Kurshid Akbar vs Smt. Kalia Rani

L.N. Mittal, J.—Defendant-Khurshid Akbar having failed in both the Courts below has filed this second appeal. Respondent-plaintiff-Kalia Rani filed suit against defendant-appellant for possession of suit house, which is old house in the shape of khola, by specific performance of agreement to sell dated 13.12.2000 with consequential relief of permanent injunction. The plaintiff alleged that the defendant agreed to sell the suit property to the plaintiff for Rs. 90,000/- and received Rs. 30,000/- as earnest money and executed agreement dated 13.12.2000 and sale deed was to be executed on 15.01.2001. Prior to the said date, plaintiff served notice on the defendant for executing the sale deed. The plaintiff remained present in the office of Sub-Registrar on 15.01.2001 with requisite amount to get the sale deed executed in terms of the agreement but the defendant did not turn up and committed breach of the agreement although the plaintiff has always been ready and willing to perform his part of the contract.

The defendant denied the plaint averments. He denied having agreed to sell the suit house to the plaintiff or having executed the impugned agreement or having received Rs. 30,000/- as earnest money. The defendant pleaded that on 13.12.2000, he approached plaintiff''s husband for loan of Rs. 15,000/- which the defendant would have required if matrimonial match of his daughter would have been finalized. While advancing the said loan, plaintiff''s husband obtained signatures of defendant on 2-3 blank stamp papers as security. Since match of defendant''s daughter was not finalized, the defendant returned the borrowed amount of Rs. 15,000/- to the plaintiff and demanded back the blank signed stamp papers. The plaintiff told that the same were with her husband who was not present at home at that time and the same would be returned later on. However, the plaintiff and her husband did not return the said papers and forged the impugned agreement thereon. The defendant even filed suit for permanent injunction restraining the plaintiff and her husband from dispossessing the defendant forcibly from the suit property and also for return of the blank signed stamp papers. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Yamuna Nagar at Jagadhri vide judgment and decree dated 03.09.2008 decreed the plaintiff''s suit. First appeal preferred by defendant has been dismissed by learned District Judge, Yamuna Nagar vide judgment and decree dated 13.09.2009. Feeling aggrieved, defendant has filed this second appeal.

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

Plaintiff has led sufficient evidence to prove her case. She has examined both attesting witnesses of the agreement as well as the Advocate who drafted the agreement, besides herself stepping into the witness box. All of them broadly stated according to plaintiffs version.

On the other hand, defendant himself appeared as DW-1 and broadly reiterated his version. He also examined Aslam DW-2 who supported the defendant''s version regarding loan of Rs. 15,000/- and signatures on blank stamp papers. Partap Singh DW-3 stated about return of the loan amount of Rs. 15,000/- by defendant to the plaintiff.

It is thus apparent that plaintiff''s evidence is very cogent and credible. Both attesting witnesses of the agreement have been examined by her. Advocate, who drafted the said agreement, has also been examined. They have broadly supported the plaintiff''s version. There is nothing on record to discard their sworn statements. On the other hand, defendant has impliedly admitted his signatures on the impugned agreement by pleading that his signatures had been obtained on blank stamp papers. However, defendant has failed to substantiate his version that his signatures had been taken on blank stamp papers. Moreover, the defendant while allegedly repaying the loan amount of Rs. 15,000/- would have taken back the alleged blank singed stamp papers. He would not have returned the money without simultaneously taking back the said papers.

Counsel for the appellant stated that the suit filed by defendant-appellant inter alia for return of the alleged blank signed stamp papers has since been dismissed. In view thereof also, it is apparent that version of the defendant that his signatures had been obtained on blank stamp papers cannot be accepted.

Counsel for the appellant contended that suit house is the sole residential house of the defendant, who along with his family members is residing therein and, therefore, specific performance of the agreement would cause hardship to the defendant. Reference was also made to recital in the impugned agreement Annexure P-3 that in the event of default by defendant, the plaintiff would be entitled to double the earnest money. On its basis, it was contended that alternative relief of return of earnest money or double thereof could be granted to the plaintiff.

I have carefully considered the aforesaid contentions but the same are completely misconceived and meritless. As regards alleged hardship to the defendant by specific performance of the agreement, the said contention is beyond pleadings and material on record. No such plea was admittedly taken by the defendant in his written statement nor there is any evidence on record to substantiate this contention. Consequently, the contention, built completely in air, without any foundation, cannot be accepted. Even otherwise, the contention is untenable because perusal of the agreement as well as pleadings of the parties reveals that the suit property is in the shape of khola i.e. old dilapidated construction having fallen partially. Consequently the question of the suit property being sole residential house of the defendant and his family, would not arise. Here it would also be relevant to mention that the suit property is situated in Rana Partap Gardan, Jagadhari whereas the defendant is mentioned to be resident of near Chuna Bhati, Jagadhari. It is thus manifest that defendant is not residing in the suit property. Consequently, the question of alleged hardship to the defendant would not arise. Even otherwise, the defendant while agreeing to sell the suit property to the plaintiff should have been aware of his alleged hardship.

The question of granting alternative relief of recovery of money to the plaintiff does not arise because the term of the agreement referred to by counsel for the appellant recites that in the event of default by defendant, the plaintiff would be entitled either to get double the earnest money or to get the sale deed executed. Thus it was option of the plaintiff to either seek specific performance of the agreement or to seek recovery of double the earnest money. Even otherwise, in the case of agreement to sell immovable property, ordinarily the plaintiff is entitled to relief of specific performance. In the instant case, there is no circumstance to take exception to the said rule. There is no ground to deny the relief of specific performance of the agreement to the plaintiff. For the reasons aforesaid, it is manifest that there is no merit in this second appeal. Concurrent finding recorded by the Courts below to decree the suit of the plaintiff is fully justified by the evidence on record and is not shown to be perverse or illegal or based on misreading or mis-appreciation of evidence. Therefore, there is no ground to interfere with the said finding even on re-appreciation of evidence. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed.