Sita Rani vs Vijay Singh and Another

Rakesh Kumar Garg, J.—Defendant No. 2 (now appellant), who claims herself to be the owner of the suit property on the basis of a sale deed dated 24.08.2000 executed in her favour by respondent No. 2 (defendant No. 1 in the suit), has filed the instant appeal challenging the judgment and decree of the trial Court dated 19.12.2009 whereby suit of the plaintiff-respondent No. 1 for possession of the suit property by way of specific performance of the agreement dated 24.01.2000 executed by defendant No. 1 (now respondent No. 2) in his favour has been decreed and the judgment and decree dated 23.10.2012 of the first appellate Court whereby appeal filed by defendant No. 2 (now appellant) against the aforesaid judgment and decree of the trial Court has been dismissed. In nutshell, case of the plaintiff-respondent No. 1 is that respondent No. 2 executed an agreement to sell dated 24.01.2000 in his favour to sell the suit property for a total sale consideration of Rs. 3,50,000 and received a sum of Rs. 2,50,000 as earnest money at the time of agreement. It was stipulated in the agreement that sale deed would be executed by her on receipt of the balance sale consideration on 30.04.2000. On 30.04.2000, another amount of Rs. 50,000 was received by respondent No. 2 and the date for execution of the sale deed was extended upto 31.05.2000. Thereafter, with their mutual consent, the date for execution of the sale deed was further extended upto 31.07.2000. As per the plaintiff-respondent No. 1, he always remained ready and willing to perform his part of the agreement but respondent No. 2 failed to do so; rather on 24.08.2000 she transferred the property in favour of the appellant for a total sale consideration of Rs. 1,10,000 by way of a fraudulent transaction. Hence, necessity arose to file the instant suit.

In her written statement, respondent No. 2 admitted the material averments made by plaintiff-respondent No. 1 regarding execution of the agreement to sell dated 24.01.2000. It was further submitted that the appellant got the sale deed executed from her under compulsion and without payment of any consideration. It is the further case of respondent No. 2 that she had apprised the appellant regarding execution of the agreement to sell of the property in question in favour of respondent No. 1.

In her written statement, the appellant raised various preliminary objections. It was further submitted that the agreement between plaintiff-respondent No. 1 and respondent No. 2 was the result of each other''s connivance. Respondent No. 2 had already entered into an agreement dated 15.11.1999 with the appellant for the sale of her share in the shop in dispute for a consideration of Rs. 1,10,000. Even register of the Stamp Vendor was signed by respondent No. 2 and one Gulshan Kumar was the mediator between them for the transaction. Thereafter, when the sale deed was got prepared, the agreement was taken away from her on the ground that the same was no longer required. Subsequently, in connivance with the above said Gulshan Kumar and plaintiff-respondent No. 1, the instant agreement was prepared with a view to defeat her rights. On merits, it was stated by the appellant that she was not aware of any such agreement to sell between the plaintiff-respondent No. 1 and respondent No. 2. While relying upon the sale deed dated 24.08.2000 in her favour, which was for a valuable consideration of Rs. 1,10,000 and controverting the other material averments, the appellant prayed for dismissal of the suit.

In his replication to the written statement filed on behalf of the appellant, plaintiff-respondent No. 1 controverted the averments made by the appellant and reiterated his version given in the suit. On the pleadings of the parties, the following issues were framed by the trial Court for consideration:

Whether defendant No. 1 executed an agreement to sell dated 24.1.2000 regarding 1/2 share in suit land bearing No. CS-10/15 in favour of the plaintiff? OPP

1A. Whether plaintiff remained ready and willing and is still ready and willing to perform his part of contract? OPP

Whether agreement to sell is anti-dated and is the result of fraud? OPD

Whether defendant No. 2 purchased the suit property against sale deed bearing registration No. 3252 dated 25.8.2000? OPD

Relief.

Thereafter, the trial Court afforded opportunities to the parties to lead their evidence and the parties led oral as well as documentary evidence to prove their respective cases.

