Smt. Savitri Devi vs Smt. Gunja Devi

Valmiki J Mehta, J.—By the present appeal u/s 96 of the Code of Civil Procedure, 1908 (CPC), the Appellant/Plaintiff seeks setting aside of the impugned judgment and decree dated 22.10.1998 whereby her suit for specific performance was dismissed. The trial court has held that the agreement to sell dated 15.5.1991 relied upon by the Plaintiff/Appellant was not genuine and in fact the genuine agreement was the earlier agreement dated 20.3.1991 relied upon by the Respondent and, which was breached by the Appellant /Plaintiff as the required payment was not made under the same. In the two agreements the first-one, relied upon by Appellant being the agreement dated 15.5.1991 and the second one relied upon by the Respondent/Defendant being the agreement dated 20.3.1991, there are fundamental differences by which it is shown that there was no consensus ad idem because whereas the first agreement was for an area of 1250 sq. yard the second agreement was for an area of 1008 sq. yard. Also whereas in the agreement dated 15.5.1991, the consideration payable was Rs. 100/- per sq. yard, in the earlier agreement it was Rs. 600/- per sq. yard. Further, in the agreement relied upon by the Appellant, the buyer was only the Appellant, in the other agreement buyers were Sh. Pritam Das and Sh. Tikam Das. Therefore, the basic requirements of a categorical agreement or an agreed document containing the agreed terms was found not to exist between the parties.

After completion of pleadings, the following issues were framed by the trial court:

Whether the Defendant executed an agreement to sell dated 15.5.91 in favour of the Plaintiff? OPP

Whether the Defendant has received Rs. 50,000/- as earnest money from the Plaintiff on 15.5.91 at the time of execution of the agreement? OPP

Whether the possession of the open land in dispute was handed over to the Plaintiff in part performance of the agreement? OPP

Whether the Plaintiff has been ready and willing to perform her part of the agreement and even ready and willing to do so now? OPP

Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP

Whether the Plaintiff is entitled to the decree of specific performance of the agreement to sell dated 15.5.91? OPP

Whether the Plaintiff is entitled to the decree of damages in the alternative, if so, to what extent? OPP

Whether the Plaintiff is entitled to decree for injunction? OPP

Whether the agreement to sell dated 15.5.91 is a forged document. If so, its effect? OPD

Who committed breach of the agreement if any? Onus on parties.

Relief.

The trial court has very exhaustively examined and given findings on the relevant issues being Issue Nos. 1 and 9 in paras 5 to 7 of the judgment, with which I wholly concur and which read as under:

Onus of proving issue No. 1 was on the Plaintiff and for issue No. 9 was on the Defendant. The Plaintiff examined her attorney Tikam Das as the sole witness. Testimony of Tikam Dass is that on 15th May 91 in his presence Defendant executed the agreement Ex.PW1/2. He identified the signature of Smt. Gunjan Devi Defendant on this document and he stated that payment of Rs. 50,000/- as earnest money was made on that date. His testimony is silent as to who was instrumental in entering into this transaction between the Plaintiff and the Defendant. How Plaintiff came to know about the Defendant''s intention to sell the plot and when negotiation were held etc. On the other hand Defendant has examined D.W.1 Sushiil Kumar and DW 2 Sat Narain. Susheel Kumar is husband of the Gunjan Devi and Sh. Sat Narain is father in law of the Defendant. Both of them have stated that it was property dealers Balkar Singh and Baldev Singh who had called upon them and informed about the intention of Tikam Dass and Pritam Dass to purchase the property. Both of them have stated that they had asked the property dealers to find out buyers and they wanted to sell 1008 sq. yards of the land. This testimony of D.W 1 and DW 2 has gone unchallenged. It is not suggested to either of the witness that Balkar Singh and Baldev Singh were not involved in the transaction or the Plaintiff''s husband and attorney were not introduced to the Defendant''s husband by these property dealers. It is also naturally that two unknown persons cannot come into contract for sale of property unless there is advertisement in the newspaper or there is involvement of property dealers. I therefore come to the conclusion that testimony of P.W.1 was lacking confidence and was not a true account of the transaction. The other facts which throw doubt on the testimony of P.W.1 is that PW1 has stated that agreed rate of land was Rs. 100/- per sq. yd. The land was also having structure of 2 rooms and it has come in the testimony of D.W1 that about Rs. 70,000/- to Rs. 75,000/- was spent on the construction of these two rooms. It is also undisputed fact that the land was purchased by the Defendant in Oct. 89 and thereafter Defendant had put structure on the land. It has not been suggested to D.W 1 that the amount of Rs. 70,000/- to Rs. 75,000/- was not spent on the structure. A person who has spent Rs. 70,000/- to Rs. 75,000/- on the construction of two rooms would not sell the structure free of costs alongwith land at the rate of Rs. 100/- per s. yard.

