the said application is completely misconceived and merit-less and is liable to be

dismissed.

Counsel for the appellant also contended that the impugned agreement does not bear signatures of the plaintiff. However, it does not invalidate

the agreement because the plaintiff has not disowned the agreement. The plaintiff rather remained present in the office of Sub-Registrar on

05.08.2002 to get the sale deed executed in terms of the agreement but the defendant did not turn up. The plaintiff has also filed this suit seeking

specific performance of the agreement. Thus the plaintiff is owning the agreement, which is in his favour whereas execution of the agreement by

defendant has been duly proved by the plaintiff by leading cogent evidence. For the reasons aforesaid, I find no merit in this second appeal.

Concurrent finding recorded by both the Courts below to decree the suit of the plaintiff is fully justified by the evidence on record. The said finding

is not shown to be perverse or illegal or based on misreading or misappreciation of evidence so as to call for interference. No question of law,

much less substantial question of law, arises for adjudication in this second appeal. Accordingly the appeal is dismissed in limine.