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2008 DIGILAW 1836 (PNJ)

Dhan Singh v. Kanwar Bhan

2008-11-03

RAKESH KUMAR JAIN

body2008
JUDGMENT Rakesh Kumar Jain, J.:- The plaintiff is in second appeal against the judgment and decree of both the Courts below whereby his suit for specific performance has been dismissed. 2. The case of the plaintiff is that defendants No. 1 and 2 themselves and defendants No.3 and 4 through their power of attorney defendant No.2, entered into an agreement to sell with the plaintiff on 27.12.1988 for the sale of plot measuring 800 square yards for a consideration of Rs.1,20,000/-. As per the plaintiff the entire sale consideration was paid to defendants No.1 and 2 on the date of agreement against receipt and it was agreed between the parties that the sale deed shall be executed as and when desired by the plaintiff. It was further averred by the plaintiff that defendant No.9 Jagbir Singh proposed the plaintiff to purchase the said plot by offering him some profit but the plaintiff did not oblige him and defendant No.9 challenged the plaintiff that he would not get the sale deed executed in his favour. The plaintiff requested defendants No.1 and 2 to get the sale deed executed and registered but they avoided the same on one pretext or the other. Ultimately, the plaintiff sent a legal notice on 22.2.1989 but in the meanwhile defendants No.1 to 4 alienated the suit property in favour of defendants No.5 to 9 by executing different sale deeds on 2.3.1989. The plaintiff has thus challenged the legality and validity of the sale deeds executed by defendants No.1 to 4 in favour of defendants No.5 to 9 on the ground that they have violated the terms and conditions of agreement dated 27.12.1988 and also prayed for the specific performance of the agreement for which he was always ready and willing to perform his part of the contract. Defendant No.5 did not appear before the trial Court, therefore, she was proceeded against ex-parte whereas defendants No.6 to 8 who had appeared but, after some time they did not appear, were also proceeded against ex-parte. Defendants No. 1 to 4 filed their joint written statement in which they denied the existence of agreement as well as the receipt rather it was alleged that the agreement and the receipt dated 27.12.1988 is an act of fraud and manipulation on the part of the plaintiff as it does not bear the signatures of defendants No.1 and 2. Defendants No. 1 to 4 filed their joint written statement in which they denied the existence of agreement as well as the receipt rather it was alleged that the agreement and the receipt dated 27.12.1988 is an act of fraud and manipulation on the part of the plaintiff as it does not bear the signatures of defendants No.1 and 2. It was also alleged that the plaintiff has forged the signatures of the defendants on these documents i.e. the agreement and the receipt in collusion with his witnesses. It was averred by defendants No.1 to 4 that they have sold the plot in question to defendants No.5 to 9 as they have not entered into an agreement with the plaintiff. Defendant No.9 Jagbir filed a separate written statement and resisted the suit by taking a stand that defendants No.1 and 2 had entered into an agreement dated 16.12.1988 with regard to the plot in question and had executed registered sale deed in his favour as well as in favour of defendants No.5 to 8 on 2.3.1989. He also denied the allegations that he ever visited the house of the plaintiff or threatened him as stated by the plaintiff. The plaintiff filed replication controverting the averments made by defendants No.1 to 4 in the written statement and reiterated the stand taken by him in the plaint. 3. On the pleadings of the parties, the following Issues were framed by the trial Court: (i) Whether the defendants No.1 to 4 were the owners in possession of the suit property, as alleged? OPP. (ii)Whether the defendants No.1 to 4 executed an agreement on 27.12.1988 for the sale of suit property for a consideration of Rs.1,20,000/- as alleged? OPP. (iii) Whether the plaintiff paid Rs.1,20,000/- to the defendants No.1 to 4 as per receipt dated 27.12.1988 as alleged? OPP. (iv) If issue Nos.1 to 3 are proved then whether the defendants No.1 to 4 are bound to perform the part of the contract dated 27.12.1988, as alleged? OPP. (v) Whether the sale deeds No.4454 to 4457 dated 2.3.1989 executed by defendants No.1 to 4 in favour of defendants No.5 to 7 are illegal, null and void, as alleged? OPP. (vi) Whether the plaintiff has got no cause of action? OPD No.1 to 4. (vii) Whether the agreement and receipt dated 27.12.88 are an act of forgery and manipulation. If so its effect? OPP. (vi) Whether the plaintiff has got no cause of action? OPD No.1 to 4. (vii) Whether the agreement and receipt dated 27.12.88 are an act of forgery and manipulation. If so its effect? OPD No.1 to 4. (viii) Whether the defendants No.1 & 2 entered into an agreement to sell the land measuring 800 sq. yards with the defendant No.9 for a consideration of Rs.1,60,000/- on 16.12.1988 and executed sale deeds on 2.3.1989, as alleged? OPD No.9. (ix) Relief. 