The other factor which creates doubt on the testimony of P.W.1 is moving of application for ''no objection'' before Tehsil Dar on 14th May 1991, if there was no agreement to sell in existence between the Plaintiff and the purchaser upto 14.5.1991, there would have been no question of making application before the concerned authority for obtaining no objection certificate. The application is dated 13th May 91. It is not the case of the Plaintiff that any talks had taken place between the parties on 13th May 91. His case is that he had drafted the agreement on 14th May 91. One more fact that shows incredibility of testimony of PW 1 is that his first stating that Gunjan Devi signed in his presence and it is stated subsequently that a woman who signed the agreement was in Pardh and he did not know who was the woman.

On the other hand the testimony of D.W 1 and DW2 is very emphatic and natural and their testimony is supported by D.W 3 who was the property dealer in this case. It has gone unrebutted that Baldev Raj was the property dealer. Baldev Raj who has appeared as D.W 3 produced the diary maintained by him, in the court in which he had recorded the transaction. The perusal of the diary would show that entry in respect of the transaction of the land in question was natural entry and it was made in the similar manner as other entries were made in the diary. The ink had faded out due to soiling of all material pages of the diary in the same manner. The entry was natural entry and was not a fabricated entry and in this entry date of agreement has been shown as 20.3.91 and earnest money at Rs. 50,000/-. Rate has been shown as Rs. 600/- per sq. yards and the area to be sold has been shown as 1008 sq. yards. The date of final payment has been shown as 20th May 1991. The testimony of this witness is totally creditworthy and the document produced by him is very natural and maintained during the course of business. Although the witness has stated that he was not having any letter head and not doing business under any name of the firm of property dealer, but that does not discredit his evidence. Moreover the document mark X is photo copy of the original receipt executed between the parties gives support to the version of the Defendant witness. Unless the agreement to sell had been entered between Smt. Gunjan Devi the proposed purchaser, there would have been no question of making application for no objection certificate prior to 15th May 1991. The very fact that application for no objection was made on 13th May 1991 shows that there was an agreement in existence prior to 13th May 1991. The testimony of D.W1 and DW2 is more trustworthy and believable as it shows happening of transaction in the natural manner through property dealer while testimony of P.W.1 is not trustworthy as it is neither natural nor it explains how the Plaintiff came into contract with the Defendant for sale of this property. Moreover it does not seem probable that Defendant would have agreed to sell the land measuring 1250 sq. yard and the structure for a sum of Rs. 1,25,000/-. It is very natural that receipt is always given to the person who pays money and the receiver of the money only retains the copy. Defendant in this case was receiver of the earnest money. She at the time of receiving earnest money had executed the receipt. She had produced a copy of the receipt which is mark X, and the statement of Defendant witness that original of this was with the Plaintiff is believable. I therefore, come to the conclusion that actual agreement to sell in respect of the land was entered on 20th March 1991 and it was in respect of 1008 sq. yards as is recorded in Mark X and in the diary of D.W.3 Ext. DW 3/1, and the earnest money was also paid on 20th March 1991. At the time of paying earnest money, the Plaintiff husband and attorney were negotiator and they gave payment of Rs. 50,000/- without disclosing as to in whose favour they would enter the purchase agreement of the property. Mark X to my mind is the true copy of that receipt which was executed at the time of this transaction and the agreement dated 15th May 91 produced by the Plaintiff in the court is not a genuine agreement which was entered into between the parties. This seems to be created later on by the Plaintiff when the Plaintiff failed to pay the amount within 2 months and failed to obtain "no objection" certificate. I therefore, decide issue No. 1 and 9 accordingly against the Plaintiff and in favour of the Defendant.

