Raja Ram and Another vs Krishan Lal

Rakesh Kumar Garg, J.—This is defendants''s second appeal challenging the judgment and decrees of the Courts below, whereby suit for

specific performance of the agreement dated 28.12.2000 filed by the plaintiff, has been decreed by the Courts below with consequential relief of

permanent injunction restraining the defendants from alienating the suit land by way of sale etc. in favour of anybody else than the plaintiff.

Brief facts of the case of the plaintiff are that the defendants agreed to sell the suit land in favour of the plaintiff @ Rs. 2,80,000/- per acre and

an agreement to this effect was reduced into writing on 28.12.2000, reciting all the terms and conditions and in part performance thereof, the

defendants received a sum of Rs. 1,00,000/- as earnest money from the plaintiff in the presence of witnesses. After having received the earnest

money and admitting the contents of the agreement to be true, the defendants signed the agreement in the presence of marginal witnesses. The

remaining sale consideration was to be paid by the plaintiff, at the time of execution and registration of sale deed on the stipulated date i.e.

06.06.2001. It is further pleaded that the plaintiff had always remained ready and willing and is still ready to perform his part of the agreement.

06.06.2001, being holiday, the plaintiff along with balance sale consideration amount and other necessary expenses was present in the office of

Sub-Registrar, Fazilka, on 07.06.2001 to get the sale deed executed and registered in his favour and remained present there throughout the day

but the defendants did not turn up. The defendants failed to perform their part of the contract. The plaintiff approached and requested the

defendants many a times to execute the sale deed in his favour while receiving the balance sale consideration amount, however the defendants

failed. The defendants have started threatening the plaintiff that they will alienate the suit property in favour of somebody else. Hence, this suit.

It has also been prayed in the suit that if in any event, the plaintiff is not found entitled to specific performance of agreement, the plaintiff to

recover from the defendants a sum of Rs. 1lac given a s earnest money and Rs. 50,000/- as damages for non-fulfillment of agreement along with

the interest.

Upon notice of the suit being given to the defendants, written statement was filed raising preliminary objections that no cause of action accrued

to file the suit, that the plaintiff has not come to court with clean hands; that only defendant No. 1 agreed to sell land measuring 12 kanals 10 marlas

for consideration of Rs. 4,37,500/-, whereas the defendant No. 2 did not agreed to sell his share. Defendant No. 1 also got his presence marked

before the Sub Registrar, Fazilka on 28.05.2001, the date which was fixed for execution of sale deed. It is alleged that the plaintiff got changed the

date from 28.05.2001 to 06.06.2001 and also the extent of land in the agreement to sell. It was the plaintiff who after moving the application on

27.9.2001 got the copy of sale deed which was earlier executed by the defendant No. 2 and then got the signature of defendant No. 2 copied on

the last page of the agreement to sell. It is also alleged that earlier the suit was filed for permanent injunction which was dismissed as withdrawn on

20.04.2002 by the plaintiff. Taking the objection of suit being bad for non-joinder and mis-joinder of necessary parties, it is also disputed that the

suit is not properly valued for the purposes of court fee and jurisdiction and therefore it is contended that the suit is liable to be dismissed with

special costs under Sections 35-A CPC.

On merits, it is further reiterated that the defendant No. 1 has only agreed to sell his share out of the joint land. It is also contended that the last

date of the execution of agreement to sell was 28.05.2001 the day when the defendant No. 1 got his presence marked before the Sub-Registrar. It

is contended that the plaintiff is neither entitled to specific performance of the agreement to sell because he was not ready and willing to perform his

part of the agreement on 28.05.2001 nor he is entitled to get back the amount of Rs. 1,50,000/- with interest. Denying the averments of the plaint

prayer for dismissal of the suit was made.

After hearing both the learned Counsel for the parties, the trial Court vide judgment and decree dated 07.11.2005 decreed the suit of the

plaintiff.

. Aggrieved against the aforesaid judgment and decree of the trial Court, the defendants filed an appeal, which was dismissed vide impugned

judgment and decree dated 07.06.2008 passed by Additional District Judge, Ferozepur. Still aggrieved, the defendants have filed this appeal in

this Court challenging the judgment and decrees of the Courts below.

8.. Jigyasa Tanwar, Advocate, learned Counsel for the appellants has vehemently argued that both the Courts below have not appreciated the

evidence on record. It had been proved on record by the appellants that the plaintiff has played fraud on the appellants by defrauding the

signatures of appellant Milkh Raj by copying his signatures from the sale deed of some other land and the Courts below have committed an error

by not appreciating that as per Section 73 of the Indian Evidence Act, when the copy of the report of Anil Kumar Gupta, Handwriting Expert was

placed on file, there was no need to examine the evidence of the Handwriting Expert and the Hon''ble Court was itself competent of comparing the

signatures appearing on the agreement as of Milkh Raj with his standard signatures with the assistance of the report of Handwriting Expert Mr. Anil

Kumar Gupta, which was placed on file by the appellants.

