Sham Singh vs Bashambar Dass and Another

Surinder Gupta, J.—This Regular Second Appeal is directed against judgment dated 12.03.1987 passed by the First Appellate Court dismissing the appeal filed by defendant No. 1-appellant against the judgment and decree dated 07.04.1986 passed by the Trial Court in this case. Plaintiff-Bashambar Dass (now respondent in this appeal) filed a suit for possession by way of specific performance of the agreement to sell dated 08.07.1982, which was later on renewed vide agreement dated 08.02.1983 with regard to 12 1/2 Killas of land, executed by Sham Singh-defendant No. 1 (Appellant). As per the plaintiff, defendant No. 1 had agreed to sell his land measuring 12 1/2 Killas out of total land measuring 204 Kanalas 15 Marlas for a consideration of Rs. 40,000/- and he received Rs. 30,000/- as earnest money at the time of execution of agreement dated 08.07.1982 and the sale deed was to be executed within 7 months. On 08.02.1983, the defendant No. 1 received a further sum of Rs. 4,000/- and the date of execution of the sale deed was extended upto 30.06.1983. The remaining consideration of Rs. 6,000/- was to be paid at the time of execution and registration of the sale deed. However, the defendant No. 1 did not was turn up to execute the sale deed. The plaintiff always remained ready and willing to perform his part of the contract and also remained present in the office of Sub Registrar, Pathankot on 30.06.1983. The defendant No. 1 did not appear to execute the sale deed. He had, rather, sold the land measuring 47 Kanals, 16 Marlas out of the disputed land to defendant No. 2-Smt. Pushpa Lata and the sale deed in her favour had also been challenged by the plaintiff.

Defendant No. 1-Sham Singh in his written statement denied the execution of the agreement to sell the suit land to the plaintiff. Contention of defendant No. 1 is that he had taken loan of Rs. 23,000/- from the plaintiff with whom, he had cordial relation. The loan was taken on 08.07.1982 with the condition that it would be returned to the plaintiff after 7 months with interest of Rs. 7,000/-. He also sold the land measuring 47 Kanals 16 Marlas to defendant No. 2- Smt. Pushpa Lata on 08.07.1982. It has also been admitted that the date of payment of amount received by him from the plaintiff was extended upto 30.06.1983 and the plaintiff had demanded further interest of Rs. 4,000/- from him.

Defendant No. 2-Smt. Pushpa Lata in her separate written statement has alleged that she purchased the land measuring 47 Kanals, 16 Marlas from defendant No. 1 Sham Singh, who is the owner of the land measuring 204 Kanals 15 Marlas, and the suit is not maintainable against her. She also took the plea of bona fide purchaser and sought dismissal of the suit. The pleadings of the parties led to the framing of the following issues:

Whether the defendant No. 1 entered into an agreement with the plaintiff on 8.7.1982 for sale of the land in dispute and renewed the same on 08.02.1983 and received Rs. 34,000/- as earnest money? OPP

Whether the plaintiff was ready and willing to perform his part of the contract? OPP.

Whether the plaintiff is entitled to Rs. 68,000/- as earnest money and damages in alternative? OPP

Whether the suit is bad for non-joinder of necessary parties ? OPD

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

Whether defendant No. 2 is bonafide purchaser without notice ? OPD

Relief.

The suit was decreed vide judgment and decree dated 30.07.1985. However, in appeal the suit was remanded vide judgment dated 11.02.1986 passed by Additional District Judge, Gurdaspur with a direction to grant one opportunity to the defendant No. 1 to lead evidence. As per order of the Appellate Court, defendant No. 1 was afforded an opportunity to produce the evidence but on the date fixed, he could not produce any evidence and his evidence was again closed.

Learned Trial Court recorded the findings on issue Nos. 1, 2, 4 and 5 in favour plaintiff and on Issue Nos. 3 and 6 in favour of defendants. The suit of the plaintiff was decreed against defendant No. 1 for specific performance of agreement to sell dated 08.07.1982, renewed on 08.02.1983, on payment of the balance sale consideration. However, the suit of the plaintiff against defendant No. 2, Smt. Pushpa Lata was dismissed.