The aforesaid findings show the following:

(i) The agreement as relied upon by the Respondent dated 20.3.1991 was in fact the real agreement between the parties and the agreement dated 15.5.1991 relied upon by the Appellant was not a genuine document.

(ii) There was no question of the consideration being only Rs. 100/- per sq. yard when the earlier agreement dated 20.3.1991 stated consideration at Rs. 600/- per sq. yard.

(iii) The fact that the form for obtaining No Objection Certificate (NOC) from the Revenue Authorities was found to have been signed on 13.5.1991, i.e. prior to the agreement dated 15.5.1991 and not disputed by the Appellant, shows that the agreement dated 15.5.1991 being of a subsequent date could not be genuine.

(iv) Whereas the NOC dated 13.5.1991 which was filed by the Respondent being Ex. PW-1/D-1 contained the consideration as Rs. 1,21,000/-, the NO Cs relied upon and filed by the Appellant being Ex. DW-1/P-1 (dated 3.7.1991) and DW-1/P-2 (dated 8.7.1991) contained the consideration as Rs. 1,25,000/- again adding to the discrepancies as to the existence of a valid agreement between the parties.

(v) That, the Appellant has deliberately concealed the original agreement dated 20.3.1991 inasmuch as the original was bound to be with the Appellant as she was the purchaser who had paid a sum of Rs. 50,000/- as evidenced in the Agreement dated 20.3.1991and therefore would have the original agreement with her and the Respondent could only have a photocopy.

To this I may add that there are the following additional points which show the lack of genuineness of the agreement relied upon by the Appellant dated 15.5.1991:

(i) The agreement dated 15.5.1991 mentions that possession was with the Appellant. Possession is one of the most important aspects and a valuable consideration under an agreement to sell. The fact of the matter however is that possession admittedly is with the Respondent, thereby clearly showing that the agreement dated 15.5.1991 is not genuine.

(ii) The agreement dated 15.5.1991 mentions the receipt of payment of Rs. 50,000/- but it is not stated whether such payment was already received, was received simultaneously to the agreement dated 15.5.1991, was received in cash or was received by cheque or pay order/bank draft. Not only that, as per normal practice whenever payment is made under an agreement to sell there is also a receipt simultaneously executed for the amount paid, and which receipt is conspicuous by its absence in the present case, thus again adding to the improbabilities to the genuineness/validity of the Agreement dated 15.5.1991.

I find that the findings given by the trial court are completely in accordance with the law and the facts as found in the present case. There is no perversity or illegality in the findings arrived at by the trial court. Sitting as an Appellate Court, it is not permissible for the court to interfere with a well reasoned and detailed judgment of the trial court merely because another view is possible. I, therefore, do not find any reason to interfere or set aside the findings and conclusions as arrived at by the trial court.

Before this Court, learned Counsel appearing for the Appellant has impugned the judgment of the trial court on the following grounds:

(i) That the agreement dated 20.3.1991 and marked as ''X'' for reference has not been signed by the buyer and hence cannot be said to be an agreement. (I may note that the document in question has been wrongly marked and not exhibited because in the statement of DW-1 this document has been proved. In the evidence of the witness Sushil Kumar, DW-1, firstly, the reason for production of the photocopy in stead of the original has been given that the original was with the Appellant being the natural position of a buyer retaining an original document evidencing the transaction including proof of payment. The witness has also stated that he has signed the receipt and also identified signatures of the Property Dealer Sh. Balkar Singh on the document as a witness . The receipt/agreement dated 20.3.1991 was said to have been duly signed by the executants);

(ii) The Balkar Singh who was the second witness on the agreement dated 20.3.1991 has not been produced as a witness;

