Mukhtiar Singh vs Sarban Singh

Vijender Singh Malik, J.—This is plaintiff''s regular second appeal against the judgment and decree dated 24.5.2012 passed by learned Civil Judge [Junior Division], Moga and judgment and decree dated 18.5.2013 passed by learned Additional District Judge, Moga. Mukhtiar Singh, the plaintiff-appellant brought a suit for possession by way of specific performance of agreement of sale dated 20.3.2009 executed by the defendant in his favour in respect of land measuring 24 kanals. His case is as under:

The defendant agreed to sell the land in question in favour of the plaintiff vide agreement dated 20.3.2009. The defendant received earnest money in a sum of Rs. 10,00,000/- from the plaintiff in the presence of the witnesses. The sale deed was to be executed on or before 15.5.2009. Defendant had taken a loan of Rs. 5.00 lakhs from Bank of India by mortgaging the suit land and he promised to get the land cleared of the loan. The plaintiff has been ready and willing to perform his part of the contract, but the defendant did not execute the sale deed. He is now said to be bent upon to alienate the suit land to some other person in violation of the terms of the agreement and, hence, the suit.

The defendant resisted the suit. He has claimed the agreement to be a false, fabricated and forged document. He denied execution of the alleged document or to have received the earnest money. It is further averred that the plaintiff has manipulated a false story to grab the land of the defendant.

On the pleadings of the parties, learned trial court settled the following issues:

Whether the defendant entered into agreement dated 20.3.2009 in favour of plaintiff? OPP

Whether the defendant had received the earnest money from the plaintiff? OPP

Whether the plaintiff has always been ready and willing and still ready and willing to perform his part of the agreement? OPP

Whether plaintiff is entitled to get the relief for possession by way of specific performance of the agreement dated 20.3.2009? OPP

Whether the plaintiff is entitled to get the relief of permanent injunction, as prayed for? OPP

Whether the suit is not maintainable in the present form? OPD

Whether the alleged agreement is forged and fabricated documents? If so, its effect? OPD

Relief.

Parties led their respective evidence. Hearing learned counsel for the parties, learned trial court found the agreement to have been duly executed by the defendant in favour of the plaintiff on receipt of the earnest money. Consequently, the suit succeeded and has been decreed.

However, on appeal by the defendant, learned Additional District Judge, Moga found the document alleged to be an agreement of sale to be a document of security in order to secure a loan of Rs. 10.00 lakhs. She has held that the document was never intended to be acted upon as an agreement of sale. Consequently, the appeal was partly allowed and the suit of the plaintiff was decreed with costs for recovery of Rs. 10.00 lakhs, the loan amount with interest at the rate of 12% per annum from the date of execution of the document till the date of filing of the suit and at the rate of 6% per annum from the date of filing of suit till realization thereof.

Learned counsel for the appellant has contended that the defendant did not appear in the witness box. According to him, adverse inference has to be drawn against his case. He has further submitted that in place of the defendant, his son appeared in the witness box who has admitted that the agreement was not executed in his presence. According to him, the son was not even proved to be attorney of the defendant.

Learned counsel for the appellant has further submitted that whatever the son of the defendant had stated in his affidavit was not there in the written statement. According to him, the marginal witnesses of the agreement of sale have proved the document and there has been no complaint whatsoever from the defendant about the document being the forged or fabricated document.

Learned counsel for the appellant has further submitted that learned first appellate court has decided the case on presumption. According to him, therefore, substantial questions of law arise in the appeal.

Learned counsel for the respondent-caveator has submitted that Ex. D1 was a previous agreement of sale executed by the defendant in favour of the plaintiff. According to him, in that agreement of sale, the date of execution of the sale deed was mentioned as 20.3.2009. According to him, the second agreement has been executed on the said date i.e., 20.3.2009. He has submitted that the plaintiff has himself admitted in his cross-examination that Ex. D1, the previous agreement was executed when the defendant took a loan of Rs. 10.00 lakhs from him. He has submitted that this admission on the part of the plaintiff clearly shows that he had been in the habit of advancing loans after getting the agreement of sale executed by way of security. He has further submitted that in the face of this admission of the plaintiff, the relief of specific performance, which is discretionary relief, was rightly withheld by learned first appellate court.

Ex. D1 is an agreement of sale executed between the plaintiff and defendant. The plaintiff has unequivocally admitted in his cross-examination that Ex. D1 was executed when defendant took loan of Rs. 10.00 lakhs from him. This admission on the part of the plaintiff-appellant shows that he had been advancing loan to the defendant against the security of the agreement of sale with respect to his land.

In the agreement Ex. D1, the date of execution of the sale deed was fixed as 20.3.2009. The agreement Ex. P1 is dated 20.3.2009. The plaintiff himself has claimed in his plaint that the defendant had taken a loan of Rs. 5.00 lakhs by mortgaging the land and he had agreed to get the land redeemed. This averment of the plaintiff itself shows that the defendant was in need of money and as he was borrowing money from the plaintiff earlier, he may have borrowed the money by way of Ex. P1 also.

It is true that the defendant should have appeared in his own cause and his son cannot fill his place. However, it is the case of the plaintiff and he is to succeed in his case by virtue of strength of his own case. His own admission shows that there is possibility of this agreement being executed by way of security of the loan amount.

The relief of specific performance is discretionary relief. When the plaintiff can be compensated by grant of interest on the amount he has paid to the defendant, the relief of specific performance in the given circumstances could not be granted. Learned first appellate court was, thus, fully justified in declining to grant the relief of specific performance and has been justified in decreeing the suit for recovery of Rs. 10.00 lakhs with interest. In view of my foregoing discussion, I find no fault with the findings recorded by learned first appellate court. Moreover, no questions of law much less substantial questions of law arise in this appeal. Consequently, the appeal is devoid of any merit and is dismissed in limine.