4. The trial Court while deciding issue No.1 held that defendants No.1 to 4 are the owners in possession of the suit property. With regard to issues No.2 and 3, it was held that defendants No.1 to 4 did not execute agreement to sell as well as receipt dated 27.12.1988 and the plaintiff did not pay any amount of Rs.l,20,000/- to defendants No.1 to 4. While deciding issue No.4, it was held that defendants No.1 to 4 are not bound to perform their part of contract dated 27.12.1988. On issue No.5, it was held that sale deeds No.4454 to 4457 dated 2.3.1989 executed by defendants No.1 to 4 in favour of defendants No.5 to 9 are valid. Issue No.6 was decided against the plaintiff and in favour of the defendants to the effect that the plaintiff has no cause of action. With regard to issue No.7, it was held that agreement and receipt dated 27.12.1988' is an act of fraud, forgery and manipulation. Issue No.8 was decided to the effect that defendants No.1 and 2 did not enter into agreement to sell the disputed plot to defendant No.9 for a consideration of Rs.1,60,000/- on 16.12.1988. However, it was held that defendant No.9 has purchased an area of 320 square yards out of the suit land from defendants No.1 to 4 by virtue of sale deed dated 2.3.1989 and the finding was returned in favour of the defendants. Issue No.5-A was also decided against the plaintiff holding that he has no locus standi to challenge the act of defendants. The first Appellate Court also returned a finding of fact to the effect that the agreement and receipt dated 27.12.1988 have not been proved to be executed by the defendants in favour of the plaintiff. 5. Sh. Issue No.5-A was also decided against the plaintiff holding that he has no locus standi to challenge the act of defendants. The first Appellate Court also returned a finding of fact to the effect that the agreement and receipt dated 27.12.1988 have not been proved to be executed by the defendants in favour of the plaintiff. 5. Sh. Sandeep Kotla, Advocate, learned counsel appearing for the appellant has raised only one argument before this Court that the defendants have not produced any Hand-writing Expert in order to deny the signatures of the defendants on the said agreement as well as the receipt. 6. On the other hand, Sh. Avinash Chander Jain, Advocate, counsel for respondents No.2 to 4, has submitted that once the defendants have denied their signatures on the agreement and the receipt, they are not required to prove the same in negative. 7. I have heard learned counsel for the parties and have carefully perused the record. 8. It is not disputed that burden of proof in respect of issues No.2 and 3 was upon the plaintiff in which he had to prove that defendants No.1 to 4 executed agreement dated 27.12.1988 and had also received a sum of Rs.1,20,000/- on the same day against a receipt. Agreement and receipt are on record as Ex.PW5/1 and Ex.PW5/2. The burden of proof in respect of these two documents was upon the plaintiff who is to stand on his own legs but he did not get examined the documents through’ his own Hand-writing, Expert to prove the genuineness of the signatures appended on these documents by the defendants as alleged by him rather the plaintiff is trying to shift his burden upon the defendants on the ground that though the defendants had not engaged a Hand-writing Expert, who had obtained disputed and admitted signatures of the defendants but the defendants did not examine him, therefore, adverse inference should be drawn against them in this regard. The learned first Appellate Court has observed in para 19 of its judgment that the learned trial Court itself compared the specimen signatures with the disputed signatures on the agreement to sell Ex.PW5/1 and receipt Ex.PW5/2 and arrived at a conclusion that the agreement to sell Ex.PW5/1 and receipt Ex.PW5/2 did not bear the signatures of defendants No.1 and 2. The learned first Appellate Court has observed in para 19 of its judgment that the learned trial Court itself compared the specimen signatures with the disputed signatures on the agreement to sell Ex.PW5/1 and receipt Ex.PW5/2 and arrived at a conclusion that the agreement to sell Ex.PW5/1 and receipt Ex.PW5/2 did not bear the signatures of defendants No.1 and 2. The first Appellate Court also relied upon a decision in the case of M/s. Sudhir Shrikant Mirje Nipani & Others Vs. Krishnaji Marutirao Shendure, 1998(3) CCC 716 (Karnataka) and has further observed as under: “It is not essential that hand-writing must be examined to prove or disprove disputed signature and Court can form its own opinion by comparing the disputed signatures with the admitted signatures. Further it has been held that where the trial Court has based its conclusion solely on its own opinion arrived at as result of such comparison, it can not be regarded as error in law and Court of Second appeal has no power to set aside such finding on the ground that it is not based on evidence.” In view of the above discussion and findings of fact recorded by both the Courts below, I do not find involvement of any question much less a substantial question of law in the present appeal and therefore, the present appeal is hereby dismissed. No order as to costs. ----------------------