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2005 DIGILAW 776 (PNJ)

Basanti v. Madan Singh

2005-07-22

M.M.KUMAR

body2005
JUDGMENT M.M. Kumar, J. - This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of facts recorded by both the Courts below holding that her suit for possession by way of specific performance of agreement dated 15.11.1990 Ex. P1 cannot be decreed in her favour. It has been concurrently found that Exs. D1 to D3 are other three agreements to sell executed between the parties at different points of time. None of those agreements ultimately were ended in the executing one document or the other, the amount of loan paid earlier had been adjusted. The alleged payment of Rs. 65,000/- at the time of execution of agreement dated 15.11.1990 Ex. P1 could not be proved on the file nor any separate receipt has been brought on record in respect of that payment. Reference in this regard has been made to the statement of PW1 Ram Avtar, scribe of the agreement, PW-2 Ranjit Singh an attesting witness of the agreement dated 15.11.1990 Ex.PI and the plaintiff-appellant herself who has appeared as PW-3. The view of the lower Appellate Court as reflected in last portion of paragraphs 13 and 14 reads as under :- "......The above facts go a long way to justify an inference that no part of the alleged earnest amount of Rs. 65,000/- came to be paid at the time of execution of Ex. P1. In this context, it is pertinent to point out that not even a penny exchanged hands at the time of execution of agreements Ex. D1 to D3. In this context, it may be indicated that it is in the statement of none else or other than DW1 Om Parkash scribe that no part of the amount came to be paid at the time of execution of Ex.D1 to D3 which he had scribed. 14. All these circumstances are a clear pointer to the fact that Ex. P1 was only a camouflage for the loan transaction between the plaintiff-appellant and the vendor respondent and the former had got it executed only as a security for the loan transaction aforesaid." 2. 14. All these circumstances are a clear pointer to the fact that Ex. P1 was only a camouflage for the loan transaction between the plaintiff-appellant and the vendor respondent and the former had got it executed only as a security for the loan transaction aforesaid." 2. It has further been held that the plaintiff-appellant has failed to prove that she was ready and willing to perform her part of the contract and on the date of execution of the sale deed fixed between the parties i.e. 14.5.1992, she was possessed of adequate resource. Placing reliance on the endorsement made by the sub-registrar on the application Ex. D8, the lower Appellate Court observed as under :- ".......Vide endorsement Ex. D8 the Sub Registrar, Pataudi, noted the presence of the plaintiff-appellant and also vendor-respondent and ordered the return of the application to the vendor-respondent as the vendor was willing to perform his part of the contract. There is no averment in Ex. D8 that the plaintiff-appellant was willing to perform her part of the contract that she was possessed of adequate resources in the context. Infact, there is no acceptable evidence on the file to prove that the plaintiff-appellant was indeed possessed of adequate funds for the purpose on that date. There is no averment that she had withdrawn that amount from any bank account. The amount in the context was quite large. She told the court that she had carried along the balance sale consideration and a sum of Rs. 40,000/- to defray the charge incidental to the execution and registration and of the sale deed. When called upon to explain how she came to raise those funds, she stated that the amount had been obtained by her form the sale proceeds of one killa each of the land which her son Jai Bhagwan and her husband Attar Singh had sold. It is in her statement that they plaintiff-appellant and her son and husband had received a sum of Rs. 5,00,000/- in respect of the above sale deeds which are otherwise not forthcoming on the file. Those alleged-vendees have also not been produced. Even those vendors i.e. son and husband of the plaintiff appellant did not step into the witness box to own up the averment. 5,00,000/- in respect of the above sale deeds which are otherwise not forthcoming on the file. Those alleged-vendees have also not been produced. Even those vendors i.e. son and husband of the plaintiff appellant did not step into the witness box to own up the averment. It is obvious in the circumstances of the case that they refrained from entering the witness box just in order to avoid exposure in the context." 3. The plea of depositing the balance sale consideration during the course of trial has been rejected by the learned lower Appellate Court on the ground that there is adequate evidence on record showing that the agreement to sell dated 15.11.1990 Ex. P1 was not intended to be the agreement for the sale of immovable property mentioned therein and it might merely be a security for the loan advanced to the defendant-respondents. 4. Mr. Sudhir Aggarwal, learned counsel for the plaintiff-appellant has argued that there is ample evidence on record to prove the execution of agreement to sell dated 15.11.1990 Ex.P1 According to learned counsel, the defendant-respondents did not execute the sale deed as there was a family dispute and no income tax clearance certificate was obtained. He has claimed that suit for possession by way of specific performance deserved to be decreed. Learned counsel has also submitted that in any case, an amount of Rs. 65,000/- paid by the plaintiff-appellant as earnest money should have been refunded to her in accordance with the covenants of the agreement to sell. 5. I have given serious consideration to the submissions made by the learned counsel and regret my inability to accept the same. It has been concurrently found by both the Courts below that execution of the agreement to sell dated 15.11.1990 Ex. P1 has not been proved on record nor the payment of earnest money has been shown. It has also been established that the plaintiff-appellant was not ready and willing to perform her part of the contract and reliance has been placed on the endorsement Ex. D8 made by the Sub Registrar and that she was not possessed of adequate resources for making the payment of balance consideration amount. The more important findings disentitling the plaintiff-appellant the relief of possession by way of specific performance is the existence of three earlier transactions where similar agreements to sell Ex. D8 made by the Sub Registrar and that she was not possessed of adequate resources for making the payment of balance consideration amount. The more important findings disentitling the plaintiff-appellant the relief of possession by way of specific performance is the existence of three earlier transactions where similar agreements to sell Ex. D1 to D3 were found to have been executed which never resulted into execution of a single sale deed. Those agreements to sell further show that various amounts paid at one time or the other were being adjusted. It is apparent that similar, transactions between the parties have taken place, then under Section 15 of the Evidence Act, 1872 such transactions would be relevant unless contrary is shown that there was intentional deviation. In the present case, the earlier loan transactions making adjustment of the loan are sufficient to show that the agreement to sell in question dated 15.11.1990 Ex. P1 is not different than the one which were executed earlier between the parties like Exs. D1 to D3. There is nothing on the record proving to the contrary or showing any deviation. 6. The argument of the learned counsel that the amount of earnest money paid by the plaintiff-appellant should be refunded cannot be countenanced and accepted because both the Courts below have found that the payment thereof has not been proved. Therefore, the alternative relief claimed by the plaintiff- appellant can also not be granted to the plaintiff-appellant. No question of law warranting admission of appeal has arisen for exercise of jurisdiction under Section 100 of the Code. 7. For the reasons stated above, this appeal fails and the same is dismissed. Appeal dismissed.