Rambabu Sharma vs Brij Mohan

J.K. Maheshwari, J.—Heard on the question of admission.

This appeal u/s 100 of CPC filed by the plaintiff is directed against the judgment and decree dated 20.01.2006 passed by the VIIIth Additional District Judge, Gwalior in Civil Appeal No. 24A/2005 confirming the findings recorded by 8th Civil Judge Class-I by judgment dated 11.2.05 passed in Civil Suit No. 18A/2003 whereby the suit filed by the plaintiff seeking specific performance was dismissed as barred by limitation.

The plaintiff''s case in brief is that to purchase the suit land from Bhagwanlal an agreement to sell dated 13.7.92 was executed Ex/P1. The land in question was of Khata No. 125 situated in village Patai District Gwalior area 1.150 Hectare to the extent of one half share. The sale consideration was of Rs. 30,000/- out of which Rs. 25,000/- was paid. The time to execute the sale deed was one year. The sale deed could not be executed despite insistence, however the suit seeking specific performance was filed. After filing the said suit an amendment was incorporated on 11.12.98 that in furtherance to agreement to sell on payment of the remaining amount of consideration time to get the executed sale deed was extended for two years writing a receipt, however, the suit is within the period of limitation. In addition it is further contended that the plaintiff has always ready and willing for specific performance of the contract, therefore the decree may be granted.

Defendants who are the legal heirs of the seller have denied the execution of agreement to sell on the pretext that it was a loan transaction which has been repaid by them. They have further denied the execution of the receipt Ex-P/2 inter-alia contending it as forged one. It is further said that as per agreement Annexure P-1 loan was received which was repaid by the father, therefore during life time of the father the suit was not filed by the plaintiff and after his death, and about six years of execution of agreement the suit has been filed which cannot be decreed, therefore it may be dismissed.

Learned trial court has appreciated the document Ex-P/1 and Ex-P/2 both and further read over the statement of Prashant Dattey (PW/2) scriber of the receipt and held that the original of the receipt which ought to be in possession of the plaintiff has not been filed. As per the averments of agreement as well as receipt and the statement of Prashant Dattey the said document cannot be said to be genuine and it has been prepared forgedly. It has further been observed that if any agreement to sell was written on stamp paper then why Ex-P.2 has been written on a simple paper in the shape of receipt seeking extension of time for two years to execute sale deed, however it not be believed. However, the suit was not found within the period of limitation. The said finding recorded by the trial court has been confirmed in toto by the appellate court, however, this appeal has been preferred.

Shri V.K. Bhardwaj, learned senior counsel has strenuously urged that the court below committed error to not to read over the document EX-P.1 and Ex-P.2 simultaneously and also the testimony of Prashant Dattey in the right perspective, therefore the suit has been dismissed as barred by limitation. In addition there to if the court was having any doubt on execution of the document and the signature of Bhagwanlal on the Ex-P.2 then he may take an expert opinion to which the application was allowed, but for the pretext of having a photocopy of the document it was not found justifiable, which is not in accordance with law, therefore finding of the fact recorded by the two courts may be set aside and formulating the substantial question of law, this appeal may be admitted for final hearing.

Mr. Bansal learned counsel appearing on behalf of the respondents has argued in support of the finding as recorded by the two courts and urged that the said concurrent finding of fact dismissing the suit as barred by limitation is neither perverse nor illegal which do not warrant any interference in this appeal, therefore it may dismissed at admission stage.

After hearing learned counsel for the parties and on perusal of the record it is not in dispute that the suit seeking specific performance of the contract has been filed on 3.4.98 on the basis of agreement to sell executed in favour of the plaintiff on 13.7.92 Ex-P.1. In the said agreement the land in question was agreed to sell for a consideration of Rs. 30,000/- out of which Rs. 25,000/- was paid. The time to execute sale deed was one year on payment of the remaining amount. In view of the aforesaid, the two courts below have rightly rely upon the registered agreement to sell. Subsequently, the plaintiff sought extension of time on the basis of receipt EX-P.2 in continuation of document Ex-P.1 whereby the remaining amount of Rs. 5000/- has been paid by him on that day but the seller has taken consent from the plaintiff for extension of time to execute the sale deed of two years.

After going through the pleadings and evidence and precisely reading of both these documents, in my considered opinion, the finding of fact so recorded by the two courts do not suffer from any perversity or illegality warranting interference in this appeal. In the said context, it is to be observed that agreement to sell Ex-P.1 is a registered document executed by the seller Bhagwanlal in favour of the plaintiff specifying the time to execute sale deed within a period of one year. The remaining amount as per the plaintiff has been paid on 10.7.93. However, it is humanly impossible to accept that the plaintiff who paid the entire amount of compensation has agreed for execution of the sale deed after two years without writing any agreement on stamp paper. Thus genuineness of the said document Ex-P.2 is in doubt for the reason that the suit has been filed not during life time of the seller but after his death against the legal heirs. In the suit initially relying upon the document Ex-P.2 the pleadings to have the suit in limitation has not been made but subsequently amendment was sought. It indicates that the reliance on this document is based on afterthought. Its original has not been produced before the court. It is merely a photocopy which was not found proved by the court as per the statement of the subscriber thereof Prashant Dattey (PW.2) The said finding of fact cannot be said to be perverse.

In view of the foregoing discussions, the document Ex-P.2 do not allow extension of time to the plaintiff to brought the present suit for specific performance. In view of the above finding of fact recorded by the two courts dismissing the suit for specific performance as barred by limitation is not liable to be interfered with. However, no substantial question of law arises for determination in this appeal, hence, it is dismissed at admission stage.