Sewak Singh and another vs Baldev Singh

L.N. Mittal, J.—By this common order, I am disposing of two appeals i.e. R. S. A. No. 512 of 2011 and R.S.A. No. 513 of 2011 both titled Sewak Singh and another v. Baldev Singh, as both these appeals have arisen out of a single suit. These are second appeals by defendants by Sewak Singh and Sukhdev Singh sons of Malkiat Singh. Suit against them was filed by respondent-plaintiff Baldev Singh alleging that the defendants agreed to sell the suit land measuring 36 kanals 17 marlas to the plaintiff @ Rs. 1,38,000/- per acre, for total consideration of Rs. 6,34,600/- and received Rs. 5,00,000/- as earnest money and executed agreement dated 11.01.2000. Sale deed was to be executed up to 15.03.2000. However, the defendants failed to get the mortgage of the suit land redeemed and therefore, on 13.03.2000, the defendants, after receiving further amount of Rs. 1,00,000/- from the plaintiff, made endorsement on the back of the agreement extending the date for execution of the sale deed up to 21.05.2002. Accordingly, plaintiff visited the office of Sub Registrar on 21.05.2002 with requisite money to get the sale deed executed in terms of the agreement, but the defendants failed to turn up and committed breach of the agreement. Plaintiff has always been ready and willing to perform his part of the contract. Accordingly, the plaintiff sought specific performance of the impugned agreement and in the alternative, the plaintiff sought recovery of Rs. 6,34,600/- i.e. Rs. 6,00,000/- as refund of earnest money and Rs. 34,600/- as damages. The plaintiff also sought consequential relief of permanent injunction.

The defendants, while broadly denying the plaint averments, pleaded that they had been selling their crops at the shop of M/s Manjinder Singh Sohan Singh being run by Manjinder Singh, who is son of brother of plaintiffs wife. At that time, plaintiff and Manjinder Singh, on the basis of false entries in account books, claimed huge amount to be outstanding against the defendants, although no such amount was taken by the defendants. On this pretext, the plaintiff obtained signatures/thumb impressions of the defendants on blank stamp papers, documents affixed with revenue stamps and in the register. The said documents have been subsequently converted into impugned agreement to sell. The defendants denied having agreed to sell the suit land to the plaintiff or having received any earnest money from him. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Muktsar, vide judgment and decree dated 08.12.2009, instead of granting decree for specific performance of the impugned agreement, decreed the plaintiffs suit for recovery of Rs. 6,00,000/- (earnest money) along with interest. Against judgment and decree of the trial court, both parties preferred separate first appeals. Learned Additional District Judge, Sri Muktsar Sahib, vide common judgment and decrees dated 26.08.2010, dismissed the appeal preferred by defendants and allowed the appeal preferred by plaintiff and decreed the suit for specific performance of the impugned agreement. Feeling aggrieved, defendants have filed these two second appeals because there were two first appeals.

I have heard learned counsel for the parties and perused the case file.

Plaintiff has led sufficient cogent evidence to prove his case. The plaintiff, besides himself appearing into the witness-box, examined deed writer, who scribed the impugned agreement, stamp-vendor, who sold stamp papers for the agreement, Manjinder Singh - attesting witness of the agreement and also handwriting and finger-print expert, who opined that the alleged signatures of defendant No. 1 and alleged thumb impressions of defendant No. 2 on impugned agreement and endorsement tally with their standard signatures and thumb impressions. On the other hand, defendant no. 1 Sewak Singh himself appeared in the witness-box and stated according to his version.

Signatures of defendant No. 1 and thumb impressions of defendant No. 2 on the impugned agreement and endorsement have impliedly been admitted by the defendants and have not been seriously disputed. Even otherwise, the plaintiff has led sufficient cogent evidence to prove the same. Statements of plaintiff and attesting witness of the agreement and endorsement (Manjinder Singh) coupled with statement of document writer i.e. scribe are sufficient to prove due execution of the impugned agreement and endorsement by the defendants. Self-serving oral and bald statement of defendant No. 1 is not sufficient to rebut the aforesaid cogent evidence led by the plaintiff.

In addition to the aforesaid, version of the defendants in the written statement is inherently and intrinsically untenable. Defendants have pleaded that they had not taken any amount from the Commission Agent, but the Commission Agent depicted huge outstanding amount from the defendants and on that pretext, obtained their signatures and thumb impressions on blank stamp papers, blank documents bearing revenue stamps and in the register. If the defendants had not taken any amount from the Commission Agent, there is no reason why the defendants would affix their signatures/thumb impressions on blank stamp papers, blank papers bearing revenue stamps and in registers of deed writer and stamp vendor. It is also worth mentioning that agreement is dated 11.01.2000 and on the back of it, there is endorsement dated 13.03.2000, which has also been signed/thumb marked by the defendants. It again negatives the version of the defendants that their signatures/thumb impressions had been obtained on blank papers.

Counsel for the appellants contended that Roop Singh-another witness of the impugned agreement and Pal Singh-another witness of the endorsement dated 13.03.2000 have not been examined by the plaintiff, whereas Manjinder Singh-witness of the aforesaid agreement and endorsement is admittedly close relative of the plaintiff, being son of his brother-in-law. The contention does not help the appellants in any manner. Testimony of Manjinder Singh cannot be discarded merely because he is relative of plaintiff. On the other hand, even defendants have not examined Roop Singh-the other witness of the agreement and Pal Singh-the other witness of the endorsement, whereas plaintiff has examined one attesting witness of the agreement and endorsement and also the scribe of the agreement. Moreover, both the courts below have concluded about due execution of the agreement by the defendants and receipt of Rs. 6,00,000/- from the plaintiff i.e. Rs. 5,00,000/- at the time of agreement and Rs. 1,00,000/- at the time of subsequent endorsement.

In view of the aforesaid, I find no infirmity in the concurrent finding of the courts below that the agreement and endorsement were executed by the defendants, who also received Rs. 6,00,000/- from the plaintiff. The plaintiff has always been ready and willing to perform his part of the contract. He attended the office of Sub Registrar on 21.05.2002-the date stipulated in the endorsement for execution of the sale deed, but the defendants did not turn up. The plaintiff also filed the instant suit immediately thereafter on 29.05.2002. Thus, readiness and willingness on the part of the plaintiff to perform his part of the contract is fully established. There was, therefore, no reason for the trial court to decline the relief of specific performance of the agreement, which has been rightly granted by the lower appellate court For the reasons aforesaid, I find no merit in the instant second appeals. Finding of the lower appellate court decreeing the suit of the plaintiff for specific performance of the agreement is fully justified by the evidence on record, and therefore, the same does not warrant any interference. The said finding is not based on (Disappreciation or misreading of evidence nor it is shown to be perverse or illegal so as to warrant interference by this Court in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for adjudication in these second appeals. Accordingly, both these appeals are dismissed in limine.