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2012 DIGILAW 258 (HP)

Bhag Chand v. Mani Chand

2012-05-07

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 29.2.2012 rendered by the learned District Judge, Kullu in Civil Appeal No. 47/2011. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as plaintiff for convenience sake) filed a suit against the appellant-defendant (hereinafter referred to as defendant for convenience sake) for possession by way of specific performance of agreement to sell dated 10.10.2006 Ex. PW-4/B. Case of the plaintiff, in a nutshell, is that defendant has entered into agreement to sell with him dated 10.10.2006 with respect to the land measuring 0-11-9 bighas being 1/9 share of the total land measuring 5-3-0 bighas comprised in Khata Khatauni No. 252/314, Khasra No. 669/367 situated in Phati Mohal, Kothi Khokhan, Tehsil and District Kullu for a consideration of Rs. one lakh. Defendant received a Rs. 50,000/- vide cheque No. CA 625622 dated 10.10.2006 drawn at State Bank of Patiala, Branch Kullu and Rs. 30,000/- in cash on 10.10.2006 at the time of execution of agreement to sell. Rs. 20,000/- was received by him on 10.1.2007 and the receipt was obtained on the reverse side of the agreement. Defendant has agreed to execute registered sale deed by 31.12.2007. Plaintiff remained present in the Tehsil Complex but the defendant did not turn. Plaintiff was ready and willing to perform his part of contract. He had also arranged money to be incurred for the execution and registration of the sale deed. Legal notice was served upon the defendant on 2.2.2008. 3. The suit was resisted and contested by the defendant. According to him, he had borrowed a sum of Rs. 50,000/- from the plaintiff for the treatment of his wife. His signatures were obtained on a blank stamp paper and he also issued a blank cheque in favour of the plaintiff. According to him, he has never entered into agreement dated 10.10.2006. He has denied receiving a sum of Rs. 20,000/- as well. 4. Replication was filed by the plaintiff. Issues were framed by the trial court on 15.7.2010. Suit was decreed by the trial court on 27.6.2011. Defendant preferred an appeal before the District Judge, Kullu. He dismissed the same on 29.2.2012. Hence, the present Regular Second Appeal. 5. Mr. He has denied receiving a sum of Rs. 20,000/- as well. 4. Replication was filed by the plaintiff. Issues were framed by the trial court on 15.7.2010. Suit was decreed by the trial court on 27.6.2011. Defendant preferred an appeal before the District Judge, Kullu. He dismissed the same on 29.2.2012. Hence, the present Regular Second Appeal. 5. Mr. Bimal Gupta, on the basis of the substantial questions of law framed, has argued that both the courts below have misinterpreted and misconstrued the oral as well as documentary evidence led by the parties. According to him, the suit was barred by limitation. He also argued that Ex.PW-4/B has not been duly proved. 6. I have heard Mr. Bimal Gupta and have gone through the judgments carefully. 7. Plaintiff has appeared as PW-2. He has led his evidence by way of affidavit Ex.PW-2/A. He has reiterated the pleadings made in the plaint. He has denied that he had not paid any payment to the defendant. He has denied that signatures of defendant were taken on blank paper. 8. PW-1 Mukesh Vaid, Senior Assistant of State Bank of Patiala has also tendered his evidence by way of affidavit Ex.PW-1/A. He has produced the record pertaining to cheque No. CA-625622 dated 10.10.2006 issued by the plaintiff against his account. The cheque was encashed on 10.10.2006 by the defendant. He has specifically testified that payment of the cheque was made to the defendant, who had encashed the cheque. 9. PW-3 Beli Ram has also tendered his evidence by way of affidavit Ex.PW-3/A. According to him, agreement to sell was entered into between the parties on 10.10.2006 for a sum of Rs. one lakh. It was scribed by Bhuvneshwar Dutt (PW-4) at the instance of defendant. The contents of the same were read over to the parties and thereafter they put their signatures in presence of each other. He has proved his signatures on the agreement to sell. He has admitted that the value of land at Mohal is Rs. one lakh per biswa. 10. PW-4 Bhuvneshwar Dutt has also led his evidence by way of affidavit Ex.PW-4/A. According to him, he has scribed the agreement to sell on 10.10.2006 at the instance of defendant. The agreement to sell was read over to the parties in presence of the parties. The agreement to sell was also entered in his register at page 308 at Sr. PW-4 Bhuvneshwar Dutt has also led his evidence by way of affidavit Ex.PW-4/A. According to him, he has scribed the agreement to sell on 10.10.2006 at the instance of defendant. The agreement to sell was read over to the parties in presence of the parties. The agreement to sell was also entered in his register at page 308 at Sr. No.658 dated 10.10.2006. 11. Defendant has also led his evidence by way of affidavit Ex.DA. He reiterated the pleadings made in the written statement. He has admitted that the plaintiff was agriculturist and also contractor. He has admitted that he signed on the document Ex.PW-4/B. He has also admitted that after the agreement to sell, he encashed cheque of Rs. 50,000/-. He has admitted that he has signed on the last page of the agreement to sell. He also admitted that he has signed on the register of Deed Writer. 12. It is evident from Ex.PW-1/B, statement of account, that cheque of Rs. 50,000/- dated 10.10.2006 was encashed by the defendant. Ex.PW-1/C is the cheque for a sum of Rs. 50,000/-. Plaintiff has duly proved Ex.PW-4/B by producing attesting witness and scribe, i.e. PW-3 and PW-4. It is proved from the statements of PW-2 and PW-3 that a sum of Rs. 30,000/- was also paid to the defendant and a sum of Rs. 50,000/- was paid by way of cheque Ex.PW-1/C. It is also proved from the receipt that the defendant has received a sum of Rs. 20,000/- from the plaintiff. He has put his signatures on all the pages. Though, stand of the defendant initially was that plaintiff is a money-lender, but in his cross-examination, he has admitted that he was agriculturist and contractor. Plaintiff was always ready and willing to perform his part of contract. He has served notice upon the defendant on 2.2.2008. Defendant has admitted the receipt of notice. He has not filed reply to the notice. In fact, the plaintiff has completed all the codal formalities arising out of Ex.PW-4/B. He has paid a sum of Rs. one lakh to the defendant by way of cheque and cash. He remained present in the Tehsil Office on 31.12.2007, but the defendant did not turn up. Learned first appellate court has balanced the equities by ordering the plaintiff to pay additional sum of Rs. one lakh to the defendant by way of cheque and cash. He remained present in the Tehsil Office on 31.12.2007, but the defendant did not turn up. Learned first appellate court has balanced the equities by ordering the plaintiff to pay additional sum of Rs. one lakh to the defendant over and above the amount, which he has already paid taking into consideration the escalation of the land price in and around Manali town. 13. Accordingly, learned first appellate court has correctly appreciated the oral as well as documentary evidence led by the parties and there is no substantial question of law involved in the Regular Second Appeal and as such the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.