Sippi Devi vs Laja Devi

Kuldip Singh, J.—The defendant is in second appeal against judgment, decree dated 8.11.2011 passed by learned Additional District Judge, Mandi Camp at Karsog, in Civil Appeal No. 75 of 2010 affirming judgment, decree dated 18.1.2008 passed by learned Civil Judge (Senior Division), Karsog in Civil Suit No. 79 of 2006. The facts in brief are that the respondent had filed a suit for specific performance of contract on the basis of agreement dated 8.3.2003 Ex.PW-1/A alleging that the appellant had agreed to sell land measuring 1 bigha out of the land comprised in Khasra No. 64/33, measuring 3-5-16 bighas (hereinafter referred to as ''suit land'') Mohal Khadoni, to respondent for a consideration of Rs. 38,000/-. The respondent also claimed damages for improvements carried out by her over the suit land.

The further pleaded case of the respondent is that agreement dated 8.3.2003 was executed between the parties for selling the suit land for consideration of Rs. 38,000/-. The respondent had paid full sale consideration to the appellant. The possession was also handed over to the respondent. The appellant agreed to transfer the suit land by way of sale deed after clearing the bank loan which was taken by her from H.P. State Co-operative Bank, Churag after selling the apple crops within a period of 5-6 months. The appellant did not execute the sale deed as agreed by her even after notice dated 5.9.2006. The respondent is ready and willing to perform her part of the contract.

The suit was contested by the appellant by filing written statement. She took preliminary objections such as the suit is not on proper form, limitation, the suit land was given to her as Nautor by the Government, it cannot be sold and the suit has not been properly valued for the purposes of court fee and jurisdiction. On merits, the appellant contended that she never agreed to sell the suit land to respondent, only slight adjustment on the boundary of land was agreed between the parties. The respondent is a clever woman and wants to cheat the appellant. The respondent is in the habit of giving false notices. The claim of the respondent was denied. The replication was filed.

On the pleadings of the parties, the following issues were framed:--

Whether the plaintiff is entitled for the decree of specific performance as prayed? OPP

Whether the plaintiff is entitled to recover an amount of Rs. 38,000/- from the defendant? OPP

Whether the suit is not in proper form against the defendant? OPD

Whether the suit is barred by limitation? OPD

Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD

Relief.

The issue No. 1 was answered in affirmative, issues No. 2, 3 and 5 in negative and issue No. 4 was not pressed. The trial Court decreed the suit on 18.1.2008, the appellant was directed to execute the sale deed as per agreement Ex.PW-1/A. The appeal filed by the appellant against judgment, decree dated 18.1.2008 has been dismissed by learned Additional District Judge on 8.11.2011, hence second appeal.

I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that the stamp paper is of the year 1997 on which the agreement dated 8.3.2003 was allegedly executed. PW-2 Bhagat Ram scribe of the agreement is none else but is the husband of the respondent. The witnesses of the agreement were also procured by the scribe and they are interested persons. The respondent is a clever woman. The appellant has been duped by the respondent in connivance with scribe and witnesses of the agreement. The learned Courts below have misconstrued the evidence in decreeing the suit. The learned counsel for the respondent has submitted that the two Courts below have recorded findings of facts. No substantial question of law is involved in the appeal. The evidence cannot be re-appreciated. He has supported the impugned judgment and decree.

Ex.PW-1/A is the agreement dated 8.3.2003, as per this agreement the appellant has agreed to sell land measuring 1 bigha out of khasra No. 3-5-16 to respondent for a consideration of Rs. 38,000/-. It has been stated in the agreement that the possession of the land has been handed over to respondent and sale consideration has been received. The respondent agreed to execute and register the sale deed after 5-6 months. The land is mortgaged with H.P. State Co-operative Bank, Churag which would be cleared after the sale of the apple crop and thereafter the sale deed would be executed. The agreement bears the signatures of the appellant and witnesses Shiv Kumar and Puran Chand Sharma.

