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2010 DIGILAW 2645 (PNJ)

Ambu v. Surjit Singh

2010-09-14

RAKESH KUMAR GARG

body2010
JUDGMENT Mr. Rakesh Kumar Garg, J. CM No.10892-C of 2010 Application is allowed subject to all just exceptions. RSA No.3713 of 2010(O&M) This is defendant’s second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for possession of the suit land by way of specific performance of the agreement to sell in question was decreed. 2. As per averments made in the plaint, the defendant-appellant who was the owner of the suit property, approached the plaintiff-respondent along with his son Tarsem Singh to sell the same. The appellant entered into an agreement to sell the property in dispute with the plaintiff and received a sum of Rs.70,000/- as earnest money in the presence of witnesses and executed the aforesaid agreement. The sale deed was agreed to be executed on or before 31.12.1995 on receipt of balance sale consideration. It was the further case of the plaintiff-respondent that he remained ready and willing to perform his part of the contract and was still ready to do so but the defendant failed to perform his part. Hence, necessity arose to file the present suit. 3. Upon notice, the defendant appeared and filed written statement by raising various preliminary objections. On merits, it was denied that the defendant along with his son ever approached the plaintiff. It was further denied that the defendant agreed to execute agreement to sell dated 2.11.1994 and received an earnest money of Rs.70,000/- . It was further averred that the plaintiff was a commission agent whereas the defendant was a poor farmer. The plaintiff being in a dominant position, succeeded in getting executed the said forged agreement to sell in question. In fact, the defendant had obtained a loan of Rs.60,000/- from the plaintiff which was to be returned after selling the wheat crop. Thus, the borrowed amount became Rs.70,000/- after calculating interest of 8 months @ 2% per month and the same has been shown as earnest money by the plaintiff. In fact, the defendant returned the whole borrowed amount to the plaintiff and the balance amount was given to others. Other averments of the plaint were denied emphatically. It was further stated that the matter was resolved by the respectables after accounting and calculating the amount and therefore, the suit being false was liable to be dismissed. 4. No replication was filed. Other averments of the plaint were denied emphatically. It was further stated that the matter was resolved by the respectables after accounting and calculating the amount and therefore, the suit being false was liable to be dismissed. 4. No replication was filed. From the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the defendant agreed to sell suit property for agreement dated 2.11.96 to the plaintiff and for at the eleven per cent Rs.40,000/- per killa and as earnest money? OPP 2. If issue no.1 is proved whether the plaintiff had always been ready and willing to perform his part of the contract? OPP 3. Whether the plaintiff is entitled to the decree of specific performance by the contract or to the alternative relief or to recovery of Rs.40,000/- along with interest @ 18% per annum? OPP 4. Whether the agreement in question is result of undue influence of the plaintiff over the defendant as pleaded? OPD 5. Relief.” 5. After hearing learned counsel for the parties and going through the evidence on record, the trial Court decreed the suit of the plaintiff for possession by way of specific performance of the agreement. 6. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the defendant-appellant filed an appeal before the Lower Appellate Court which was also dismissed. 7. Still not satisfied, the appellant has approached this Court by filing the instant appeal submitting the following substantial questions of law in the memo. Of appeal: “(i) Whether the courts below have misread the pleadings, evidence and documents on the record of the case while allowing this suit of the respondent? (ii) Whether the action of the courts below is totally wrong, arbitrary, unconstitutional, against the evidence, pleading and documents on the record of the case and hence the impugned judgment and decree passed by courts below are liable to be set aside? (iii) Whether the appellant has executed an agreement to sell dated 2.11.1996 with respondent/plaintiff? (iv) Whether the respondent/plaintiff was ready and willing to execute the sale deed on the date fixed for execution? (v) Whether the agreement to sell dated 2.11.1996 is a result of fraud, forgery and manipulation and hence the suit is liable to be dismissed? (vi) Whether a grave and manifest injustice has been caused to the appellant?” 8. (iv) Whether the respondent/plaintiff was ready and willing to execute the sale deed on the date fixed for execution? (v) Whether the agreement to sell dated 2.11.1996 is a result of fraud, forgery and manipulation and hence the suit is liable to be dismissed? (vi) Whether a grave and manifest injustice has been caused to the appellant?” 8. In support of the appeal, learned counsel for the appellant has vehemently argued that the Courts below have misread and misinterpreted the pleadings and the evidence on record and therefore, the findings of the Courts below being perverse are liable to be set aside. Elaborating further, learned counsel for the appellant has submitted that the evidence of the appellant was erroneously closed by order of the Court, vide order dated 19.9.2005 which has resulted into miscarriage of justice to the appellant and therefore, the impugned judgment and decrees are liable to be set aside. 9. I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. 10. Both the Courts below on appreciation of evidence have recorded a concurrent finding of fact that the agreement in question stood proved. Admittedly, the evidence of the appellant was closed by order and there was no rebuttal to the evidence led by the plaintiff-respondent. The aforesaid order was not challenged by the appellant and had become final. Neither it has been shown as to how the aforesaid order was wrong or illegal. 11. In these circumstances, no fault can be found with the findings recorded by the Courts below. 12. Thus, I find no merit in this appeal. ————————————