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2002 DIGILAW 557 (RAJ)

Jaggar Singh v. Malkiyat Singh

2002-03-13

PRAKASH TATIA

body2002
JUDGMENT 1. - Heard learned counsel for the parties. Perused the record. 2. Brief facts of the case are that the plaintiff has filed the suit for specific performance of contract alleging that plaintiff entered into agreement * Against the Judgment and Decree dated 13.9.1983 passed by Addition District & Sessions Judge, Ganganagar in Suit No. 50/83. for purchase of the agricultural land on 21.2.1977 with defendant. The sale consideration was Rs. 30,000/- which was paid by the plaintiff on the same day i.e. 21.2.1977 in the presence of two witnesses Manglu Ram and Brij Lal and the sale deed was to be executed and was to get registered by 15 Poh Samvat year 2034. The plaintiff further, submitted that the possession of the land was handed over by the defendant to the plaintiff and his father. The plaintiff obtained the permission which was required for transfer of the disputed land and this permission was sent to the office of Sub-Registrar. It alleged that the plaintiff was given possession of the land in dispute in part performance of the contract. It is stated that the plaintiff went to the office of the Sub-Registrar, Karanpur but the defendant did not came there. It is stated that the plaintiff was ready and willing to perform his part of the contract but the defendant has not executed the sale deed. Therefore, the plaintiff filed the suit for specific performance on 28.3.1978. 3. The defendant submitted written statement and stated that he has not received Rs. 30,000/- on 21.2.1977. He further stated that the plaintiff might have got the thumb impression of the defendant by taking advantage of illiteracy of the defendant and since the defendant never entered into agreement for sale of the above land, therefore, there is no question of executing the sale deed in favour of the plaintiff. 4. The trial Court framed the issue whether the agreement was without any consideration and whether the document was not executed by the defendant. The plaintiff himself examined as PW 1 in support of his case and also produced the witnesses PW 2 Mangalu Ram, PW 3 Buta Singh and PW4 Brij Lal whereas in rebuttal only the defendant appeared as witness. 5. The plaintiff himself examined as PW 1 in support of his case and also produced the witnesses PW 2 Mangalu Ram, PW 3 Buta Singh and PW4 Brij Lal whereas in rebuttal only the defendant appeared as witness. 5. The trial Court after giving opportunity of hearing to the parties, decreed the suit of the plaintiff for specific performance of the contract holding that the plaintiff proved that agreement and the trial Court also found that defendant failed to prove that he has not received Rs. 30,000/-. 6. Learned Counsel for the appellant vehemently submitted that there are serious contradictions in the statements of the plaintiff and his witnesses which clearly prove that the consideration money shown in the agreement to sell has not been paid to the defendant and according to the learned counsel for the appellant if no consideration has been paid to the defendants by the plaintiff then the document being without any consideration is void and also submitted that this shows the falsity of the case of the plaintiff. It is also submitted that when a false case of payment the consideration has been alleged then it can be held that the plaintiff was not ready and willing to perform his part of the contract and an equitable relief of specific performance of the contract cannot be granted in favour of the plaintiff. Therefore, the trial Court without appreciating this aspect of the matter wrongly decreed the suit of the plaintiff. Learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court delivered in the case of Ram Kumar Agarwal and Anr. v. Thawar Das reported in 1999 Vol. 7 SCC 303 and the another judgment of the Hon'ble Apex Court delivered In the case of Pushparani S. Sundaram & Ors. v. Pauline Manomani James & Ors. reported in 2000 (8) JT SC 1995 . 7. I considered the pleadings as well as evidence produced by the parties. It is clear from the record that the plaintiff placed on record the written agreement Ex. 1. To prove this document the plaintiff stated on oath that this agreement was executed by the defendant and witnesses Manglu Ram and Brij Lal were present when this document was executed. It Is also stated on oath that the defendant on the back of this agreement made endorsement for extension of time for registration of the document. 1. To prove this document the plaintiff stated on oath that this agreement was executed by the defendant and witnesses Manglu Ram and Brij Lal were present when this document was executed. It Is also stated on oath that the defendant on the back of this agreement made endorsement for extension of time for registration of the document. It is pertinent to mention here that there is no cross- examination on execution of this document and extension of time by the defendant from PW1 plaintiff. There Is no cross-examination from the plaintiff on the point of handing over possession of the property by the defendant to the plaintiff and plaintiff's father. The plaintiff's witness PW2 Manglu Ram was also stated on oath that the defendant entered into agreement for sale of the above land for a consideration of Rs. 30,000/-. He also has not been cross-examined, who on the point of entering into agreement with plaintiffs by the defendant and PW3 Buta Singh, stated on oath that the extension of time was made in his presence. He proved the endorsement on the back of the Ex. 1. Nothing came out from cross-examination of these witnesses to make them unreliable witnesses. PW4 Brij Lal stated on oath that the agreement was read over to the defendant and he admitted it to be correct and Rs. 30,000/- was paid in his presence. There is no cross-examination from this witness PW4 also with respect to the execution of the agreement and entering into agreement for sale by the defendant with the plaintiff. The only cross-examination from all the witnesses who are relating to the execution of the agreement is with respect to the fact, who paid the amount of Rs. 30,000/-; whether it was directly paid by the plaintiff or not for which in the evidence of the PW1 it came that Rs. 30,000/- was paid by the plaintiff directly to the defendant whereas from the witness PW2 Manglu Ram it comes that the plaintiff brought Rs. 30,000/- and gave it to the witness Manglu Ram and this witness Manglu Ram gave Rs. 30,000/- to defendant whereas PW 4 Brij Lal stated that plaintiff's father Swam Singh gave Rs. 30,000/- to Manglu Ram witness and Manglu Ram gave this amount to defendant. 