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2001 DIGILAW 1041 (PNJ)

Karamjit Singh v. Aroor Singh

2001-09-21

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This is a defendants appeal and has been directed against the judgment and decree dated 19.5.2000 passed by Additional District Judge, Sangrur, who affirmed the judgment and decree dated 18.11.1998 passed by Civil Judge (Junior Division), Malerkotla, who decreed the suit of the plaintiff/respondent for possession by way of specific performance. 2. Some facts can be noticed in the following manner :- Teja Singh deceased represented to the plaintiffs-respondents that he was the owner of the land in question situated in Village Bunga, Tehsil Malerkotla. The plaintiff-respondents believed the representation of Teja Singh and agreed to purchase the suit land @ Rs. 15,000/- per Bigha and paid Rs. 46,000/- by way of earnest money to said Teja Singh, who was the predecessor-in-interest of the present appellants, on 23.5.1991. It was agreed upon by Teja Singh in the agreement of sale dated 22.5.1991 (Ex.P1) that he shall execute the sale deed in favour of the vendee on or before 22.5.1993. Teja Singh died on 14.5.1993 and after his death the plaintiff filed a suit for possession by way of specific performance on 17.3.1994. The suit was contested by the defendants on various pleas including the one that no agreement of sale was executed. In fact, the money was advanced to Teja Singh by way of security as the plaintiff was a commission agent. 3. From the controversies raised by the parties, the learned trial Court framed the following issues :- "1. Whether an agreement dated 23.5.1991 was executed by defendant in favour of the plaintiff ? OPP 2. Whether the plaintiff had been ready and willing and is ready and willing to perform his part of agreement ? OPP 3. Whether the plaintiff is entitled to the specific performance of the agreement to sell ? OPP 4. Whether the plaintiff is entitled to the recovery of Rs. 72,000/- as alternative relief ? OPP 5. Whether the plaintiff is entitled to permanent injunction ? OPP 6. Whether no cause of action accrued to the plaintiff? OPD 7. Relief." 4. The parties led evidence in support of their respective cases and vide judgment and decree dated 18.11.1998 the learned Civil Judge (Junior Division), Malerkotla decreed the suit of the plaintiff and directed the defendants to execute the sale deed after receiving the balance consideration within two months from the date of passing of the decree. OPD 7. Relief." 4. The parties led evidence in support of their respective cases and vide judgment and decree dated 18.11.1998 the learned Civil Judge (Junior Division), Malerkotla decreed the suit of the plaintiff and directed the defendants to execute the sale deed after receiving the balance consideration within two months from the date of passing of the decree. Defendants were not satisfied with the judgment and decree of the trial Court and they filed first appeal before the Additional District Judge, Sangrur which was also dismissed vide impugned judgment and decree dated 19.5.2000. The reasons of dismissal of the appeal are contained in paras 8 to 10 of the impugned judgment which are reproduced as follows :- "8. The learned Counsel for the appellants submitted that the agreement was allegedly executed on 23.5.1991 and sale deed as per the agreement Ex.P1 was to be executed on 22.5.1993 whereas the suit was filed on 6.3.1994 just after three years. The statement of PW-4 Arur Singh does also reveal that Teja Singh used to borrow the money from Arur Singh and used to return the same. Thus, Arur Singh was money lender, who kept quiet for three years and thereafter filed the suit on the last days of limitation and as such he was only entitled to recover the amount from Teja Singh, as Teja Singh had never executed any agreement to sell the land. In this regard, the learned Counsel for the appellants has relied upon the decision of Honble Supreme Court of India in a case Teja Singh v. Patirambhau cited as AIR 1977 Supreme Court 2702. Further the learned Counsel for the appellants has pointed out that a writing for the receipt of Rs. 46,000/- by Teja Singh was written subsequently and it was with different ink, which also attracts that the agreement Ex.P1 is forged and fictitious document, which might have been got executed for security measures. Moreover, it is proved on record that vide Ex.DW2/A the suit land was exchanged by Teja Singh as such he was no more the owner of the suit land when the alleged agreement was executed and the same was void ab initio. 