Sham Singh-defendant No. 1 filed an appeal against the judgment and decree of the Trial Court and his appeal was also dismissed by the Additional District Judge, Gurdaspur.

I have heard learned counsel for the appellant and perused the record with his assistance. Learned counsel for the appellant has argued that in this case, the defendant was in distress and had sold his 47 Kanal 16 Maria land to Smt. Pushpa Lata. He also took the loan from the plaintiff and executed the agreement (Ex. P-1) in his favour. However, he could not produce any evidence in support of his contention and the evidence of the defendant was closed by order. Defendant No. 1 preferred an appeal, wherein the judgment and decree of the trial Court was set aside and he was allowed only one opportunity to lead evidence. On the date fixed by the trial Court, no evidence could be produced as there was curfew in the city and no further adjournment was granted for his evidence.

On perusal of the file, I have found that before closing evidence of defendant on 16.07.1985, he was allowed six adjournments to produce evidence. However, no steps whatsoever, were taken by the defendant No. 1 to produce evidence. The First Appellate Court vide judgment dated 11.02.1986 set aside the judgment of the Trial Court with the direction as follows:

Parties are directed to appear before the trial court on 20.02.1985 on which date the defendants shall deposit the P.F. for summoning of their witnesses, if any, for the date to which case would be adjourned by the trial Court and defendants would be entitled only to one opportunity to produce their evidence.

The Trial Court fixed the case for evidence of plaintiff for 31.03.1986 but on that date, no witness was present and it passed the order as follows:

Present: Shri T.R. Gupta, Advocate, counsel for the plaintiff.

Shri D.K. Mehta, Advocate counsel for defendant No. 1

None is present on behalf of defendant No. 2, who is ordered to be proceeded against ex-parte. Shri A.C. Aggarwal, learned Additional District Judge, Gurdaspur has remanded this case vide his order dated 11.2.1986 whereby only one opportunity has been granted to the defendants to produce their witnesses. The case was received by remand on 20.2.1986 and it was adjourned for today for evidence of defendants at their own responsibility as per the directions of the Appellate Court. No witness of defendants is present today. According to the orders of learned Appellate Court, no other adjournment could be granted to the defendants. To come up on 7.4.1986 for rebuttal evidence of plaintiff and for arguments.

The perusal of the above order shows that the order closing the evidence of defendant No. 1 was passed in the presence of counsel for defendant No. 1. No request was made on the ground of curfew in the city. The list of witnesses to be examined was placed on file of trial Court, but there is nothing to show that the process fee or the diet money for summoning of these witnesses had been filed. The trial Court vide order dated 20.02.1986 had directed the defendant No. 1 to produce the witnesses at own responsibility. On 31.03.1986, even defendant No. 1 was not present for his statement. Even if the plea of defendant No. 1 be believed that there was curfew in the city on 31.03.1986, which prevented him from producing evidence, he could seek further opportunity from the appellate Court by moving application there.

The appellant had, however, moved an application before trial Court for one more opportunity to lead evidence, which was declined and the suit of the plaintiff was decreed vide judgment dated 07.04.1986 passed by the Trial Court and the appeal filed by the plaintiff against the judgment and decree was also dismissed. The above facts have been discussed just to look into the merits of the argument raised by the learned counsel for the appellant. A perusal of the trial Court file shows that the appellant was provided sufficient opportunities to lead evidence. The plea of the appellant that on 31.03.1986 there was curfew in the city, therefore he could not produce any witness, did not find favour with the trial Court or even with the First Appellate Court. Moreover, the execution of the agreement is admitted.

Both the Courts below have recorded a concurrent finding on facts with regard to the execution of the agreement to sell dated 08.07.1982 and 08.02.1983. No substantial question of law arises in this appeal or has been pointed out by learned counsel for the appellant. There is no merits in this appeal and the same is hereby dismissed.