Smt. Bhoti and Others vs Baldev and Others

Vijender Singh Malik, J.—This regular second appeal has been brought by defendants No. 2 and 3, to whom the land allegedly agreed to be sold by Sombir, defendant No. 1 to plaintiff Baldev, was sold subsequent to the execution of the agreement of sale. Baldev filed a suit for possession by way of specific performance of the agreement of sale dated 14.2.2006. This agreement was preceded by another agreement which merged into this agreement. The suit was originally brought against Sombir but as after filing of the suit, defendant No. 1 sold the property in favour of defendants No. 2 and 3, the appellants, they were impleaded in the suit. Suit was decreed by learned Additional Civil Judge (Senior Division), Kaithal vide judgment and decree dated 8.3.2011. The appeal preferred by the appellants against the said judgment failed before learned District Judge, Kaithal vide judgment and decree dated 27.4.2013. Stating in brief, the case of Baldev had been that defendant No. 1 was owner of land measuring 23 kanals 16 marlas which was agreed to be sold by him to the plaintiff for a consideration of Rs. 8,03,250/- out of which a sum of Rs. 2,50,000/- was paid as earnest money on two occasions. On the target date, Baldev went to the office of Sub Registrar and kept waiting for Satbir, but he did not turn up. It was agreed that in case the defendant failed to execute the sale deed, the plaintiff would be at liberty to get the sale deed executed through court of law.

Defendant No. 1, besides taking a number of preliminary objections regarding maintainability of the suit, locus standi of the plaintiff to file the suit etc. had averred that he did not execute the agreement of sale. He claimed that he was kidnapped by the plaintiff and others and was kept in confinement for 10 days during which he was kept under intoxication and was forcibly made to thumb mark some blank papers, blank stamp papers and blank revenue stamps affixed on a paper as also on a register. He claimed that he filed a complaint against the above mentioned persons which was sent u/s 156(3) Cr.P.C. and FIR came to be registered with regard to that.

Since defendant No. 1 sold the land in question to the appellants during the pendency of the suit, they were impleaded and they have claimed themselves to be bona fide purchasers of the land for valuable consideration without notice of the agreement in favour of the plaintiff.

The parties went to trial on the following issues:-

Whether the defendant has entered into an agreement to sell his share on 14.2.2006 @ Rs. 2,70,000/- per acre? OPP

Whether the defendant has received Rs. 2,50,000/- as earnest money? OPP

Whether the plaintiff is always ready and willing to perform his part of the contract? OPP

Whether the defendant No. 2 and 3 are bonafide purchasers vide sale vasika No. 1732/1 dated 19.12.2006? OPD

Whether the suit of the plaintiff is not maintainable? OPD

Relief.

The parties led their respective evidence. Hearing learned counsel for the parties, learned trial court found the agreement to have been duly proved as executed by defendant No. 1 whose plea was found to have not been proved. It may be mentioned here that Sombir, defendant No. 1 died during the pendency of the suit and his L.Rs. have been brought on record. Collusion on the part of the plaintiff and heirs of Sombir [deceased] was claimed on behalf of defendants No. 2 and 3-appellants. In these circumstances, the suit succeeded and was decreed as mentioned above. The appeal brought by defendants No. 2 and 3 had failed before learned District Judge, Kaithal on 27.4.2013.

Aggrieved by the aforesaid judgments of the courts below, defendants No. 2 and 3 have brought this appeal.

Learned counsel for the appellants has submitted that the case set up by Sombir was not false. According to him, he was, in fact, kidnapped and was made to thumb mark certain papers on which the agreement of sale was prepared. According to him, on the basis of the complaint made by him, the FIR was registered. He has further submitted that the same was cancelled because Sombir died subsequently and his L.R. Sonu colluded with plaintiff Baldev.

Learned counsel for the appellants has further submitted that collusion between Baldev and Sonu is evident from the fact that Sonu appeared as DW-1 and has stated the case set up by his father in his examination-in-chief, but has changed his version in his cross examination. According to him, Sombir was not illiterate. The fact that his thumb impressions had been there on the agreement would show that the thumb impressions were obtained from him in the manner as alleged by him in his written statement.

It is a fact that the appellants are the purchasers of the land during the pendency of the suit and learned trial court has rightly held that they cannot take the plea of bona fide purchasers. The question is as to whether after the death of Sombir, his heirs colluded with Baldev. The circumstances on the record do not support this fact. There has been clear and cogent evidence on the record in the statement of PW-5 and PW-6 who say that the agreement was executed in their presence. Mere fact that an educated person affixed his thumb impression would though be a matter of concern, yet would not be sufficient to discredit the case of execution of the agreement. Sonu, the son of the deceased Sombir [defendant No. 1] had not been a witness to the alleged incident of kidnapping of Sombir or any other thing. He cannot be said to have taken a U-turn in his cross-examination. This does not show any collusion between Baldev and the heirs of Sombir.

It is, moreover, a case where defendants No. 2 and 3 - appellants did not step into the witness box. Adverse inference was rightly held to be available against their case. Learned trial court has taken into account the fact that before issuance of notice to Sombir by Baldev, he should not have come to know the nature of the document created on the blank papers on which thumb impressions of Sombir were obtained. According to learned trial court, Sombir alleged that the agreement of sale was created on those documents which was taken as sufficient to show that he himself was knowing it well that he has executed an agreement of sale. Nothing of substance has been argued by learned counsel for the appellant to assail the concurrent findings of the courts below. Learned courts below have appreciated the evidence properly and have properly applied the law thereto. Therefore, I do not find any substantial question of law arising in this appeal. Consequently, the appeal has no merit and is dismissed in limine.