Suraj Mal vs Zahoor Khan and Others

A.S. Nehra, J.—This is an appeal against the judgment and decree dated 1.2.1988 passed by the Additional District Judge, Gurgoan by which the appeal filed by the defendant was dismissed and judgment and decree passed by the trial Court on 20.11.1985 was upheld.

The facts of the case, in brief, are that on 26.5.1980, plaintiff-respondent No. 1 Zahoor Khan filed a suit for specific performance of contract of sale against the defendant-appellant Suraj Mai, with the allegations that the defendant was the owner of the land, described in Para No. 1 of the plain and that vide agreement dated 6.10.1978, the defendant had agreed to sell the suit land to the plaintiff for a consideration or Rupees two lakhs. It was further alleged that at the time of execution of the said agreement, the defendant had taken a sum of Rs. 1,23,100/- from the plaintiff towards the advance sale price and it was agreed that an amount of Rs. 66,900/- was to be adjusted towards the mortgage amount for which the land stood already mortgaged while the remaining amount of Rs, 10,000/- was to be paid before the Sub Registrar at the time of the registration of the sale deed. It was further alleged that as per the said agreement, the sail! deed was to be got executed and registered up to 15.6.1979. It was further alleged that under the rules, a no objection certificate is required from the office of Income Tax Department in case a sale deed of the amount of more than Rs. 50,000/- is to be got registered arid in this regard, a no objection certificate'' was applied for by the defendant and it was represented that as soon as, no objection certificates was issued, he would get the sale deed executed and registered in favour of the plaintiff and on this representation, the plaintiff kept on waiting for the completion of the said contract. It was alleged that the plaintiff was always ready and willing and was still ready and willing to perform his part of the contract and to pay Rs. 10,000/- towards the balance amount to the defendant besides stamps and registration charges. It was further alleged that now the defendant had backed out from the said agreement and had intentionally not obtained ''no objection certificate'' from the Income Tax Department and the defendant was not ready and willing to perform his part of contract and had in fact refused to execute the sale deed and started negotiations for the sale of the suit land to a third person. It was, accordingly, prayed that a decree for specific performance of the agreement of sale dated 6.10.1976 be passed in favour of the plaintiff and against the defendant. Subsequently, the plaintiff amended the plaint and impleaded defendant-respondent Nos. 2 to 5 as defendants in the suit, since Suraj Mai defendant-allegiant had executed a sale deed dated 22.7.1980 in favour of defendant Nos. 2 to 5 in respect of a part of the suit land, as described in para No. 5-A of the amended plaint, after the filing of the present suit and it was alleged that the said sale made by defendant No, 1 in favour of defendant Nos. 2 to S with respect to a part of the suit land for Rs. 48,000/- was not binding on the plaintiff and the said sale would not affect the rights of the plaintiff and the said defendant Nos. 2 to 5 were also bound by the agreement in favour of the plaintiff,

The said suit was contested by the defendants, Suraj Mai defendant-applicant, in the written statement prior to the amendment of the plaint, took up various preliminary objections and on merits, it >vas denied that the defendant had ever agreed to sell the suit land in favour of the plaintiff for a sum of Ruppes two lakhs or that the defendant had taken sum of Rs. 1,23,100/- from the plaintiff as advance or the he had agreed to adjust the mortgage amount or that the remaining amount of Rs. 10.00GA was to be paid before the Sub Registrar. On the other hand, it was pleaded that the financial position of the plaintiff was bad and several suits for the recovery of small amounts had been decreed against him and his own land had been under attachment in execution of these decrees and he himself was in heavy debts and was not in a position to make advance payment of Rs. 1,23,100/-. It was alleged that the plaintiff was a Sarpanch and was in the habit of creating false evidence and it was alleged that the agreement in question was a forged document and the defendant had never conciously executed the same. It was further alleged that the story regarding the ''no objection certificate'' from the Income Tax Department had also been set up to cover up the long delay. It was denied that the defendant ever represented to secure the no objection certificate from the Income Tax Department or that the plaintiff kept on waiting. It was further alleged that the question of willingness etc. on the part of the plaintiff did not arise. It was further alleged that the question of the defendant''s being ready and willing to execute the sale deed did not arie, as he never entered into any agreement, as alleged. It was denied that the defendant had started any negotiations for the same with any third person. It was, accordingly, prayed that the suit be dismissed. Subsequently, after the amendment of the plaint, the defendant- appellant Suraj Mai filed the written statement to the amended plaint, taking up similar plead and it was further alleged that defendant Nos. 2 to 5, who were plaintiff''s ownmen, had represented before him (Suraj Mai defendant) that if he would thumb mark certain documents, the plaintiff would withdraw the suit and they had also represented to him that the interim injuction had been modified. It was further alleged that he (Suraj Mai defendant) was a victim of the attack of lunacy and in that condition, if the defendant Nos. 2 to 5 obtained some sale deed in their favour for any amount, he (Suraj Mai defendant) was not aware of it as he had never executed any such sale deed consciously, nor he had received Rs. 48,000/- or any other amounts as the consideration for the same. By way of additional plead, it was pleaded that the plaintiff being the Sarpanch, had taken him to the Teshil Office for getting the loan and had got his thumb impression with the deed-writer and in that manner, the plaintiff may have secured the agreement, the plaintiff may have secured the agreement and the same is void. The defendant Nos. 2 to 5, after the amendment of the paint in their joint written statement admitted that defendant No. 1 had executed the sate deed dated 22.7.1980 with regard to a part of the suit land in their favour for Rs, 48,000/- but it was pleaded that they were bonafide purchasers for consideration and without notice. It was denied that they were aware of the alleged agreement of sale and the pendency of the present suit. It was further alleged that in this view of the matter, the sale in their favour, was perfectly legal and valid and was binding on the plaintiff.

