Krishan Kumar and another vs Sunita Devi and others

L.N. Mittal, J.

CM No. 2535.C of 2011

For the reasons mentioned in the application which is accompanied by affidavit, delay of 6 days in filing the appeal is condoned. The application stands disposed of accordingly.

RSA No. 916 of 2011

Defendants Krishan Kumar and his wife Santo having remained unsuccessful in both the courts below have filed this second appeal. Suit was filed by Balbir Singh plaintiff (since deceased and represented by respondents as his legal representatives) against the defendants/appellants for possession of the suit land measuring 10 kanals by specific performance of agreement to sell dated 7.7.2000 alleging that defendant No. 1 being owner in possession of the suit land agreed to sell the same to the plaintiff at the rate of Rs 75,000/- per acre and received Rs 85,000/- as earnest money and executed agreement dated 7.7.2000 along with acknowledgment of the earnest money on its back. Sale deed was to be executed upto 22.7.2000. However, it was holiday on 22.7.2000 as well as on 23.7.2000. Accordingly, the plaintiff went to the office of Sub Registrar on 24.7.2000 to get the sale deed executed in terms of the agreement but defendant No. 1 did not turn up and committed breach of the agreement. The plaintiff has always been ready and willing to perform his part of the contract. Plaintiff learnt in first week of September, 2000 on approaching Patwari Halqa for copy of jamabandi for taking further steps pursuant to agreement, that defendant No. 1 had executed registered release deed dated 20.7.2000 of the suit land in favour of his wife defendant No. 2. In the suit, said release deed was also challenged being not binding on the plaintiff.

The defendants in their written statement controverted the averments made by the plaintiff. Execution of impugned agreement and receipt of earnest money by defendant No. 1 was denied. It was pleaded that in family settlement, suit land had already fallen to the share of defendant No. 2 prior to the alleged agreement. It was also pleaded that the plaintiff was on visiting terms with the defendants and taking advantage of illiteracy of defendant No. 1, plaintiff obtained signatures of defendant No. 1 on some papers and procured the alleged agreement in connivance with marginal witnesses thereof. Defendant No. 1 never agreed to sell the suit land to the plaintiff nor received any amount from him. Market value of the suit land was also more than Rs 1,50,000/- per acre. Release deed by defendant No. 1 in favour of defendant No. 2 was defended. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Dabwali vide judgment and decree dated 8.9.2009 decreed the plaintiff''s suit. First appeal preferred by defendants has been dismissed by learned District Judge, Sirsa vide judgment and decree dated 15.10.2010. Feeling still dis-satisfied, defendants have filed the instant second appeal.

I have heard Learned Counsel for the appellants and perused the case file.

Plaintiff to prove his case has himself stepped into witness box and has examined scribe as well as both marginal witnesses of impugned agreement and receipt. All of them have stated according to plaintiff''s version. Their statements could not be impeached in their crossexamination.

On the other hand, defendant No. 1 appeared in the witness box and examined Ram Partap DW2 and Kuldeep Singh DW3. They broadly stated according to the version of the defendants. However, evidence of defendants is completely unreliable. In the written statement, the defendants pleaded that signatures of defendant No. 1 had been obtained on some papers by the plaintiff. By this plea, defendants impliedly admitted the signatures of defendant No. 1 on impugned agreement and receipt. However, in the witness box, defendant No. 1 denied his signatures on the said documents. The said denial was thus in contradiction to the written statement. Moreover, Ram Partap DW2 and Kuldeep Singh DW have both admitted the signatures of defendant No. 1 on impugned agreement and receipt. Thus self serving testimony of defendant No. 1 has been demolished by Ram Partap DW2 and Kuldeep Singh DW3 who are witnesses of the defendants themselves. In addition to it, Ram Partap DW2 and Kuldeep Singh DW3 stated in cross-examination that they did not know the contents of their respective affidavits of examination-in-chief. It would mean that they did not make any statement in examination-in-chief and their affidavits of examination-in-chief were procured without disclosing or explaining the contents thereof to the deponents. Self serving statement of defendant No. 1 which is also contradictory to the written statement is not sufficient to rebut the cogent and credible evidence led by the plaintiff which is further supported by Ram Partap DW2 and Kuldeep Singh DW3 witnesses of the defendants themselves.

It would also not be out of place to notice that the defendants in their written statement pleaded that the plaintiff had obtained signatures of defendant No. 1 on some papers but did not even plead as to on what pretext, the plaintiff obtained signatures of defendant No. 1 on the said papers nor pleaded any fraud.

In view of the aforesaid, concurrent finding recorded by the courts below to decree the suit of the plaintiff is found to be fully justified by the evidence on record. The said finding is not shown to be perverse or illegal or based on misreading or mis-appreciation of evidence. On the contrary, the said finding is the only reasonable finding that can be arrived at on the basis of evidence on record. Consequently, the said finding does not warrant any interference.

Counsel for the appellants contended that the suit was filed two years 10 months after the date stipulated in the agreement for execution of sale deed and therefore, instead of relief of specific performance of the agreement, alternative relief of refund of earnest money could be decreed. The contention cannot be accepted in the facts and circumstances of the instant case. Defendants'' own conduct disentitles them to raise this contention. Defendant No. 1 entered into agreement to sell the suit land to plaintiff on 7.7.2000 and out of total sale consideration of Rs 93750/- , defendant No. 1 received Rs 85,000/- i.e. more than 90% of the sale price. In spite thereof, just 13 days after the agreement, defendant No. 1 executed release deed on 20.7.2000 (two days before the date stipulated in the agreement for execution of sale deed in favour of the plaintiff) of the suit land in favour of his own wife defendant No. 2. This is complete dishonest and malafide conduct of the defendants. Even in the written statement, the defendants did not come out with honest stand and clean hands. On the other hand, the plaintiff had come to know of the release deed in first week of September, 2000 and promptly filed complaint on 20.9.2000 against both the defendants. In this view of the matter, alleged delay in filing the suit pales into insignificance. Moreover, plaintiff had already paid more than 90% of the sale consideration to defendant No. 1 at the time of agreement. For this added reason, also alleged delay in filing the suit becomes insignificant and cannot be used to deny the relief of specific performance of agreement to the plaintiff. For the reasons aforesaid, I find no merit in this second appeal. No question of law, much less substantial question of law, arises for adjudication in this second appeal. Accordingly, the appeal is dismissed in limine. CM No. 2707.C of 2012 for interim stay is dismissed as infructuous.