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2008 DIGILAW 719 (PNJ)

Pardeep Kumar v. Rashpal Singh

2008-03-18

T.P.S.MANN

body2008
JUDGMENT T.P.S. Mann, J.:-The defendants have filed the present second appeal under Section 100 of the Code of Civil Procedure against the judgments and decrees passed by the learned lower Courts, whereby the suit filed by Rashpal Singh-respondent for joint possession by way of specific performance of agreement to sell dated 29.6.1993 was decreed and the first appeal filed by the appellants dismissed. 2. The case of the plaintiff-respondent was that on 29.6.1993, Kishan Chand, predecessor-in-interest of the defendants entered into an agreement to sell land measuring 31 kanals, out of total land measuring 128 kanals 4 marlas situated in village Tangralia. The price was agreed to be Rs. 72,500/- per acre and an amount of Rs. 2,70,000/- was received in cash by Kishan Chand from the plaintiff and it was further agreed that the sale-deed would be executed and got registered on or before 29.5.1996 after receiving the balance sale consideration of Rs. 11,037.50p. The plaintiff waited for the appearance of Kishan Chand on 29.5.1996 in the office of Sub Registrar, Mukerian along with balance sale consideration and expenses of registration but he did not turn up. The plaintiff got his presence marked in the evening by way of an affidavit. A notice was thereafter served upon the plaintiff by the defendants through their counsel and from the same, he came to know that Kishan Chand had died and the defendants were his legal heirs, therefore, bound to perform their part of the contract as per agreement to sell dated 29.6.1993. The defendants refused to perform their part of the contract and thus, intentionally and willfully breached the terms and conditions of the agreement to sell. The plaintiff had requested the defendants to admit his claim and to execute and the sale-deed in his favour but his efforts were in vain. He then filed the suit for joint possession by way of specific performance of the agreement in question. 3. The defendants opposed the suit and pleaded that deceased Kishan Chand never executed any such agreement. The plaintiff was a friend of Kishan Chand and wanted to take possession of their land. He even tried to get entries of khasra-girdawaries entered in his name which attempt was opposed by the defendants. The plea of the plaintiff was declined and he filed an appeal also which came to be dismissed. The plaintiff was a friend of Kishan Chand and wanted to take possession of their land. He even tried to get entries of khasra-girdawaries entered in his name which attempt was opposed by the defendants. The plea of the plaintiff was declined and he filed an appeal also which came to be dismissed. They also alleged that the agreement in question was a forged and fabricated document which was prepared by the plaintiff to defraud them. They, accordingly, prayed for the dismissal of the suit. 4. On the basis of the pleadings of the parties, a number of issues were framed but the contest was mainly on issue No.1 as to whether the predecessor of the defendants executed an agreement to sell dated 29.6.1993 in respect of the suit property in favour of the plaintiff. 5. On the basis of the evidence led by the parties, learned trial Court came to a conclusion that the predecessor of the defendants entered into an agreement of sale dated 29.6.1993 in favour of the plaintiff. This finding was later on affirmed by the learned lower Appellate Court. 6. The case of the defendants/appellants was that the agreement to sell dated 29.6.1993 was result of fraud, misrepresentation and that it was a fabricated document. In such a situation, they were required to plead in their written statement the specific details of such fraud or misrepresentation. No such details were mentioned in the written statement. Therefore, they cannot be now heard saying that the agreement to sell was result of fraud or misrepresentation. 7. The execution of agreement to sell has been proved by the plaintiff/respondent by examining Kuldip Singh and Charan Singh as PWs 1 and 2 respectively. Both of them stated in unequivocal terms that Kishan Chand executed agreement to sell Ex. P.1 with his own free will and consent. Further that the contents of the agreement to sell were read over and explained to him by the scribe, who after admitting the contents of the same to be correct, put his signatures on the same. Balwinder Singh, who had scribed the agreement to sell, was examined as PW4. Rajinder Singh, Stamp Vendor, while being examined as PW3, deposed that Kishan Chand purchased necessary stamp-papers for the execution of agreement to sell by putting his signatures at one point Ex. Balwinder Singh, who had scribed the agreement to sell, was examined as PW4. Rajinder Singh, Stamp Vendor, while being examined as PW3, deposed that Kishan Chand purchased necessary stamp-papers for the execution of agreement to sell by putting his signatures at one point Ex. PW3/A and that the fact of purchase of stamp-papers was duly entered in his register, copy of which stood proved as Ex. PW3/B. The plaintiff also appeared as his own witness as PW5 and corroborated the testimonies of his witnesses. 8. Learned counsel for the appellants submitted that the execution of agreement to sell was shrouded in mysterious circumstances as Kuldip Singh and Charan Singh, the two attesting witnesses were not residents of the village in which Kishan Chand lived. There is no requirement of law that the attesting witnesses should belong to the place to which the executor of the document belongs. The appellants have not been able to bring any material on the record to show that Kuldip Singh and Charan Singh had any reason to falsely depose against them. 9. Another argument submitted by learned counsel for the appellants was that out of the total sale consideration under the agreement to sell, Rs. 2,70,000/- had been paid and the balance consideration was merely Rs. 11,037.50p. and for such a petty amount the prospective buyer was not to be given a period of about three years to arrange for the same. It is true that practically the entire sale consideration had been paid by the plaintiff to Kishan Chand at the time of execution of agreement to sell and only a balance of Rs. 11,037.50p. remained yet that is no ground to hold that the agreement to sell had not been executed by Kishan Chand. It depends upon the relations between the parties to the agreement as to how much time was required to be given to the prospective buyer for paying the balance consideration and for the seller to execute the sale deed. 10. Another argument raised by learned counsel for the appellants was that the defendants could not be imputed with the knowledge that Kishan Chand, their predecessor-in-interest, had entered into an agreement to sell with the plaintiff on 29.6.1993. 10. Another argument raised by learned counsel for the appellants was that the defendants could not be imputed with the knowledge that Kishan Chand, their predecessor-in-interest, had entered into an agreement to sell with the plaintiff on 29.6.1993. It is the case of the plaintiff that he waited in the office of the Sub Registrar, Mukerian on 29.5.1996 with the balance sale consideration and expenses of registration but Kishan Chand did not turn up. Thereafter, a legal notice was got served by the defendants upon the plaintiff from which the latter came to know that Kishan Chand had expired and that the former were the legal heirs of Kishan Chand. As such the defendants were liable to perform their part of the agreement but when they refused to do the same, the plaintiff had no other option but to file the suit so as to seek specific performance of the agreement to sell dated 29.6.1993. No case is made out for disturbing the concurrent findings of facts arrived at by the learned lower Courts. No questions of law, much less substantial questions of law, as claimed by the appellants arise for consideration. The appeal is without any merit and therefore, dismissed. --------------------