30,000/- and gave it to the witness Manglu Ram and this witness Manglu Ram gave Rs. 30,000/- to defendant whereas PW 4 Brij Lal stated that plaintiff's father Swam Singh gave Rs. 30,000/- to Manglu Ram witness and Manglu Ram gave this amount to defendant. On the basis of this contradiction learned counsel for the appellant submitted that in view of the serious and material contradictions with respect to the fact that who made the payment to the defendant, all the witnesses are proved to be not speaking truth, therefore, the fact of payment of Rs. 30,000/- to the defendant has not been proved and, therefore, in view of the judgment of the Apex Court stated in case of Ram Kumar Agarwal's the plaintiff was not entitled for specific performance of the contract. 8. It is true that there is a vacillating stand of the plaintiff and plaintiff's witnesses with respect to the fact that who made the payment of the amount but looking to all other fact the pleading of the defendant shows that this fact cannot be said to be a material fact who made the payment of the amount. The material facts is that plaintiff proved execution of the agreement containing the fact that payment of Rs. 30,000/- was made. The pleading of the plaintiff clearly shows that plaintiff's father was also involved and in plaint itself the plaintiff stated that the possessions of the land was given not only to the plaintiff but to his father also. Therefore, even if the money might have directly paid by the plaintiff to the defendant or through one of the witnesses or the money brought by the father of the plaintiff is of no significance and because of these different statements of different persons it cannot be said that in fact money was not paid. This statement cannot make the plaintiff as a unreliable witness, particularly, in the view of the facts of this case, which are admitted by the defendant himself in his statement. The defendant in his statement stated that a document was executed for giving the land on a contract basis and consideration was fixed for Rs. 6,000/- but no money was paid and this was not the defence taken by the defendant in the written statement. The defendant in his statement stated that a document was executed for giving the land on a contract basis and consideration was fixed for Rs. 6,000/- but no money was paid and this was not the defence taken by the defendant in the written statement. The defendants in his statement admitted that the plaintiff might have got the thumb impression of the defendant on the endorsement of extension of time but this was done by representing that this is a document of contract for the land in dispute giving on hire, when the defendant has not set up his case of any contract of giving the land on contract then the entire story of the defendant falls to the ground. The defendant in his statement further very categorically stated that the document was written by one deed-writer whom, he does not know. By this statement, it appears that the document was written by the deed-writer and thereafter, the defendant put his thumb impression. It is stated that the deed-writer did not read over the document nor the defendant asked him to read it over. This also supports the case that the agreement was executed and when there is no specific defence of execution of the deed by the defendant as set up in the evidence and not put to the plaintiff in cross-examination, the evidence of the defendant cannot be believed. When the defendant's statement with respect to all the material facts appears to be not truthworthy then mere denial by saying that he has not received Rs. 30,000/- cannot be believed and who actually handed over the money to the defendant losses its significance. Therefore, there is no force in the submission of learned counsel for the appellant that because of the contradictions it could be presumed that payment was not made. Therefore, the judgment relied upon by the learned counsel for the appellant has no application to the facts of the case. Therefore, there is no force in the submission of learned counsel for the appellant that because of the contradictions it could be presumed that payment was not made. Therefore, the judgment relied upon by the learned counsel for the appellant has no application to the facts of the case. Not only this but from the facts mentioned in the judgment itself in the case of Ram Kumar Agarwal, it is clear that the Hon'ble Apex Court held that if a false plea of payment is set up by the plaintiff then he is not entitled for the relief of specific performance of the contract when it is held that the agreement was executed by the defendant from the evidence and it is proved that the payment was received by the defendant then no fault can be found in the relief granted by the trial Court. 9. Learned counsel for the appellant submitted that the plaintiff has failed to prove that he performed his part of the contract. It is submitted that the plaintiff was required to obtain the permission of transfer of the agricultural land but he did not obtain any permission letter from the Competent Authority and in absence of permission from the Competent Authority, any sale of the land is void by statutory provisions. Therefore, the suit for specific performance of the contract cannot be decreed in favour of the plaintiff. Learned counsel for the appellant relied upon the judgment of the Pushparani S. Sundaram & Ors.'s case mentioned above. 10. To appreciate the above contention, it is relevant to again refer the pleading and the evidence on record. The plaintiff has stated in the pleading that he has obtained the permission and also stated on the oath before the Court below that he has obtained the permission from the Collector for transfer of the land. The defendant did not choose to cross-examine the plaintiff on this point. Therefore, if the plaintiff presumed that the defendant do not want to dispute this position if he has not placed on record the permission letter from the District Collector, no adverse inference can be drawn against the plaintiff, particularly, in view of the fact that neither the plaintiff was cross-examined on this point nor the plaintiff was asked to produce the above document by the defendant. Therefore, the judgment relied upon by the learned counsel for the appellant has no application to the facts of this case. 11. In view of the above reasonings, I do not find any force in the appeal. The appeal of the appellant is dismissed. Stay order, if any, passed by this Court shalt stand vacated.Appeal dismissed. *******