(iii) No notice was given under Order XII Rule 8 CPC for production of the original agreement dated 20.3.1991 to the counsel for the Appellant;

(iv) Sh. Baldev Raj, the broker, deposed as DW-3, but, his testimony has no value because he was not a witness who had signed the agreement dated 20.3.1991;

(v) The agreement dated 20.3.1991 was written on a stamp paper which was not purchased by the Respondent and who was bound to pay the stamp duty of the agreement in terms of the provisions of the Stamp Act, 1899. Qua this stamp paper it is also urged that the same was purchased on 25.1.1991 when no negotiations were going on;

(vi) The cross-examination of the Property Dealer DW-3 Sh. Baldev Raj shows that the Agreement dated 20.3.1991 is a forged document, inasmuch as prior to 20.3.1991 the witness DW-3 admits that he did not know Sushil Kumar, husband of the seller-Respondent-Gunjan Devi;

(vii) That the Diary of Baldev Raj filed as Ex. DW-3/1 relied upon by the trial court lacks credibility for being treated as evidence. It is also stated that the Diary was filed after seven years and hence is therefore forged and fabricated; (viii) The NOC''s being DW-1/P-1 and DW-1/P-2 show that all the ingredients of an agreement to sell existed entitling the suit to be decreed.

Before I deal with the contentions and arguments as raised by the Appellant, I note that not even one of the contentions as raised above are found mentioned in the grounds of appeal in a clear/categorical averment. This, I am stating because this Court is not hearing final arguments sitting as a Court of original jurisdiction, and as an Appellate Court, what has to be shown by the Appellant are the alleged shortcomings in the impugned judgment and decree for being set aside which are pleaded as specific grounds. Unless and until, such grounds are specifically taken up in appeal to impugn the judgment, it could not be said that the Appellant was aggrieved against those aspects which are not found in the grounds and are now sought to be raised for the first time. A reference to each of the arguments as raised above shows that even if there were some points which have been urged before the trial court, however, a final decision of a court is after considering the arguments of both the parties and which are ultimately weighed in a scale so as to arrive at a conclusion/decision on the balance of probabilities. Surely, in every case there will be certain pros and cons with respect to the case of each party, however, once all these pros and cons are put in a melting pot for arriving at a conclusion, it cannot be said that the contentions raised by one party must necessarily prevail as against the contentions of the other party which have prevailed. The trial court in the facts of the present case arrived at the findings and conclusions after weighing all the factors as existing in the present case, including the testimonies of the witnesses, the documents, the probabilities, the circumstances and so on. These findings and conclusions of the trial court have already been re-produced above which are not in any manner illegal or perverse to entitle this Court to interfere as an appellate court. Accordingly, unless and until the arguments urged before this Court are such which in themselves would result in the trial court judgment being held to be illegal or perverse, such arguments cannot succeed merely because an alternative view is possible.

Now, let us take the arguments which have been addressed by the Appellants one by one. With respect to the first argument that the agreement dated 20.3.1991 is not signed by both the parties, all that needs to be said is that an agreement in law does not to have to be signed by both the parties. A contract in law can be partly oral, partly in writing, wholly oral or wholly in writing, partly express and partly implied or any of the combinations of the above. The contract in question in the present case is in the form of a receipt which is executed by the seller showing the details of the transaction including the receipt of the advance amount. The identification of the property is there, the area of the property is there, the price is mentioned and also the buyer. Clearly therefore, the agreement dated 20.3.1991 which is marked as ''X'' and in fact is otherwise a proved document and which ought to have been exhibited as a concluded contract in the eyes of law, is a valid contract and it cannot be argued otherwise merely because it is not signed by the Appellant/buyer.

The second argument was that the witness No. 2 of this agreement dated 20.3.1991, namely, Sh. Balkar Singh was not produced. In my opinion, this cannot be said to be a ground which can in any manner upset the finality and conclusiveness of the agreement dated 20.3.1991. It is not a requirement of law that all the witnesses to an agreement must be summoned to prove an agreement if otherwise the same has been proved in accordance with law. In fact, if we accept this argument, then the agreement relied upon by the Appellant /Plaintiff is also liable to fail on this very ground because the Appellant has not lead the evidence of the second witness Sh. Ram Chander Balani in the case.