9. Moreover, it is proved on record that vide Ex.DW2/A the suit land was exchanged by Teja Singh as such he was no more the owner of the suit land when the alleged agreement was executed and the same was void ab initio. 9. The learned Counsel for the respondents, on the other hand, has referred to the decision of Honble High Court of Andhra Pradesh in a case Mettapalli Venkata Rao and others v. Kotla Alivelu Mangatayaramma and another, cited as 1998(1) C.C. Cases page 195 according to which vendor was not entitled to put forward a plea of want of title or defect of title in himself, whereas vendee could raise such defence and specific performance of agreement sought by vendee could not be denied on such plea raised by the vendor. Moreover, the fraud, as alleged by the appellants had never been proved by the appellants and the arguments of the documents if executed for security reasons was beyond pleadings. Moreover, the alleged exchange of land by Teja Singh vide Ex. DW2/A was never reflected in the revenue record, as such it was no exchange in the eyes of law. 10. I do not find any force in the contention raised by the learned Counsel for the appellants, as PW1 and PW2 marginal witnesses of the agreement Ex.P1 have specifically proved the execution of the document by Teja Singh. Pawan Kumar Sharma, deed-writer who scribed the agreement to sell dated 23.5.1991 as PW3 stated that he read over the document to Teja Singh after writing the same, which he entered in his register at serial No. 675 dated 23.5.1991 vide entry of his register Ex.PW3/A. Arur Singh, respondent also proved his case. In order to show readiness and willingness Arur Singh respondent as PW4 has specifically stated that sale deed was to be executed on 22.5.1993. In order to show readiness and willingness Arur Singh respondent as PW4 has specifically stated that sale deed was to be executed on 22.5.1993. Since 22.5.1993 was Saturday, as such he appeared in the office of Sub-Registrar on 21.5.1993 and got his presence marked by way of his affidavit Ex.PW4/A and thereafter he again went to the office of Sub-Registrar for execution of the sale deed on 24.5.1993, but Teja Singh never came present and he again got his affidavit attested regarding his presence marked in the office of Sub- Registrar vide Ex.PW4/B. Later on he came to know that Teja Singh died on 14.5.1993 and as such he sent notice Ex.PW4/C to Ex.PW4/F asking LRs of Teja Singh to execute the sale deed who alleged that their father had not executed any agreement to sell with the respondent Arur Singh and also alleged the agreement to be a forged and fabricated document, regarding which no cogent and convincing evidence is forthcoming. On the other hand, the appellants got proved the exchange deed dated 1.6.1990 from DW1 Babu Singh, Deed Writer and DW2 Sat Pal marginal witness regarding the exchange of the suit property by Teja Singh with his brother Major Singh, exchanging their land with Darshan Singh, who was the owner of land measuring 14 Bighas 3 Biswas comprising of Khewat No. 78/127, Khatauni No. 89/1/1-0, 90/6-5, 781/91/1/5-18, 783/92/1-0. The recital of the exchange deed Ex.DW2/A does reveal that both the parties were to get incorporated the exchange deed in the revenue record, but the same had not been got incorporated in the revenue record, meaning thereby the parties themselves had not followed the terms and conditions of the exchange deed. Moreover, the parties to the exchange deed were real brothers, which is sufficient to construe that exchange deed was mere a paper transaction, just to defeat the rights of the respondent and also to create legal complications for the respondent. Not an iota of substance has been brought on record in order to show that the agreement Ex.P1 was forged and fabricated document. So it is crystal clear to hold that Teja Singh had entered into an agreement to sell dated 23.5.1991 in favour of Arur Singh and the respondent Arur Singh had been ready and willing to perform his part of the agreement till filing of the suit. So it is crystal clear to hold that Teja Singh had entered into an agreement to sell dated 23.5.1991 in favour of Arur Singh and the respondent Arur Singh had been ready and willing to perform his part of the agreement till filing of the suit. The provisions of law cited by the learned Counsel for the appellants AIR 1997 SC 2702 (supra) cannot be invoked in the case, whereas the appellant was debarred from putting a plea of defective title in Teja Singh as per 1998(1) C.C. Cases 195 (supra). Under these circumstances, I am of the opinion that the learned lower Court had rightly returned the findings on all the issues in favour of the respondent and against the appellants." 