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2006 DIGILAW 2098 (PNJ)

Dalbir Singh v. Raghbir Singh

2006-05-15

S.S.SARON

body2006
Judgment S. S. Saron, J. 1. This regular second appeal has been filed by the defendantappellant against the judgment and decree dated 18.1.2005 passed by the learned Additional District Judge, Kaithal whereby the appeal of the defendant-appellant against the judgment and decree dated 11.8.2003 passed by the learned Civil Judge (Senior Division), Guhla has been dismissed. Bachan Singh, plaintiff (since deceased and now represented by his LRs Raghbir Singh etc. , respondents) filed a suit for possession of land measuring 16 Kanals as detailed in para 1 of the plaint by way of specific performance of an agreement dated 14.12.1998. The defendant, it was alleged, had agreed to sell the suit land in favour of the plaintiff Bachan singh for a consideration of Rs.1,35,000/- per acre. In consequence of the agreement the defendant is stated to have received Rs.1,25,000/- as earnest money in the presence of witnesses. The date for execution and registration of the sale deed was fixed as 15.12.1999 in terms of the said agreement. A day before the date fixed for execution and registration of the sale deed, the plaintiff approached the defendant at his residence to get the sale deed executed after receiving the balance consideration. The defendant assured the plaintiff that he would come in the office of Sub Registrar, Guhla on the date fixed. However, even though the plaintiff was present in the Tehsil complex on 15.12.1999 from 9.00 a. m. To 5.00 p. m. along with the balance sale consideration but the defendant did not turn. The plaintiff got his presence marked before the Sub Registrar. Thereafter, he served a legal notice dated 8.1.2000 calling upon the defendant to come present on 24.1.2000 in the office of Sub Registrar, Guhla. On that day also the plaintiff remained present in the office of Sub Registrar but the defendant did not come to execute the sale deed. Despite making repeated requests, the defendant failed to execute the sale deed which resulted in the filing of the suit. 2. The defendant contested the suit and took the stand that he had never agreed to sell the suit land in favour of the plaintiff and never received any earnest money nor executed any agreement to sell as alleged. Despite making repeated requests, the defendant failed to execute the sale deed which resulted in the filing of the suit. 2. The defendant contested the suit and took the stand that he had never agreed to sell the suit land in favour of the plaintiff and never received any earnest money nor executed any agreement to sell as alleged. In fact, the agreement to sell, it was stated, was the result of fraud and misrepresentation and the document had been procured by the plaintiff with the connivance of his son Sardool Singh, Advocate, who acted at the beck and call of M/s sanjeev Kumar Satish Kumar, Commission Agent at Cheeka Mandi to whom he had been selling his crop and also borrowing advance to meet out day to day needs. In good faith, the said firm used to take his thumb impression on blank/printed papers to secure the recovery of money advanced. His thumb impression on the blank papers had been procured on the agreement in question by the son of the plaintiff at the instance of the said Commission agent firm. This fact is stated to have also been proved as one of the witnesses is a partner of the said firm. Therefore, it was stated that the defendant never intended to sell his land nor had he executed any agreement so he was not liable to hand over the possession. Replication was filed controverting the allegations in the written statement and re-asserting the averments as made in the plaint. The learned trial Court framed the following issues in the case:- " (1) Whether the plaintiff is entitled to possession of suit property by way of specific performance of the agreement dated 14.12.1998? OPP (2) Whether suit is not maintainable in the present form? opd (3) Whether the plaintiff has no cause of action and locusstandi to file the present suit? OPD (4) Relief. " 3. After considering the evidence and material on record, the learned trial court held that the plaintiff is entitled to the suit property by way of specific performance of the agreement dated 14.12.1998. In appeal, the judgment and decree of the trial Court has been affirmed by the learned Additional District judge vide her judgment and decree dated 18.1.2005 which is assailed in the present appeal. 4. Mr. M. S. Jain, learned Senior Advocate appearing with Mr. In appeal, the judgment and decree of the trial Court has been affirmed by the learned Additional District judge vide her judgment and decree dated 18.1.2005 which is assailed in the present appeal. 