The argument that no notice was given under Order 12 Rule 8 CPC for production of the Agreement dated 20.3.1991 is a self defeating argument because the case of the Appellant was that no original Agreement dated 20.3.1991 exists. Also as per the second proviso to Section 66 of the Indian Evidence Act, 1872 no notice is required because the Appellant knew that he was required to produce the Agreement dated 20.3.1991.

The argument that the stamp paper on which the agreement dated 20.3.1991 has been written was purchased in the name of Sh. Ram Swarup would at best mean that the stamp paper was purchased by one Ram Swarup. However, it is not the requirement of the Stamp Act that stamp value of the transaction by means of a stamp paper must only be purchased by a party to transaction. I have not found any such provision in the Stamp Act. The relevant provision in the Stamp Act pertains only to the person who is legally liable to pay the stamp duty, however, this cannot mean that if someone-else, other than a party to a transaction pays the stamp duty and purchases the stamp paper the transaction would be liable to be struck down on this ground.

The argument that the admission of witness DW-3 that he did not know Sushil Kumar (husband of Respondent) prior to 20.3.1991 should be treated as conclusive and lack of credibility of a witness is again an argument devoid of merits. This argument has no legs to stand upon because it is not inconceivable that a transaction may well go through at the very first day when it is being negotiated. In any case, merely because two views are possible, cannot mean that the statement of the witness should not be believed, when the same has been believed by the trial court.

So far as the issue of the validity of the Diary which had been relied by the trial court being Ex. DW-3/1 to show that it is a natural document, I wholeheartedly agree with the findings of the trial court because I have myself seen this Diary and even a cursory reference to the same shows that it is a genuine document and there is nothing unnatural or fabricated about the same. It is an entire Diary in which transactions appear to have been noted in it on some pages in a particular system which the person who maintained the Diary thought it fit. I, therefore, reject the argument that the evidence of the Diary DW-1/3 ought to be rejected. Once again even if two views are possible, this Court will not interfere with the findings arrived at by the trial court because the findings of the trial court cannot be said illegal or perverse in having relied upon in Diary DW-1/3.

The last argument is based upon the fact that the document Ex. PW-1/D-1 dated 13.5.1991 has all the ingredients of an agreement to sell and being filed by the Respondent/Defendant themselves are enough to prove the transaction in question. In fact, in my opinion, this argument is almost like the answer begging the question because whereas this document is of 13.5.1991, the agreement relied upon by the Appellant is dated 15.5.1991. In fact, all these aspects have been gone into in detail by the court below to hold that the agreement dated 15.5.1991 is not a genuine document and the same was fabricated by the Appellant to overcome the breach of his obligations under the original document dated 20.3.1991. Also, the argument raised on the basis of documents dated DW-1/P-1 and DW-1/P-2 being the NO Cs dated 3.7.1991 and 8.7.1991, is not an argument which can in any manner shake the fact that there was in fact a valid agreement dated 20.3.1991 and that the agreement dated 15.5.1991 is a manipulated/fabricated document. In any case, various evidences have been balanced by the trial court and a finding arrived at, as required in a civil case on balance of probabilities. Therefore, I do not find that the judgment of the trial court should be interfered with on this basis at all.

In view of the above, I uphold the impugned judgment and decree and its findings and conclusions to hold that the Plaintiff is not entitled to specific performance. In my opinion, in a case such as the present where there is confusion and lack of clarity with regard to price, the area and the parties to a transaction, there ought not to be granted specific performance because the same would result in irreparable and grave prejudice to the Respondent. Specific performance of contract is granted only on the basis of clear cut agreement and established breaches thereof, besides the facts that equities of the transaction demand that specific performance is required to be granted. The facts and the circumstances in the present case are such that the trial court is justified in passing the impugned judgment and decree dismissing the suit for specific performance. The present appeal is, therefore, dismissed, leaving the parties to bear their own costs.

Trial court record be sent back.