Wazir Singh vs Ram Gopal

Rameshwar Singh Malik, J.

Feeling aggrieved against the concurrent findings recorded by both the learned courts below, thereby decreeing the suit for possession by way of specific performance filed by the plaintiff-respondent, defendant has approached this court by way of instant appeal. Brief facts of the case, as recorded by the learned Additional District Judge in paras 2 and 3 of the impugned judgment, are that the plaintiff-respondent filed a suit alleging that defendant was owner in possession of 23K-4M of land being 1/3rd share of 71K-11M of land comprised in Khewat No. 61/60 min. Khata No. 71 situated in the revenue estate of village Dobh. The defendant out of his share in the suit land agreed to sell 4 kanals land to the plaintiff for Rs. 18,000/- i.e. At the rate of Rs. 36,000/- per acre. Written agreement was executed by the parties on 6.6.1992. The defendant received Rs. 5000/- as earnest money from the plaintiff and sale-deed was agreed to be executed upto 5.6.1993 on payment of balance sale consideration of Rs. 13000/-. The plaintiff had always been and was still ready and willing to perform his part of the contract but the defendant failed to perform his part of the contract. The plaintiff asked the defendant many a times to get the sale-deed executed and registered as per agreement on payment of balance sale price and expenses of sale-deed but he refused. On 5.6.1993, the last date stipulated in the agreement for executed and registration of the sale-deed, the plaintiff alongwith balance sale amount and expenses of sale deed went to the office of Sub-Registrar, Rohtak, to get the sale executed and registered as per agreement and also moved application before Sub-Registrar but the defendant did not turn up. The plaintiff also sent notice dated 22.12.1994 by registered A.D. post to the defendant for executing the sale-deed as per agreement but no reply was received. So, the plaintiff claimed decree for possession of 4 kanals of land in suit by way of specific performance of the sale agreement dated 6.6.1992 on payment of balance sale-price of Rs. 13000/- and for execution and registration of requisite sale-deed.

The defendant in his written statement while admitting his share in the disputed land controverted the other plaint allegations broadly and inter-alia pleaded that there is no agreement between the parties for sale of the agricultural land and the question of taking Rs. 5000/- as earnest money does not arise. If there is any agreement, the same is vague document. The plaintiff has no right to ask the defendant for execution of the sale-deed. The defendant has no knowledge about the application moved by plaintiff before the Sub-Registrar. The suit is not maintainable in the present from and the plaintiff has no locus-standi to file the suit."

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

"1. Whether the defendant entered into an agreement to sell 4 kanals of land to the plaintiff vide agreement dated 6.6.1992? OPP

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

Whether the suit is not maintainable? OPD

Relief."

To substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing the learned counsel for the parties and going through the evidence brought on record, the learned trial Court Game to the conclusion that plaintiff has proved his case. Consequently, the suit for possession by way of specific performance was decreed vide impugned judgment and decree dated 2.4.1998. Dissatisfied, defendant filed his first appeal, which also came to be dismissed by the learned Additional District Judge, Rohtak vide impugned judgment and decree dated 17.11.1998. Hence this second appeal, at the instance of defendant.

Learned counsel for the appellant submits that at the very inception, i.e. at the time of filing of the written statement, defendant-appellant took a categoric and specific averment in para 2 of the written statement that agreement to sell was totally vague. He specifically denied his signatures on the agreement to sell. In spite of that specific denial, the learned trial court illegally shifted the burden on the defendant to disprove the case of the plaintiff. It was for the plaintiff to prove his case leading affirmative evidence and to get signatures of the defendant compared by producing any hand-writing expert. Plaintiff also had an opportunity between 12 to 30.3.1998 to lead his rebuttal evidence in this regard, but he failed to do so. Since both the learned courts below have miserably failed to appreciate to this crucial aspect of the matter, which goes to the root of the cause, the impugned judgments and decrees were not sustainable in law. Finally, he prays for setting aside the impugned judgments and decrees, by allowing the present appeal.

On the other hand, learned counsel for the respondent-plaintiff submits that if defendant was denying his signatures on the agreement to sell, it was for him to prove it and the onus was rightly shifted by the learned courts on the defendant. Since he has failed to discharge his onus, suit was rightly decreed. Both the learned courts below have recorded concurrent findings and there was hardly any scope to interfere by this Court in the second appeal. In support of his contentions, he relies on the judgment of this Court in Jangir Singh v. Dey Singh, 2011(2) Law Herald 1573. He prays for dismissal of the appeal.

Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, instant appeal deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.

When the matter was placed before the Lok Adalat, following substantial question of law was formulated:--

"Whether the plaintiff was duty bound to produce an expert to prove the signature of the defendant on the agreement to sell?"

A bare combined reading of the relevant part of pleadings of the parties, i.e. paras 2 and S of the plaint and corresponding paragraphs of the written statement, would show that defendant has specifically denied the very existence of the agreement to sell. In spite of the above-said averments taken by the defendant in his written statement, plaintiff did not get the signatures of defendant on the agreement to sell, compared with his admitted signatures from a Fingerprint Expert, which was obligatory on him to do so. It is the settled proposition of law that initial onus is always on the plaintiff to prove his case by leading cogent and sufficient evidence. In the present case, the onus to prove issues No. 1 and 2 was rightly put on the plaintiff but he miserably failed to discharge his onus. Having said that, this Court feels no hesitation to conclude that the learned courts below fell in serious of law, while decreeing the suit of the plaintiff despite there being no sufficient and cogent evidence on record, to decree the suit.

The evidence of the defendant was closed on 12.3.1998, which is clear from page 42 of lower court record. Thereafter, plaintiff closed his rebuttal evidence by making a statement on 30.3.1998. Thus, during the above-said period, plaintiff had sufficient time to lead his rebuttal evidence. He should have at least moved an appropriate application before the court seeking the help of the Court, if any required, for summoning the expert witness, so as to get compared the signatures of the defendant on the agreement to sell with his admitted signatures. However, plaintiff failed to do so for the reasons best known to him. Since onus was on the plaintiff to prove his case and he failed to discharge his onus by leading evidence either in the affirmative or in rebuttal, his suit was liable to be dismissed, particularly when he was seeking a discretionary relief of specific performance. Since the learned courts below have proceeded on wholly misconceived and perverse approach in this regard, the impugned judgments and decrees cannot be sustained, for this reason also:

Admittedly, plaintiff did not produce the scribe or typist who typed the agreement to sell. No reason or explanation was forthcoming.

Once the defendant-appellant at the initial stage, denied the very execution of the agreement to sell, it was the bounden duty of the plaintiff to prove the agreement to sell after getting the signatures of the defendant compared, on the agreement to sell with his admitted signatures. Had the defendant denied his signatures and existence of the agreement to sell at the time of leading evidence travelling beyond his pleadings, the learned courts below would have been justified to decree the suit of the plaintiff. However, in the present case, the factual position was entirely different. As noticed hereinabove, defendant has specifically denied the execution of the agreement in paras 2 and 5 of his written statement. In such a situation, both the learned courts below committed a patent illegality, while shifting the burden of proof on the defendant. As the onus was on the plaintiff to prove issues No. 1 and 2 and he failed to discharge his onus, his suit was bound to fail. Since the learned courts below failed to appreciate this crucial aspect of the matter in the correct perspective, the impugned judgments and decrees cannot be sustained.

Agreement to sell, if any, was dated 6.6.1992. Although, delay itself would not be a ground to deny the relief of specific performance to the plaintiff when the suit was within limitation, yet keeping in the view the totality of facts and circumstances of the case discussed hereinabove, it is unhesitatingly held that plaintiff-respondent is not entitled for the discretionary relief of specific performance. Once the very execution of the agreement to sell was doubtful for want of sufficient and cogent evidence, there was hardly any scope left for granting even the alternative relief to the plaintiff for refunding the earnest money of Rs. 5000/-. However, since the learned courts below have misdirected themselves, while completely misreading, misconstruing and misinterpreting the true facts of the case as well as the evidence available on record, the impugned judgments and decrees cannot be sustained.

So far as the judgment relied upon by the learned counsel for the respondent is concerned, there is no dispute about the law laid down therein, however, the same is of no help to the respondent, being distinguishable on facts. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judge made law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon''ble Supreme Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, .

During the course of hearing, learned counsel for the respondent failed to support the impugned judgments and decrees. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken hereinabove. The impugned judgments and decrees have been found to be suffering from patent illegality, being contrary to the pleadings as well as the evidence led by the parties. Thus, the impugned judgments and decrees cannot be sustained.

No other argument was raised. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that since the impugned judgments and decrees have been found to be suffering from patent illegality, the same are hereby set aside. Consequently, suit of the plaintiff-respondent must fail and the same is hereby dismissed.

Resultantly, instant appeal stands allowed, however, with no order as to costs.