The appellant in the written statement took objections of limitation, land was allotted to her by Government in Nautor and therefore, cannot be sold, suit has not been properly valued for the purposes of court fee and jurisdiction and the suit is not on proper form. On merits, the appellant has pleaded that she never agreed to sell her land but slight adjustments on the boundaries of the land were agreed between the parties. The respondent is a clever woman and wants to cheat illiterate appellant. In the written statement, there is no plea of fraud, misrepresentation, undue influence. The appellant has not altogether denied the agreement. She has pleaded that slight adjustments on the boundaries of the land were agreed between the parties. In M/s. Gian Chand and Brothers and Another Vs. Rattan Lal @ Rattan Singh, , it has been held that denial should be specific. There is no specific denial that appellant did not receive Rs. 38,000/- sale consideration.

PW-1 Laja Devi has stated that appellant had agreed to sell 1 bigha land vide agreement dated 8.3.2003 Ex.PW-1/A for a consideration of Rs. 38,000/- which amount was paid to appellant on the date of agreement. The possession of the land was handed over by the appellant to the respondent on the date of agreement. The sale deed was to be executed after clearing the bank loan and realisation of the apple crop 5-6 months after the execution of the agreement. She has proved notice Ex.PW-1/C. In cross-examination, PW-1 has stated that Puran Chand Sharma, witness is her distant relation so also Shiv Kumar.

PW-2 Bhagat Ram is the husband of the respondent. He has stated that agreement Ex.PW-1/A was scribed by him. The agreement is between his wife and appellant and was written at the instance of the appellant. Ex.PW-1/A was read over and explained to appellant. The sale consideration was paid to appellant on the same date. She handed over the possession also on that date. The appellant put her signatures on the agreement. In cross-examination, he has stated that he had purchased 1 bigha land from appellant 7-8 years ago. He denied that Ex.PW-1/A is false and no amount was paid by the respondent to the appellant.

PW-3 Puran Chand has stated that agreement Ex.PW-1/A was scribed in his presence by Bhagat Ram. He put his signatures on the agreement. The agreement is for 1 bigha of land. The sale consideration of Rs. 38,000/- was paid by the respondent to appellant in his presence. Ex.PW-1/A was read over and explained to the appellant and thereafter she signed the agreement. In cross-examination, he denied that no sale consideration was paid.

DW-1 Sippi Devi has stated that she had sold 1 bigha land to Bhagat Ram. She had received Rs. 38,000/-. She has not put her signatures on Ex.PW-1/A. Puran Chand is brother-in-law of Bhagat Ram and Shiv Kumar is a relative. The stamp paper was purchased on 21.3.1997 and agreement Ex.PW-1/A was written on 8.3.2003. Bhagat Ram had purchased 1 bigha land from her about 8-10 years ago. 1 bigha land was mortgaged with Co-operative Bank. She reiterated that she had received Rs. 38,000/-. She had received notice Ex.PW-1/C. She handed over the possession of one bigha land to Bhagat Ram. DW-2 Faini has stated that Puran Chand is brother of respondent and Shiv Kumar is a relative of Bhagat Ram.

DW-1 Sippi Devi in her statement has tried to project the case that 8-10 years ago she sold 1 bigha land to Bhagat Ram, husband of the respondent and thereafter no agreement was executed for sale of any land to respondent. There is no foundation in the written statement of an earlier sale. On the contrary in the written statement, it has been pleaded that appellant had agreed slight adjustments on the boundary of the land with respondent. DW-1 in the Court has admitted receipt of Rs. 38,000/-. She has also admitted handing over of possession to Bhagat Ram. There is nothing on record that earlier appellant had sold 1 bigha land to Bhagat Ram for Rs. 38,000/-.

It has been contended that stamp paper is of the year 1997 on which agreement Ex.PW-1/A was written in the year 2003. No statutory bar for writing an agreement over such stamp paper has been pointed out. It has been submitted that witnesses of the agreement are relatives of the respondent, but the agreement cannot be thrown out merely on this ground. No stranger or unknown person can be expected to be a witness on a document of this nature, only a friend, old acquaintance or relative is expected to be a witness. The two Courts below have appreciated the pleadings and evidence. The inference drawn by the two Courts below emerges from the evidence on record. In second appeal the evidence cannot be re-appreciated. The impugned judgment and decree are based upon pure findings of facts. No substantial question of law is involved in the appeal. Accordingly, the appeal is dismissed with no order as to costs. The pending applications are also disposed of.