The plaintiffs field replications controverting the allegations contained in the written statements and reiterating the stand taken up in the plaint. It was denied that the financial position of the plaintiff was bad or that several suits for the recovery of amounts had been decreed against him or that his land had been attached. It was also denied that he was indebted to other persons or was not in a position to pay the advance amount. On the other hand, it was pleaded that a litigation with one Mul Chand was going on for the last many years. It was denied that the plaintiff was in the habit of creating false evidence or that the agreement in question was a forged document or that defendant No. 1 had not executed the sale deed consciously. It was further alleged that defendant No. 1 had executed the sale deed in favour of defendant Nos. 2 to 5 during the pendency of the present suit with an ulterior motive to defeat the rights of the plaintiff. It was also denied that defendant Nos. 2 to 5 were the men of the plaintiff or that they represented that if defendant Nos. 1 would thumb mark certain documents, the plaintiff would withdraw the suit. It was alleged that in fact the defendant Nos. 2 to 5 and their father were colluding with defendant No. 1 and the sale deed was executed to defeat the rights of the plaintiff. It was denied that the plaintiff had taken defendant No. 1 several times to the Teshil Office for getting the loan or that he got his thumb impressions with the deed writer or that the agreement was void. It was also denied that the defendant Nos. 2 to 5 were bonafide purchasers for consideration and without notice.

On the pleadings of the parties, the learned trial Court framed the following issues :-

(1) Whether defendant Suraj Mai agreed to sell the land described in para 1 of the plaint to the plaintiff for a sum of Rs.2,00,000/- and executed an agreement and receipt un 6.10.78 and obtained an earnest amount of Rs. 1,23,100/-.

(2) Whether the plaintiff has all along been ready and willing to perform his part of the contract.

(3) Whether defendant No.1 is guilty of breach of contract.

(4) Whether the plaintiff has no locustandi to file this suit.

(5) Whether the plaintiff is estopped from filing this suit, as alleged.

(6) Whether defendant Nos. 2 to 5 are bonafide purchasers of the suit land with consideration and without notice of any agreement in favour of the plaintiff; OPD 2 to 5.

(6-A) Whether defendant No. 1 violated the order of interim injunction, as alleged. If so, its effect; OPP.

(7) Relief.

Issue No. 1 was decided in favour of the plaintiff and it was held that the appellant had agreed to sell the suit land to the plaintiff and had executed the agreement and receipt dated 6.10.1978 and had received a sum of Rs; 1,23,100/- as earnest money. Issues Nos. 2 and 3 were dealt with together and were decided in favour of the plaintiff and it was held that the plaintiff had all along been ready and willing to perform his part of the contract while defendant No. 1 was guilty of breach of contract. Issue No.4 was decided against defendant No. 1 and it was held that the pantie had the locus standi to file the present suit. Issue No, 5 was also decided against defendant No. 1 and it was held that the plaintiff was not estopped from filing the present suit. Issue No. 6 was decided against defendant Nos. 2 to 5 and it was held that the sale of the part of the suit land by defendant No. 1 in favour of defendant Nos. 2 to 5, during the pendency of the present suit, would not affect the rights of the plaintiff. Issue No.6-A was held to have become redundant in view of the statement made by the plaintiff that he did not press the application under Order 39 Rule 2-A CPC against defendant No. 1. In the result, the trial court, vide judgment and decree dated 20.11.1985, decreed the suit of the plaintiff.

