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2005 DIGILAW 799 (PNJ)

Mukhtiar Singh v. Makhan Singh

2005-07-29

M.M.KUMAR

body2005
Judgment 1. This is defendant s appeal filed under S. 100 of the Code of Civil Procedure, 1908 challenging the view taken by the lower Appellate Court. The judgement and decree partially allowing the suit of the plaintiff-appellant passed by the trial court has been reversed even with regard to payment of Rs. 10,000/- as earnest money to the plaintiff-appellant. According to the categorical findings recorded by both the Courts below, it has been held that the cause of action to file the suit had arisen on 30-5-1989 and the suit could have been filed within a period of three years from the date of cause of action as per Article 54 of the Schedule of Limitation Act, 1963 (for brevity, the Act ). It is appropriate to mention that an agreement to sell was executed on 4-1-1989 and an amount of Rs. 10,000/- as earnest money was paid. According to the agreement, the land was priced at Rs. 20,000/- per killa. The parties had agreed to execute the sale deed on 30-5-1989. However, the suit was filed on 7-12-1992 which is apparently beyond the period of limitation. It is appropriate to mention that the defendant-respondent Makhan Singh had also filed a suit for recovery of possession being Civil Suit No. 76-1/10-12-1992. 2. It has been found concurrently that reliance of the plaintiff-appellant on the endorsement Ex. P.W. 1/A extending time for execution of sale deed has not been meritorious because to the naked eye, the signatures of defendant-respondent Makhan Singh on that endorsement have been found to be different than the standard signature and for that reason both the Courts below have preferred the expert report Ex. D.W./2A. The differences pointed out by the lower Appellate Court with regard to the authenticity of the signatures in Punjabi Gurmukhi Script of the defendant-respondent on the endorsement read as under :- "27. Keeping in view the circumstances of the present case that both the handwriting experts have given contradictory opinions regarding the authenticity of the same signatures so there is no bar on the Court for comparing the admitted signatures of Makhan Singh with his disputed signatures on the endorsement Exh. P.W. 1/A. The perusal of the disputed signatures of Makhan Singh on endorsement Exh. P.W. 1/A shows that they are different from the admitted signatures of Makhan Singh. P.W. 1/A. The perusal of the disputed signatures of Makhan Singh on endorsement Exh. P.W. 1/A shows that they are different from the admitted signatures of Makhan Singh. The vowel Adak (Matra( ¡ )) and the vowel Tipi (Matra ( ª )) are present in the standard admitted signatures but these are absent in the disputed signatures. There is some difference in the formation of the letters. There is difference in the style of writing the letter Mamma ( e ) in the disputed signatures as compared with the standard signatures. The formation of the letter Nanna ( y ) is also different from the standard signatures. The angle of turning of the lower part of the letter Nanna ( y ) and the depth of the curve of the lower portion of the word Nanna( y ) is also different in the standard signatures. The formation of Matra Schari( f ) is also different in the disputed signatures. There is no retracing or loop formation in the vertical stroke of this matra, whereas such a loop or retracement is seen in the standard signatures. The formation of the words Ghagga( ?k ) is also different in the disputed signatures. The upper turning of this word are making angular shape in the disputed signatures, where the standard signatures shows a curvature formation. The above discussed differences show that the disputed signatures is different from the standard signatures in the writing characteristics like turnings, curvings, hook formation and angle formation etc. 28. The reasons given in the report Ex. D.W. 2/A are more plausible than the reasons given in the report of the handwriting expert Exh. P.W. 4/A." 3. The Courts below have given categorical findings that the reasons recorded in the endorsement for extension of time were also not plausible inasmuch as defendant-respondent Makhan Singh was stated to have taken extension of time in order to redeem the land from mortgage. The reason has been rejected by holding that the land was mortgaged with the Bank and execution of the sale deed could have been made subject to the mortgage. The reason has been rejected by holding that the land was mortgaged with the Bank and execution of the sale deed could have been made subject to the mortgage. On the contrary, the defendant-respondent would have received the balance consideration and his position to redeem the mortgage would have been strengthened because he would have paid to the mortgagee the amount of loan taken from the Bank would have been deducted from the balance sale consideration at the time of execution of sale deed. Even otherwise, there was no stipulation in the agreement Ex. P.W. 3/B dated 4-1-1989 to the effect that the sale deed would be executed after clearance of loan from the Bank. There is not even a mention in the agreement with regard to payment of loan against defendant-respondent Makhan Singh or that the suit land was under mortgage. 4. The plaintiff-appellant was required to show his readiness and willingness to perform his part of the agreement on 30-5-1989. Nothing has been produced on the record that he appeared before the Sub-Registrar or sent any legal notice before 30-5-1989 proving his readiness and willingness to perform his part of the contract. 5. The lower Appellate Court also relied upon the view of the trial Court with regard to recovery of a sum of Rs. 10,000/- because the suit of the plaintiff-appellant was found to be time barred. However, the suit filed by defendant-respondent Makhan Singh for recovery of possession, namely, Civil Suit No. 76-1/10-12-1992 was decreed because it was found that the plaintiff-appellant was not ready and willing to perform his part of the contract. Placing reliance on a judgement of this Court in the case of Chaman Lal V/s. Smt. Surinder Kumari, AIR 1983 Punj and Hary 323, the lower Appellate Court held that a transferee of the property who has come in possession in pursuance to part performance of a written agreement could continue to come in possession if he is ready and willing to perform his part of the agreement. In the present case, the plaintiff-appellant has been found to lack readiness and willingness to perform his part of the contract. His suit for specific performance has also been found to be barred by time. Therefore, the plea of the plaintiff-appellant based on Section 53-A of the Transfer of Property Act, 1882 (for brevity, 1882 Act ) has been rejected. 6. His suit for specific performance has also been found to be barred by time. Therefore, the plea of the plaintiff-appellant based on Section 53-A of the Transfer of Property Act, 1882 (for brevity, 1882 Act ) has been rejected. 6. Having heard the learned counsel at a considerable length, I am of the view that this appeal is totally devoid of merit and is liable to be dismissed. Both the Courts below have concurrently found that endorsement Ex. P.W. 1/A was never made by defendant-respondent Makhan Singh and the time for execution of the sale deed was not extended to 30-5-1990. The signatures of Makhan Singh on the aforementioned endorsement have been found to be appended by a person other than Makhan Singh. Both the Courts below have found that the disputed signatures of Makhan Singh are different from the standard signatures as the characteristics of writing like turnings, curvings, hook formation and angle formation do not tally. The aforementioned factual position is evident from perusal of paras 27 and 28 of the judgement which have been reproduced in preceding paras of this judgement. 7. On the basis of aforementioned findings which are fundamental to the whole claim of the plaintiff-appellant, everything else falls to the ground. The suit becomes time barred. The plaintiff-appellant failed to show readiness and willingness and even the protection of Section 53-A of 1882 Act could not be claimed in such a situation. The extension of time based on endorsement Ex. P.W. 1/A would also not be plausible because the agreement to sell has all alone been in possession of the plaintiff-appellant and, therefore, there was every occasion for him to incorporate by fabricating the signatures of Makhan Singh defendant-respondent. No question of law for determination would arise which is sine qua non for admission of an appeal under Section 100 of the Code and the appeal is, thus, liable to be dismissed. 8. For the reasons stated above, this appeal fails and the same is dismissed.