Rajinder Singh and Others vs Narsi and Others

Sabina, J.—Plaintiff Daulat Ram had filed a suit for specific performance of agreement to sell dated 17.2.1985.

The case of the Plaintiff, in brief, was that Tej Singh was owner of the property in dispute. After the death of Tej Singh, Defendants, being his only legal heirs, had inherited the estate of the deceased including the suit land. Tej Singh, during his life time, had executed the agreement to sell in question in favour of the Plaintiff qua the suit property. Tej Singh had received Rs. 11,500/- as earnest money and had executed a separate receipt in this regard. The balance sale price was retained by the Plaintiff for payment to the mortgagees to get the suit land redeemed. The sale deed was to be executed on or before 1.12.1985 and possession of the land was to be handed over to the Plaintiff before 15.6.1985. Tej Singh had failed to execute the sale deed in favour of the Plaintiff. The Plaintiff had always ready and willing to perform his part of the contract.

Defendants, in their written statement, averred that Tej Singh had never executed the agreement to sell in question. There were some negotiations between the Plaintiff and Tej Singh for giving the land on lease. The Plaintiff and attesting witnesses in collusion with each other might have got the signatures of Tej Singh, while he was under the influence of liquor.

On the pleadings of the parties, following issues were framed by the trial Court:

Whether Tej Singh, predecessor of the Defendants entered into an agreement of sale in respect of the suit land with the Plaintiff on 17.2.1985 and received a sum of Rs. 11,500/- as earnest money? OPP.

Whether the Plaintiff has always been and is still ready and willing to perform his part of contract? OPP

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

Whether the agreement is a result of fraud ? OPD

Whether the suit property is inherited by Tej Singh from his father, if so to what effect? OPD

Relief.

The trial Court dismissed the suit of the Plaintiff vide judgment and decree dated 20.10.1995. Aggrieved by the same, Plaintiff preferred an appeal and the same was allowed vide judgment and decree dated 21.10.1999 passed by Additional District Judge, Kaithal. Consequently, the suit of the Plaintiff was decreed. Hence, the present appeal by the Defendants.

The substantial question of law that arises in this appeal is as to whether the judgment and decree passed by the first Appellate Court are against the evidence on record and are perverse ?

The Plaintiff had filed the suit basing his claim on agreement to sell dated 17.2.1985. Although the Plaintiff examined witnesses to prove the due execution of the agreement to sell in question but the same fail to satisfy the test of judicial scrutiny. The Plaintiff has also proved on record Ex.P-3, agreement qua lease deed, alleged to have been executed by Tej Singh in favour of the Plaintiff. The said lease deed was executed on 22.1.1985, whereas, the agreement to sell in question Ex.P-1 and receipt Ex.P-2 were executed on 17.2.1985. A perusal of the said documents reveals that the signatures of Tej Singh on the lease deed and agreement to sell along with receipt are different. The difference between the signatures of Tej Singh on lease agreement and sale agreement are so different that they create a doubt qua the execution of agreement to sell in question. Learned Counsel for the Respondents has also been unable to explain the obvious difference in the signatures of Tej Singh on Ex. P-3 and on Ex.P-1 and Ex.P-2. Since there is doubt qua execution of the agreement to sell by Tej Singh in favour of the Plaintiff, the suit of the Plaintiff was liable to be dismissed. The first Appellate Court has, thus, failed to appreciate the material evidence on record. Although the Defendants have not themselves appeared in the witness box nor have examined any handwriting expert but the difference in signatures of Tej Singh on the lease deed and agreement to sell and receipt is so apparent that no opinion of handwriting expert was necessary in this case. Ex.P-1 to Ex.P-3 have been executed within a gap of one month and the difference in signatures of Tej Singh on the said documents gains more importance. Thus, the findings of the first Appellate Court are against the material evidence on record and are perverse. The substantial question of law that arises in this appeal stands answered accordingly.

Hence, this appeal is allowed. The impugned judgment and decree dated 21.10.1999 passed by the first Appellate Court are set aside and the judgment and decree dated 20.10.1995 passed by the trial Court are upheld. Consequently, the suit of the Plaintiff stands dismissed.