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2012 DIGILAW 1119 (PNJ)

Ram Niwas v. Sharmila

2012-08-30

L.N.MITTAL

body2012
JUDGMENT L.N.MITTAL, J.(ORAL) For reasons mentioned in the application, which is accompanied by affidavit, delay of 10 days in filing the appeal is condoned. The application stands allowed accordingly. Main Case Defendants No.6 and 7 and legal representatives of defendant No.8 have filed this second appeal. Suit was filed by Dayanandplaintiff No.1 (since deceased and represented by respondents No.1 to 3 as legal representatives) and by Ashok Kumar plaintiff No.2 (respondent No.4) alleging that defendants No.1 to 3 (respondents No.5 to 7) agreed to sell the suit land measuring 4 kanals to plaintiffs and proforma defendant No.4 (since deceased an represented by respondents No.8 to 11 as legal representatives) and proforma defendant No.5 (respondent No.12) for `1,02,000/and received `64,000/as earnest money and executed agreement dated 26.08.1998. Sale deed was to be executed upto 26.10.1998. The plaintiffs and proforma defendants always remained ready and willing to perform their part of the contract and also attended the office of SubRegistrar on 26.10.1998 to get the sale deed executed in terms of the agreement but defendants No.1 to 3 (vendors) did not turn up and committed breach of the agreement. Accordingly the plaintiffs sought specific performance of the impugned agreement. Defendants No.1 to 3 in their written statement disclosed that they had sold the suit land to defendants No.6 to 8 vide sale deed dated 29.10.1998. Thereupon plaint was amended by impleading defendants No.6 to 8 and the sale deed dated 29.10.1998 in their favour was also challenged. Defendants No.1 to 3 and defendants No.6 to 8 contested the suit and controverted the plaint averments. Impugned agreement dated 26.081998 was denied. Defendants No.6 to 8 also claimed to be bonafide purchasers of the suit land for valuable consideration. Learned Civil Judge (Senior Division), Rewari vide judgment and decree dated 06.12.2006 dismissed the plaintiffs’ suit. However, first appeal preferred by plaintiffs has been allowed by learned Additional District Judge, Rewari vide judgment and decree dated 27.03.2008 and thereby suit filed by the plaintiffs has been decreed. Feeling aggrieved, defendants No.6 to 8 (subsequent vendees) have come up by way of instant second appeal. I have heard learned counsel for the parties and perused the case file. Plaintiffs have led ample evidence to prove execution of the impugned agreement and payment of earnest money. Feeling aggrieved, defendants No.6 to 8 (subsequent vendees) have come up by way of instant second appeal. I have heard learned counsel for the parties and perused the case file. Plaintiffs have led ample evidence to prove execution of the impugned agreement and payment of earnest money. In this regard, we have testimony of plaintiff No.1 Daya Nand as PW8, Krishan PW6 an attesting witness of the agreement and Raj Singh PW2 scribe of the agreement. All of them broadly stated according to the plaintiffs’ version. Defendants No.1 to 3 also refused to give their specimen thumb impressions and signatures for comparison with their alleged thumb impressions and signatures on the impugned agreement. Consequently adverse inference arises against them. Moreover, the plaintiffs have also examined handwriting and finger prints expert. He compared the alleged thumb impressions and signatures of defendants No.1 to 3 on the agreement with their standard thumb impressions and signatures and found the same to be matching. The impugned agreement purports to bear thumb impressions of defendants No.2 and 3 and signatures of defendant No.1. Execution of the agreement has been found proved by both the Courts below. The said concurrent finding is fully justified by the cogent evidence of the plaintiffs. Counsel for the appellants, however, contended that the impugned agreement was executed without consideration because plaintiff No.1 Dayanand as PW8 stated that the earnest money was paid in the presence of Raj Singh scribe PW2 who, however, denied the same. The contention is misconceived and untenable. Both Krishan PW6 and Dayanand PW8 have stated about payment of the earnest money to the vendors. Raj Singh PW2 has stated that although the amount was not paid in his presence but Ram Singhdefendant no.1 in his own handwriting and under his own signatures made recital in the margin of the agreement that they had received `64,000/in cash on the same day. This recital in the handwriting of defendant No.1 under his own signatures completely negatives the aforesaid contention of counsel for appellants. Moreover, there is also positive evidence of Krishan PW6 and Dayanand PW8 regarding said payment. There is also recital about receipt of the said amount in the main body of the agreement besides the aforesaid writing by Ram Singhdefendant No.1 in his own handwriting and under his own signatures. Moreover, there is also positive evidence of Krishan PW6 and Dayanand PW8 regarding said payment. There is also recital about receipt of the said amount in the main body of the agreement besides the aforesaid writing by Ram Singhdefendant No.1 in his own handwriting and under his own signatures. It is thus manifest that payment of earnest money of `64,000/by plaintiffs to defendants No.1 to 3 is fully proved. Counsel for the appellants also contended that Krishan PW6 has stated that the amount was not paid to the girls i.e. defendants No.2 and 3. However, defendants No.2 and 3 are none else but real sisters of defendant No.1 and if the entire amount was received by defendant no.1 for and on behalf of defendants No.1 to 3, it cannot be said that the earnest money was not paid to the vendors. Counsel for the appellants next contended that appellants are bonafide purchasers of the suit land for valuable consideration in ignorance of the agreement. This contention is also completely bereft of any substance. All the three sets of the parties i.e. plaintiffs and proforma defendants, defendants No.1 to 3 (vendors) and defendants No.6 to 8 (subsequent vendees) belong to the same village. Consequently it cannot be said that defendants No.6 to 8 while purchasing the suit land from defendants No.1 to 3 vide sale deed 29.10.1998, were unaware of impugned agreement which had been executed more than two months before the sale deed. In addition to it, Ram Singh defendant No.1 stated in crossexamination that defendants No.6 to 8 are their family members. Ram Singh also stated that defendants No.6 to 8 are his neighbours. In addition to it, sale deed dated 29.10.1998 in favour of defendants No.6 to 8 was executed in tearing hurry as date for execution of the sale deed stipulated in the impugned agreement was 26.10.1998 and sale deed in favour of defendants No.6 to 8 was executed just three days thereafter. The plaintiffs filed the instant suit on 30.10.1998 i.e. immediately after the date stipulated in the agreement for sale deed expired. Consequently the plaintiffs could do no more. It is thus manifest from all these circumstances that by no stretch can the appellants be said to be bonafide purchasers of the suit land in ignorance of the impugned agreement. For the reasons aforesaid, I find no merit in this second appeal. Consequently the plaintiffs could do no more. It is thus manifest from all these circumstances that by no stretch can the appellants be said to be bonafide purchasers of the suit land in ignorance of the impugned agreement. For the reasons aforesaid, I find no merit in this second appeal. Suit of the plaintiff has been rightly decreed by the lower Appellate Court. Finding of the lower appellate Court in this regard is not shown to be illegal or perverse or based on misreading or misappreciation of the evidence on record. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed being meritless.