Learned Counsel for the appellant has argued that the execution of the agreement was not proved on the record. It was further submitted that the plaintiff was not possessed of sufficient funds and had no financial capacity to enter into agreement of sale with defendant No. Lit was further submitted that the plaintiff never appeared before the Sub Registrar on the due date alongwith money, nor tendered the balance sale price to defendant No. 1 and in this view of the matter, it could not be said that the plaintiff was always ready and willing to perform his part of the contract,

However, I find no force in these submissions of the Learned Counsel for the appellant. The plaintiff led cogent and convincing evidence on the record to prove the due execution of the agreement Ex. P.3 and receipt Ex. P. 4 by the appellant in favour of the plaintiff for the sale of the suit land for Rupees two lakhs and the receipt of Rs. 1,23,100/- as the earnest money and the adjustment of Rs. 66,900/- towards the mortgage amount while the remaining of Rs. 10,000/- was to be paid before the Sub-Registrar at the time of the registration of the sale deed, if may be mentioned here that out of the total amount of sale consideration of Rupees two lakhs, only Rs. 10,000/- were required to be paid by plaintiff to Suraj Mai defendant at the time of the registration of the sale deed, while out of the remaining amount of Rs. 1,90,000/- a sum of Rs. 1,23,100/- had been paid as the earnest money and Rs. 66,900/- were to be adjusted towards the mortgage amount. It may also be mentioned here that the suit land was already under mortgage with possession, with the plaintiff-respondent Zahoor Khan prior to the said agreement dated 6.10.1978 and appellant had, at no point of time, challenged the legality or otherwise of the said mortgage with possession of the suit land by him in favour of the plaintiff. In order to prove the due execution of the agreement of sale dated 6.10.1978, Ex. P.3 and receipt, Ex. P.4, with regard to payment of Rs. 1,23,100/- as earnest money, plaintiff himself appeared in the witness box as PW1 and also examined Nanwa Ram, petition writer PW 2, who is the scribe of the said documents. Besides that, the plaintiff also examined P@ 6 Shri Moti Lal Gupta, Advocate and PW 7 Idris Khan, who both are the attesting witnesses of the said document. The plaintiff also examined PW 4 S.N. Aggarwal, Hand-writing and Finger Print Expert, to prove the thump impression of Suraj Mai, appellation the agreement and receipt, with his specimen thumb impressions, in order to prove that the agreement and receipt were bearing the thumb impressions of appellant, Suraj Mai. on the other hand, Suraj Mai appeared as DW 1 and also examined DW 4 Hatti to prove that he had not executed the agreement Ex. P. 3 and receipt Ex. P.4 besides that, he also examined DW 10 Abdul Gafoor, Medical practitioner, to prove that he was mentally ill. However, after going through the evidence led by the parties with regard to the execution of the agreement Ex. P.3 and receipt Ex. P.4, it stands fully proved on the record that the agreement, Ex. P.3 and receipt Ex. P.4 were duly executed by the appellant in favour of the plaintiff-respondent and that he had executed the said documents consciously.

As regards the capacity of plaintiff-respondent No. 1 to pay the earnest money to the appellant at the time of execution of the agreement Ex. P.3 and receipt Ex. P.4, there is ample evidence on the record to show that at that time the plaintiff was possessed of sufficient means to pay the said amount. The plaintiff had placed en record various copies of jamabandis to show that the plaintiff and his wife were owning substantial agricultural land to show that they had sufficient income out of the said land to pay the earnest money.

As regards the question of plaintiff-respondent being not ready and willing to perform his part of the contract and his not having appeared before the Sub-Registrar on the due date alongwith the money and having not offered money to the Sub- Registrar or to defendant-appellant, in my opinion, suffice it to say that out of the total sale consideration of Ruppes two lakhs, plaintiff had already paid a sum of Rs. 1,23,100/- as earnest money on 6.10.1978 and another sum of Rs. 66,900/- was to be adjusted as the mortgage amount and as such, only small amount of Rs. 10,000/- remained to be paid towards the total sale consideration of Rupees two lakhs, besides stamps and registration charges. In this view of the matter, in my opinion, it is not possible to hold that the plaintiff was not ready and willing to perform his part of the contract, since He was required to pay only small amount to appellant out of the sale consideration of Rupees two lakhs having already paid substantial amount to the appellant.

In view of the above mentioned discussion, there is no merit in this appeal and the same is dismissed, with no order as to costs.