After hearing learned counsel for the parties and perusing the record, the trial Court decreed the suit of the plaintiff-respondent No. 1 with costs. While decreeing the suit, the trial Court on appreciation of evidence found that execution of the agreement in question and receipt of an amount of Rs. 2,50,000 as earnest money and further receipt of Rs. 50,000 by respondent No. 2 and extension of the due dates for execution of the sale deed stood duly proved and the plaintiff-respondent No. 1 had also successfully proved that he was always ready and willing to perform his part of the agreement.

At this stage, it is also relevant to refer to the observations made by the trial Court while rejecting the case as put up by the appellant, which read thus:

As it is apparent from the above discussion, there is no dispute regarding the fact that defendant No. 1 Rupali Sethi was the owner of the property in dispute. In her own written statement to the plaint, the defendant No. 1 has admitted that she had entered into an agreement for the sale of the property in dispute in favour of the plaintiff. She has virtually admitted the entire case of the plaintiff and has blamed the defendant No. 2 for having got executed a sale deed in respect of the suit property from her by pressurizing her. The evidence available on record also reveals that prior to the institution of the suit, the sale deed in respect of the suit property had been executed in favour of the defendant No. 2 on 24.8.2000 for a consideration of Rs. 1,10,000/-. The defendant No. 2 has also taken the plea as if the defendant No. 1 had entered into an agreement for sale of the suit property in her favour on 15.11.99. The said agreement has however not been brought on record. Even any mention of the above said agreement is not to be found made in the sale deed dated 24.8.2000 (Ex.P3). The evidence of the Handwriting and Finger Prints Expert Sanjiv Sharma (PW-3) does not offer any help to the defendant No. 2 because the defendant No. 1, by whom the sale deed is stated to have been executed in favour of the defendant No. 2, has herself not denied her signatures on this sale deed (Ex.P3). Similarly, the evidence of Raj Kumar (DW-2) does not offer any help to the case of the defendant No. 2 because these entries purported to be bearing serial numbers 2269 and 2270 in his register, are the last entries of the relevant page and the serial numbers thereof also appear to have been changed, from 1269 to 1270 to read as 2269 to 2270 respectively. No documentary evidence worth the name has been brought on record by the defendant No. 2 regarding the payment of the sale consideration. It is also pertinent to mention that the agreement of sale in respect of the same very property in favour of the plaintiff was for a consideration of Rs. 3,50,000/- whereas the sale deed which has been executed in favour of the defendant No. 2 at a subsequent stage on 24.8.2000 was stated to be for a consideration of Rs. 1,10,000/- only. In addition thereto, defendant No. 2 Sita Rani has herself not stepped into the witness box and her son and attorney Nand Kishore Narang (DW-2A) has admitted during his cross-examination that he had not accompanied his mother Sita Rani (defendant No. 2) at the time of execution of the sale deed in favour of the latter. Even if it is assumed that the defendant No. 2 had returned the agreement of sale dated 15.11.99 in her favour to the defendant No. 1, there was nothing, which could have prevented the parties concerned to at least to make a mention of the said agreement in the sale deed dated 24.8.2000, especially when till that time Sita Rani (defendant No. 2) herself was in possession of the said agreement. In addition thereto, the defendant No. 2 has heavily relied on Gulshan Kumar, but he has also not been examined. Nand Kishore Narang (DW-2A) has admitted that they were having a money transaction with defendant No. 1 Rupali Sethi and she was liable to pay some money to them. He has also not denied the suggestion put to him to the effect that the market value of the suit property is about 5-6 lacs. He has also admitted that no receipt regarding the payment of the sale consideration had been received from Rupali Sethi (defendant No. 1). Even Parmjit Singh, who was stated to be present along with Gulshan Kumar at the time of the alleged payment, has also not been examined or even summoned to appear as a witness in this case.

Feeling aggrieved from the aforesaid judgment and decree of the trial Court, defendant No. 2 filed an appeal before the first appellate Court, which was also dismissed.

