Kaka Singh and others vs Gurcharan Singh and others

J.V. Gupta, J.—The is plaintiffs'' first appeal against the judgment and decree of the trial Court, dated 14th June, 1973, whereby their suit for specific performance was dismissed.

The plaintiff appellants filed the suit for specific performance of the agreement dated 30th April, 1968 (Exhibit P1) alleging that the defendant Gurcharan Singh agreed to sell his land measuring about 80 Kanals details of which are giving in the head-note of the plaint to the plaintiffs for a sum of Rs. 23000/- and executed an agreement dated 30th April, 1968 (Exhibit P-1) in that behalf and received Rs. 10,000/- as earnest money. It was further alleged that the plaintiffs and defendant No. 1 also agreed that he would execute a sale-deed in respect of the suit land by 15th June, 1996 and will receive the remaining amount of Rs. 13000/- at that time. The plaintiffs asked defendant No. 1 to execute the sale-deed, as agreed, on receipt of Rs. 13000/- but he did not do so. A notice in that behalf was also sent through post but he did not receive the same. The plaintiffs further averred that they were in possession of 3/4th share of the suit land as tenant "Gair Msurushi" even before the execution of the above said agreement Since the defendant failed to perform his part of the contract the plaintiffs are entitled to a decree for specific performance of contract, and, in the alternative, they are entitled to the recovery of Rs. 2000/- as compensation and Rs. 10000/-, the earnest money already paid to the defendant. It was also alleged that, after of the contract, the alternative, they are entitled to the money already paid to the defendant. It was also alleged that, after the agreement, the vendor-defendant gifted away his entire property including the suit property in favour of Gurdev Kaur, defendant No. 2, but possession of the same had not been transferred to her and the plaintiffs are still in possession of the suit land and, therefore, the plaintiffs are not bound by the abovesaid gift and are entitled to a decree as prayed for.

Firstly, the plaintiffs filed suit only against Gurcharan Singh defendant and on notice to him, he filed his written statement wherein, he, besides refuting the claim of the plaintiffs, alleged inter alia that the suit of the plaintiffs is bad for nonjoinder of parties as they had not impleaded Gurdev Kaur, wife of Gurcharan Singh defendant, in the case. The vendor defendant pleaded his denial with respect to the execution of the agreement as alleged by the plaintiffs.

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

Whether the defendant executed agreement dated 30th April, 1968 for consideration ?

2 Whether the suit is bad for non joinder of Gurdev Kaur ?

If issue No. 1 is proved, whether defendant failed to perform his part of the agreement ?

Relief

An additional issue was also framed on 30th December, 1970, which is to the following effect:--

3A. What is the effect of the gift in favour of Gurdev Kaur?

Under issue No. 1, which is the only material issue in the case, the trial Court found that the plaintiffs had failed to prove on the record the execution of agreement Exhibit P-1 for consideration, by Gurcharan Singh defendant. Issue No 7 became redundent, for later on, Gurdev Kaur was impleaded as defendant No. 2 in the amended plaint. Under issue No 3 the trial Court found that this issue has become infructuous as issue No 1 had not been proved. But, if issue No. 1 is proved, then it is clearly found that the defendant has failed to perform his part of the contract as in cross-examination be has clearly stated that it is correct that it was told by Gurdev Kaur defendant to him that lest entire laud is taken, he should execute gift-deed in her favour and he did accordingly, and that the plaintiffs used to ask him for Rs. 1000/- But he had been telling them that he neither executed any document nor did he receive any amount. Under additional issue No 3 A, it was conceded by the learned counsel for the defendants that, in case it is proved that defendant No. 1 executed agreement Exhibit P-1 for consideration of Rs. 10000/-, then the defendant was bound to execute the sale deed in respect of the suit land in favour of the plaintiffs Consequently, in view of the finding under issue No. 1, the plaintiffs'' suit was dismissed. Dissatisfied with the same, the plaintiffs have filed this appeal in this Court.

The learned counsel for the appellants contended that from the testimony of Kundha Singh P.W. 1 who is the attesting witness of the agreement Exhibit P-1; Umri Ram P.W. 2 stamp-vendor; K.C. Jaidka P. W. 4 Document and Finger-print and plaintiff Kaka Singh P. W. 5, it has been amply proved on the record that defendant No. 1 had executed the agreement Exhibit P-1 in favour of the plaintiffs. The approach of the trial Court in this respect, according to the learned counsel, is wrong and illegal, and is not warranted from the evidence on the record.

