Raj Kumar Vishwakarma vs Late Surya Prakash Jacob Reddy through L.R S

N.K. Agarwal, J.—This is plaintiff''s first appeal against the judgment and decree dated 3rd April, 2010 passed in Civil Suit No. 8 - A/2009 by the IXth Additional District Judge (FTC), Bilaspur dismissing plaintiff''s suit. Facts of the case in brief are as under:-

The plaintiff filed a suit for specific performance of contract stating that the original defendant is owner of a house constructed over 2720 sq. ft. and open land measuring 1490 sq. ft. situated at Patwari Halka No. 22, Juma Bilaspur bearing Khasra No. 616/1 area 0.57. The plaintiff is residing in a part of the suit property since 1999 as tenant. The defendant entered into agreement of sale of the suit property for a consideration of Rs. 11,00,000/- and received Rs. 4,50,000/- from the plaintiff in installments and executed its receipts. Thereafter defendant received Rs. 1,25,000/- from the plaintiff, thus he received total Rs. 5,75,000/- and executed agreement to sell. As per terms of the agreement, the defendant had to execute registered sale deed in respect of suit property in favour of the plaintiff within a period of three years from the date of agreement after receiving remaining amount of consideration of Rs. 5,25,000/- from the plaintiff. The defendant due to increase in the price of the land does not want to sell the land to the plaintiff whereas the plaintiff has always been and is still ready and willing to perform essential terms of the contract which are to be performed by him.

The defendant filed written statement and denied execution of agreement to sell and receipt of Rs. 5,75,000/- as advance. It was stated that the agreement is forged and fabricated and it does not bear signature of defendant. The suit is barred by limitation and is not maintainable. The plaintiff is his tenant since 1998 and has stopped paying rent since 2005. The defendant has preferred a suit bearing C.S. No. 16-A/2006 against plaintiff for eviction and arrears of rent which is pending before the IIIrd Civil Judge Class -- I, Bilaspur. The plaintiff has also preferred a suit bearing No. 1-A/2006 against disconnection of electric connection which ended in compromise. A Criminal case is also pending in the court of Judicial Magistrate First Class, Bilaspur filed by the defendant against the plaintiff and his witnesses in relation to preparation of alleged forged and fabricated agreement of sale.

Learned Tribunal on a close scrutiny of evidence led, material placed and submissions made dismissed the suit inter alia finding plaintiff failed to prove execution of agreement of sale dated 12-3-2004 by defendant and payment of part consideration.

Shri Anumeh Shrivastava, learned counsel for the appellant would submit, learned trial Court has grossly erred in relying upon inadmissible opinion of handwriting expert who has not at all been examined as a witness in the Court. The trial Court has assumed the role of handwriting expert but without detailing the dissimilarities in the signatures has satisfied himself by recording its conclusion as a layman that the difference in the signature is clear and thus has erred in recording a finding, plaintiff failed to prove execution of agreement of sale and in dismissing plaintiff''s suit.

On the other hand, Shri F.S. Khare, learned counsel appearing for the respondent would support the judgment and decree impugned and would submit instant appeal deserves to be dismissed.

We have heard learned counsel for the parties and perused the record of the trial Court.

Core question involved in the instant case for decision making is: whether or not the defendant executed agreement of sale (Ex. P - 1) in favour of plaintiff and received Rs. 5,75,000/- as part consideration?

Facts which are not in dispute are as under:

i. Plaintiff is residing in a part of the suit property since 1999 as defendant''s tenant.

ii. In the year 2005, plaintiff instituted a suit against the defendant for permanent injunction inter alia on the ground he is tenant of defendant and is enjoying electric connection and water connection but on 7-10-2005, defendant illegally disconnected those connections.

iii. Above suit ended in compromise vide award dated 6-5-2007 (Ex. D-2). On 23-2-2006, defendant sent registered notice (Ex. D-11) to plaintiff demanding vacant possession and arrears of rent on the ground of non-payment of rent and bonafide need. Notice was replied by the plaintiff vide reply dated 11-3-2006 (Ex. D-12). The eviction suit filed by the defendant bearing Civil Suit No. 16-A/2005 is pending.

iv. In all above proceedings, the fact of entering into agreement of sale dated 12-3-2004 (Ex. P-1) was not disclosed.

v. Complaint Case no. 50/2009 is filed by the defendant against the plaintiff and his two witnesses namely Pradeep Singh Thakur and Ashok Shrivastava under Sections 420, 467, 468, 474, 34 and 120B of I.P.C. complaining act of forgery of defendant and his witnesses in preparation of alleged agreement of sale (Ex. P-1). The complaint case is registered on 4-4-2009, notices were issued and is pending consideration before the Judicial Magistrate First Class, Bilaspur.

vi. Instant suit for specific performance of contract was filed on 3-3-2007.

vii. As per paragraphs 13, 14 and 22 of statement of plaintiff Rajkumar Vishwakarma (P.W. 1), plaintiff paid Rs. 4,50,000/- in 26, 27 installments between year 2002 and 2004 and paid Rs. 1,25,000/- one day before the date of execution of alleged sale agreement (Ex. P-1) but above description is not mentioned in the alleged agreement of sale (Ex. P-1).

viii. The plaintiff did not examine handwriting expert to prove defendant''s signature over agreement of sale (Ex. P-1).

ix. As per plaint averment, plaintiff started paying advance amount in installment in the year 2002 and for that receipts are being issued by the defendant but no such receipts were filed in the case nor disclosed in the agreement of sale (Ex. P-1).

From the above facts, it is crystal clear, relation between the plaintiff and the defendant right from the year 2005 are not good, since then are litigating with each other. In the above circumstances, we fail to understand why plaintiff will not disclose the fact of entering into agreement of sale with the defendant in those proceedings. Admittedly, amount of Rs. 5,75,000/- was not paid by the plaintiff to the defendant on the alleged date of execution of agreement of sale and there is nothing in the agreement suggesting above amount was paid earlier to the date of agreement of sale. If the plaintiff entered into agreement of sale with the defendant in the year 2002 and started paying advance amount in installment, then what was the reason for him for not getting agreement of sale executed in that year. It is highly improbable, a vender will get advance money in 26-27 installments and thereafter execute agreement of sale without mentioning above fact. Above facts themselves are sufficient to dislodge the fact of execution of agreement of sale by the defendant. Further despite defendant''s denial plaintiff did not examine handwriting expert to prove his signature on agreement of sale (Ex. P-1). Under Sections 101 and 102 of the Indian Evidence Act, initial burden of proof will be on plaintiff in which he utterly failed.

After re-appreciating the entire evidence and material placed on record, in the considered opinion of this Court, alleged agreement of sale (Ex. P-1) is a highly suspicious document, plaintiff also failed to discharge his burden to prove signature of defendant over it and to prove payment of part consideration of Rs. 5,75,000/- as alleged. Based on above agreement of sale, in the facts and circumstances of the case, learned trial Court has not committed any illegality in disallowing plaintiff''s claim of specific performance of contract and in dismissing plaintiff''s suit.

For the reasons mentioned hereinabove, the appeal being devoid of substance liable to be and is hereby dismissed. No orders as to costs.