Still not satisfied, defendant No. 2 has filed the instant appeal submitting that the following substantial questions of law arise for consideration of this Court:

(a) Whether the plaintiff is entitled to the relief of specific performance when it is proved that plaintiff and defendant No. 1 had connived with each other with a motive to defeat the right of defendant No. 2?

(b) When there are repeated extensions of stipulated dates for registration of the sale deed without any sufficient cause or reason, whether the plaintiff is entitled to the relief of specific performance?

(c) Whether the plaintiff is entitled to specific performance when his act and conduct proves that he has not come to the Court with clean hands and is guilty of submitting false facts in the Court?

(d) Whether the sale deed in favour of defendant No. 2 can be held to be without consideration when the said sale deed has not been challenged by defendant No. 1 till date in a competent Court of law?

(e) Whether presumption of truth is attached to the endorsements made by Sub Registrar on the sale deed in favour of defendant No. 2 as per Section 59 and 60 of Registration Act?

(f) Whether the non appearance of defendant No. 2 in the witness box pales into insignificance when the plaintiff has failed to prove that he was entitled to the relief of specific performance?

(g) Whether the defendant No. 2 is a bonafide purchaser for valuable consideration without notice and knowledge of the alleged agreement of sale in favour of the plaintiff?

In support of his case, learned counsel for the appellant has vehemently argued that findings of the courts below on issue No. 3 are illegal and are liable to be set aside as the appellant had taken a specific plea that she had purchased the suit property for a valuable consideration of Rs. 1,10,000 vide registered sale deed dated 24.08.2000 i.e. much prior to the filing of the instant suit and in the absence of any challenge to the said sale deed and the fact that appellant had no notice of the alleged agreement to sell dated 24.01.2000 executed by respondent No. 2 in favour of respondent No. 1, it has to be held that the appellant is bonafide purchaser of the suit property for a valuable consideration and suit for specific performance of the alleged agreement to sell in question, even if the same stood proved, could not have been decreed in favour of the plaintiff-respondent No. 1. According to learned counsel for the appellant, the sale deed executed in favour of the appellant is a registered document to which a presumption is attached in respect of the validity of the sale deed, which has not been controverted in the present case. Moreover, it was not mandatory for the Court to grant a relief of specific performance which is an equitable relief and keeping in view the facts and circumstances of the case, which clearly proves collusion of the plaintiff-respondent No. 1 and respondent No. 2, the plaintiff was not entitled to a decree of specific performance.

Learned counsel for the appellant has further argued that in the instant case, there is ample evidence to prove that there was an agreement dated 15.11.1999 executed in favour of the appellant by respondent No. 2 which was prior in time and thus, the sale deed was executed in her favour legally. It has been further argued on behalf of the appellant that the courts below have erred at law while rejecting the evidence brought forth by the appellant by producing DW2 Raj Kumar Stamp Vendor, who brought his register and proved his entries regarding purchase of stamp papers by Rupali Sethi (respondent No. 2); and further her signatures were duly proved by the Handwriting and Fingerprint Expert Sanjeev Sharma (DW-3) by his report Ex.DW3/B and thus, it stands proved that the agreement in question dated 24.01.2000 has been ante-dated and prepared by the respondents in collusion with each other to defeat the rights of the appellant. Learned counsel for the appellant has further argued with vehemence that case of the respondents is further falsified from the facts that no complaint of any kind was filed against the appellant by them with any of the authorities regarding illegal pressure put upon respondent No. 2 by the appellant, as alleged.

On the basis of the aforesaid arguments, it has been prayed that judgments and decrees of the courts below are liable to be set aside and suit of the plaintiff-respondent No. 1 be dismissed with costs.

I have heard learned counsel for the parties and perused the impugned judgments and decrees of the courts below.

At the outset, it may be noticed that execution of the agreement in question dated 24.01.2000 in favour of respondent No. 1 by respondent No. 2 for sale of the property in question is not in dispute, as respondent No. 2 has admitted execution of the said document and receipt of earnest money and further willingness of the plaintiff-respondent No. 1 for performance of his part of the agreement in question. Even the appellant has not raised any argument with regard to the execution of the agreement in question and willingness and readiness of the plaintiff-respondent No. 1 for performance of his part of the agreement.