I have heard the learned counsel for the parties and have also gone through the evidence on the record. After going through the same, I am of the considered opinion that the approach of the trial Court in this respect is wholly wrong and illegal. The execution of the agreement dated 30-4-1968 Exhibit P.1 has been duly proved by the plaintiffs by the testimony of Kundha Singh PW1, attesting witness, Umri Ram PW2, the statement of Kaka Singh plaintiff PW5 as well as by the Finger print Expert K.C. Jaidka PW4. In rebuttal, only defendant Gurcharan Singh had appeared as DW6. The considerations which have weighed with the trial Court in rejecting the testimony of Kundha Singh PW1 and Umri Ram stamp-vendor PW2 as well as of the plaintiff Kaka Singh PW5, are wholly irrelevant and are based on surmises and conjectures Of course, Kundha Singh PW1 did state that the agreement Exhibit P.1 was executed by Sukhdev Singh but, at the same time, it has been amply proved on the record that defendant Gurcharan Singh was also known as Sukhdev Singh. Moreover when he said ''Sukhdev Singh'', he also mentioned his father''s name as Ishar Singh thus, there was no ambiguity in that respect Moreover, no question was put to him in his cross examination that Sukhdev Singh is a different person. The other consideration which weighed with the trial Court was that the area mentioned in the agreement Exhibit P-1 does not tally with the area as given in the Jamabandi Exhibit PA. As a matter of fact, this was never the plea taken by the defendant in the written statement and, therefore, he could not be allowed to agitate the same in the trial Court In any case, the Khasra numbers given in the agreement Exhibit P-1 do tally with those given in the Jamabandi Exhibit PA. It has been held in Dattatraya Vs. Rangnath Gopalrao Kawathekar (Dead) by his legal representatives and Others, , that ordinarily nobody signs a document without knowing its contents However, if the person signing the document pleads ignorance, then, in certain circumstances, it may be necessary for the party seeking to prove the document to satisfy the Court that the executant had knowledge of its contents. It has been held in Bhupal and Others Vs. Mam Chand and Others, (while placing reliance on Kalyanpur Lime Workers Ltd. Vs. State of Bihar and Another, (therein) that defendant merely denying factum of contract is precluded from raising its legality or validity. In the present case, as stated earlier, the defendant totally denied the execution of the agreement. Once the execution of the agreement is proved, then the burden shifts on the defendant to disprove its legality or validity. It has also been observed by the trial Court that in the agreement Exhibit P-1, the vendor Gurcharan Singh has described himself to be the sole owner of the land mentioned therein whereas he was a co-sharer along with his brother and, therefore, according to the trial Court, the document Exhibit P-1 was not executed by Gurcharan Singh defendant, otherwise he would have imparted true state of affairs to the acribe and to the parties. It was based on surmises and conjectures. No such plea was ever taken by the defendant in the written statement and therefore, he could not be allowed to travel beyond his pleadings.

An argument was also raised on behalf of the defendant-respondent that the document Exhibit P-1 was suspicious one as the area mentioned there in did not tally with the area as given in the Jamabandi. However, I do not find any force in this contention. It has already been stated earlier that Khasra numbers given in the agreement Exhibit P1 are mentioned in the Jamabandi Exhibit PA. Thus, there was no ambiguity or any vagueness as to the land to be transferred to the plaintiffs, vide Exhibit P1. Thus, the plaintiffs-appellants have been able to prove the execution of the document Exhibit P1, and the finding of the trial Court in this respect is reversed.

No other issue arises because all other issues have been decided in favour of the plaintiffs-appellants and the findings of the trial Court on those issues have not been challenged by the defendants-respondents in this appeal.

For the foregoing reasons, this appeal succeeds and the same is allowed with costs. The judgment and decree of the trial Court is set aside and the plaintiffs'' suit is decreed for specific performance of the contract on payment of Rs. 13000/- The plaintiffs will deposit this amount of Rs. 13000/- with the trial Court within three months. On deposit of the same, the defendant No. 1, Gurcharan Singh, will execute the sale deed in favour of the plaintiffs-appellants, failing which the Court will execute the same on behalf of the defendant. All the charges shall be borne by the plaintiffs.