4. Mr. M. S. Jain, learned Senior Advocate appearing with Mr. Vikas Jain, Advocate has contended that the learned Courts below erred in ignoring the fact that the agreement to sell dated 14.12.1998 was a result of fraud and misrepresentation. In fact, the defendant-appellant did not enter into any agreement with the respondents. It is also contended that Bachan singh, plaintiff appeared as PW-4 and in his evidence he deposed that he did not take Sardool Singh, Advocate in confidence nor told him anything about the agreement on the date of the alleged agreement or regarding marking his presence before the Sub Registrar, Guhla. However, this assertion of the plaintiff stands belied as Sardool Singh, Advocate had issued the alleged notice (Ex. P.7 ). It is forcefully contended that proper and necessary issues arising out of the pleadings of the parties have not been framed in the case and non-framing of proper and necessary issues vitiates the impugned judgment and decree. An issue with regard to fraud and misrepresentation in respect of the agreement dated 14.12.1998, it is contended was liable to be framed. Non-framing of issues in this regard, it is contended, vitiates the judgments of the Courts below. Besides, it is contended that the price of the land at the rate of Rs.1.35 lacs per acre is too low which would also warrant interference of this Court. 5. I have given my thoughtful consideration to the contentions of the learned senior counsel. However, I find no force in the same. It may appropriately be noticed that the present is a case of regular second appeal and the assertions made by the learned senior counsel are factual in nature and no substantial question of law is shown to have been raised. The primary contention that has been urged is with regard to the fraud and misrepresentation having been committed by Bachan Singh plaintiff in respect of the agreement dated 14.12.1998. This aspect has been considered and gone into by the Courts below. The original agreement dated 14.12.1998 ex. P.1 was proved on record. Besides, the witnesses had been examined who testified regarding the execution of the agreement. This aspect has been considered and gone into by the Courts below. The original agreement dated 14.12.1998 ex. P.1 was proved on record. Besides, the witnesses had been examined who testified regarding the execution of the agreement. The Deed Writer also appeared and testified that he scribed the agreement at the instance of the defendant to whom the document was read over and explained. He put his thumb impression in token of its contents as correct and he made an entry in this regard in his register. The allegation that the agreement had been procured by the plaintiff Bachan Singh in collusion with his son Sardool singh at the instance of firm M/s Sanjeev Kumar Satish Kumar, Commission agent to whom defendant had been dealing with by selling his agriculture produce as well as taking of advance has also been considered. It was found that the agreement was executed in the presence of two witnesses, namely, satpal and Kashmir Singh. No substance was found in the contentions that had been raised on behalf of the defendant-appellant. The learned Additional district Judge has also considered all aspects of the matter and found the agreement to have been validly executed. The mere fact in the facts and circumstances of the case that an issue with regard to fraud and misrepresentation with respect to the agreement dated 14/12/1998 had not been framed is quite inconsequential. In fact, the issues as framed i. e. whether the plaintiff is entitled to possession of the suit property by way of specific performance of the agreement dated 14/12/1998, whether the suit is maintainable in the present form and whether the plaintiff has no cause of action and locus standi to file the present suit covers the matter with regard to fraud and misrepresentation. Even otherwise it is evident from the judgments recorded by both the Courts below that the parties were alive to the nature of dispute and have led evidence in support thereof. Therefore, the question of non-framing of issues in that regard pales into insignificance. In Kunju Kesavan V/s. M. M. Philip and others, AIR 1964 SC 164, it was held that where both the parties understanding the issues in the case, the absence of issue did not lead to mistrial sufficient to vitiate the decision. Therefore, the question of non-framing of issues in that regard pales into insignificance. In Kunju Kesavan V/s. M. M. Philip and others, AIR 1964 SC 164, it was held that where both the parties understanding the issues in the case, the absence of issue did not lead to mistrial sufficient to vitiate the decision. In the circumstances, the mere fact that no specific issue had been framed with regard to fraud and misrepresentation of the agreement dated 14.12.1998 as contended by the learned senior counsel does not result in mistrial so as to vitiate the decisions of the Courts below. The fact that the price of land is too low is also not of much significance as the agreement dated 14.12.1998 ex. P.1 had settled the sale price of the land in question. The said agreement has been held to be duly proved on record. Besides, no questions of law are shown to be involved. In the circumstances, there is no merit in this appeal and the same is accordingly dismissed.