5. Still not satisfied by the judgments and decrees of the courts below, the present regular second appeal. 6. I have heard Mr. S.S. Salar, learned Counsel for the appellants and with his assistance have gone through the records of the case. 7. The learned Counsel for the appellants vehemently submitted that the agreement Ex.P1 is shrouded by suspicious circumstances. He particularly relied upon the endorsement mark A and submitted that the shade of the ink of the endorsement is different from the shade of the ink used by the scribe in executing the agreement. The submission raised by the learned Counsel for the appellants has been minutely considered by me. It is correct that the shade of the ink used by the scribe is different than the one of mark A, which runs as follows :- "46000 rupye babat biana nakad vasul paiya. Sd/- (Teja Singh) 23.5.1991." 8. It may be noticed here that the agreement Ex.P1 runs into two pages. It is signed by the vendee, vendor and the attesting witnesses Jagdev Singh and Bhupinder Singh. A glance of the document Ex.P1 would show that the vendor and the attesting witnesses used one type of ink while the scribe wrote the drafted document with his own ink. In these circumstances, it cannot be said that endorsement mark A is a fabricated one or it has been manipulated by the vendee in order to give advance. The first page of the agreement is also signed by Teja Singh with the same shade of ink with which mark A has been signed by him. In these circumstances, it cannot be said that endorsement mark A is a fabricated one or it has been manipulated by the vendee in order to give advance. The first page of the agreement is also signed by Teja Singh with the same shade of ink with which mark A has been signed by him. Second page has also been signed by Teja Singh with the same shade of ink with which endorsement mark A has been signed. Similarly, Arur Singh vendee and Jagdev Singh, attesting witness, have signed the agreement Ex.P1 with the same pen perhaps which has been used in mark A. The object of my above discussion is to show that Teja Singh voluntarily executed the agreement and he received the earnest money of Rs. 46,000/- and agreed to execute the sale deed by taking an allowance of two years on or before 22.5.1993. The present suit has been filed in the month of March, 1994. There was hardly any delay which declines the discretionary relief to the plaintiff. I am not inclined to endorse the submission of the learned Counsel for the appellants that Rs. 46,000/- were advanced to Teja Singh as loan and the agreement has been manipulated by the vendee. Both the courts have rightly appreciated the agreement Ex.P1 and in my opinion the decree for specific performance has been rightly granted to the plaintiff. 9. Faced with this difficulty, the learned Counsel for the appellants then relied upon K.S. Vidyanadam and others v. Vairavan, AIR 1997 SC 1751. This judgment is totally not applicable to the facts of this case. As I have stated above that the suit was filed in the year 1994 and the last date of performance of the agreement was 22.5.1993. In these circumstances, it cannot be said that there was an inordinate delay on the part of the plaintiff in filing the suit. In the cited case the plaintiff did not take action in filing the sit for 2-1/2 years. The judgment relied upon by the learned Counsel for the appellant is on facts. As per the provisions of Specific Relief Act the specific performance should be granted unless the case of the vendee is defeated by any legitimate proof. We all know that the relief of specific performance is a discretionary one, but discretion has to be exercised in a judicious manner. As per the provisions of Specific Relief Act the specific performance should be granted unless the case of the vendee is defeated by any legitimate proof. We all know that the relief of specific performance is a discretionary one, but discretion has to be exercised in a judicious manner. If the vendors are allowed to back out from their commitments, the people will lose faith in justice. The decree for possession by way of specific performance has been rightly granted by the courts below and this court does not want to interfere in this decree when no substantial question of law is involved in this appeal. Hence, this appeal is hereby dismissed in limine with no order as to costs. Appeal dismissed.