However, the appellant has put up her case submitting that she is the bonafide purchaser of the suit property vide a registered sale deed dated 24.08.2000 executed by respondent No. 2 for a valuable consideration of Rs. 1,10,000 in her favour on the basis of a prior agreement dated 15.11.1999 executed in her favour by respondent No. 2 and without any notice of the agreement to sell in question dated 24.01.2000 to her, which has been prepared by the respondents in connivance with each other to defeat her rights. Whereas, a perusal of the impugned judgments and decrees of the courts below would show that the appellant has miserably failed to prove her case as set up by her; and in fact, the evidence produced by her in support of her case itself falsifies her case. It is a matter of record that the appellant has taken a plea that defendant No. 1 (respondent No. 2) had entered into an agreement for sale of the suit property in her favour on 15.11.1999, i.e. prior in time; however, the said agreement has not been brought on record. Even no mention of the above said agreement has been made in the sale deed dated 24.08.2000 (Ex.P3).

The evidence of Handwriting and Fingerprint Expert Sanjeev Sharma does not support the case of the appellant as admittedly the said Handwriting and Fingerprint Expert had not taken signatures from the original Power of Attorney and has prepared his report on the basis of samples taken from the alleged photocopy of the said Power of Attorney. Not only this, he has further admitted that proper report cannot be prepared from the samples taken from photocopy of the signatures. Moreover, report of the Handwriting and Fingerprint Expert was not prepared with the permission of the Court. Even original of the said Power of Attorney was not produced in the Court. The appellant has neither made any effort to bring on record the original agreement, nor any marginal witness of the agreement dated 15.11.1999 has been produced. In view of the aforesaid facts, simply because there are signatures of respondent No. 2 in the register of the Stamp Vendor execution of the General Power of Attorney and the agreement to sell dated 15.11.1999 in favour of the appellant is not proved. The courts below, on appreciation of evidence, have further found that Nand Kishore Narang, Attorney of the appellant, who has stepped into the witness box, is not clear even with regard to payment of Rs. 1,10,000 as sale consideration of the alleged sale deed dated 24.08.2000. It may further be noticed that respondent No. 2 in her testimony has clearly deposed that she executed the sale deed in favour of the appellant under pressure and no consideration of Rs. 1,10,000 was paid to her. In view of the aforesaid evidence on record, no fault can be found with the findings of the Courts below that the sale deed dated 24.08.2000 was executed by respondent No. 2 without consideration and under pressure of the appellant. In view of the aforesaid facts established on record, the plea of the appellant that no such complaint was made by respondent No. 2 before any of the authorities, is not of any significance. Once the plea of the appellant, as put forth that she is a bonafide purchaser of the suit property on the basis of sale deed dated 24.08.2000 for valuable consideration on the basis of a prior agreement dated 15.11.1999, is found to be false; no weightage can be given to the argument of learned counsel for the appellant that the relief of decree of specific performance is an equitable relief and the trial Court should not have granted the same in favour of the plaintiff-respondent No. 1 keeping in view the execution of the sale deed in question, the execution of which is not under challenge.

Since under issue No. 3, it has been found that the aforesaid sale deed dated 24.08.2000 does not affect the rights of the plaintiff-respondent No. 1 in relation to the agreement to sell in question and that the sale deed dated 24.08.2000 cannot be construed to be detrimental to the interest of plaintiff-respondent No. 1; the argument that the said sale deed has not been challenged, is of no consequence.

Thus, taking into account totality of circumstances, the courts below were justified in holding that the plaintiff-respondent No. 1 was entitled to a decree of specific performance and the agreement dated 24.08.2000 in his favour was validly executed by respondent No. 2.

Accordingly, I do not find any error in the impugned findings of the courts below. No question of law much less substantial arises in this appeal. Dismissed.