The learned Counsel has further argued that the Courts below have erred at law while dismissing the application under Order 41 Rule 27 CPC

filed by the appellants for leading additional evidence, by way of producing certified copy of plaint, written statement, copy of the order dated

13.11.2001, 20.04.2002 and certified copy of the statement of plaintiff-respondent, recorded on 20.04.2002 by which the earlier suit for

preliminary objection was got dismissed as withdrawn.

On the basis of these arguments, the learned Counsel has prayed that the judgment and decrees of the Courts below by set aside and suit of

the plaintiff-respondent be dismissed.

I have heard learned Counsel for the appellant and perused the record.

They very first contention of the appellants is that the learned Courts below have not framed the issue under Order 2 Rule 2 as the appellant

has specifically taken a preliminary objection that earlier suit for permanent injunction filed by the plaintiff was got dismissed as withdrawn on

20.04.2002. However, from the evidence on record, provisions of Order 2 Rule 2 CPC are not attracted in this case. In order to prove this

contention the defendants were required to specifically prove the pleadings of the previous suit, which has not been done in the instant case. I am

supported in my view by a judgment of this Court in the case of Harbans Singh and Others Vs. Mohinder Singh and Others, , wherein it has been

authoritatively laid down that in the absence of specific pleadings on the non-production of the proceedings of the first suit, plea of Order 2 Rule 2

cannot be raised before the Appellate Court. The Counsel for the appellants has also argued that in fact the date for execution and registration of

the sale deed was fixed as 28.05.2001 and on that date the appellant was present in the Office of Sub-Registrar, whereas the plaintiff did not turn

up and therefore the plaintiff is not entitled to claim any relief.

However, the agreement dated 28.12.2000 has been duly proved by the plaintiff-respondent and in fact its execution could not be challenged

by the Counsel for the appellants. It is pertinent to mention here that the defendants have mainly challenged the agreement to sell dated 28.12.2000

on three grounds. One ground is that the agreement to sell was only executed by Raja Ram defendant No. 1. The second ground is that the date

for execution and registration of the sale deed was fixed as 28.05.2001 and not 06.06.2001. The third ground of challenge to the agreement to sell

is that the signatures of Milkh Raj defendant No. 2 where forged by the plaintiff after getting a copy of sale deed executed by Milkh Raj defendant.

It is settled proposition of law that a party, who asserted the existence of certain facts, is bound to prove those facts by leading substantial

evidence. Once a defence is set up by the defendants that the date for execution and registration of the sale deed was fixed as 28.05.2001, the

defendants were bound to prove this fact. In order to prove this fact there is no cogent evidence on the record.

It is also relevant to mention, at this stage, that the appellant has taken a specific stand that the alleged agreement is made by alteration by the

plaintiff-respondent and in order to prove this issue, the appellant had got compared the signatures of Milkh Raj, defendant No. 2 from Mr. Anil

Kumar Gupta, Document Expert and copy of report dated 13.12.2003 marked as Ex.D-1.

Contention of the learned Counsel for the appellants is that the Courts below have committed a grave error by not appreciating that as per

Section 73 of the Indian Evidence Act, when the copy of the report of Handwriting Expert was placed on file, there was no need to examine the

evidence of the Handwriting Expert. The Hon''ble Court was itself competent enough of comparing the signatures appearing on the agreement as of

Milkh Raj with his signatures, with the assistance of the report of the Handwriting Expert Mr. Anil Kumar Gupta, which was placed on file by the

appellants.

I am afraid, this contention of the appellants is devoid of any force. u/s 73 of the Indian Evidence Act, the Court may compare the disputed

signatures, writing or seal of a person with signatures, writing or seals which have been admitted, are proved to the satisfaction of the Court to have

been made or written by that person. A Court may rely upon its own comparison of signatures, writing or seal, unaided by expert evidence. But

the rule of prudence is that comparison of signatures by Courts as a mode of ascertaining the truth should be used with great care and caution.

Thus, it was for the Court to either decide to compare the disputed signatures of Milkh Raj on the agreement, which the Court has not done and

therefore it was for the appellants to prove the fact that disputed signatures of Milkh Raj on the agreement are forged, by proving the report of the

Handwriting Expert, which he has failed to do. Since the report of the Handwriting Expert has not been proved by the appellants by producing the

expert, the same is liable to be rejected.

While dismissing the appeal filed by the defendants, the Additional District Judge, Ferozepur observed as under:

Due to non-proving attendance application dated 28.05.2001, non-proving hand writing expert and non-placing on file any of the

pleadings/documents of the previous suit, the dismissal of the application under Order 41 Rule 27 CPC has resulted into disbelieving the version of

the appellants-defendants and therefore, the appeal of the appellants-defendants is dismissed with costs and the learned lower court judgment and

decree dated 7.11.2005 is hereby affirmed.

I find no infirmity in the impugned judgment and decrees. For the reasons recorded above, I find no merit in the appeal.

No substantial question of law arises.

Appeal dismissed.