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2012 DIGILAW 293 (PNJ)

Bhola Singh v. Kulwant Singh

2012-02-21

TEJINDER SINGH DHINDSA

body2012
Judgment Tejinder Singh Dhindsa, J. The defendant-appellant is in second appeal before this Court. Briefly noticed, the plaintiff filed a suit for possession by way of specific performance of the agreement to sell dated 2.5.2007 stated to have been executed by the defendant in his favour with regard to land measuring 4 bighas 16 biswas situated at village Daun Khurd, Tehsil & Distt. Patiala along with the right of passage and motor connection of 7.5 BHP. Plaintiff also prayed for the relief of permanent injunction for restraining the defendant from alienating/transferring of the suit land in any manner. It was pleaded that the agreement to sell dated 2.5.2007 had been entered into between the plaintiff and defendant in regard to the suit property for a total sale consideration of Rs.3,25,000/- and such agreement was executed in the presence of the attesting witnesses. An amount of Rs.1,75,000/- was paid towards earnest money and the last date for execution of the sale deed was stipulated to be on or before 2.5.2008. The plaintiff pleaded that he was always ready and willing to perform his part of the contract and that he had remained present in the office of the Sub-Registrar, Patiala on 2.5.2008 along with the balance sale consideration as also the amount for the purchase of stamp papers and other expenses but the defendant failed to come present. Accordingly, plaintiff had got his presence marked by moving an application and getting an affidavit attested on such date i.e. 2.5.2008. A legal notice dated 6.5.2008 was also got issued by the plaintiff through counsel calling upon the defendant to get the sale deed executed but as the defendant had refused to get the needful done and was threatening to alienate the suit property as such the suit had been instituted. The suit was contested in terms of filing of a written statement by the defendant taking up a plea that no such agreement to sell pertaining to the suit property had been entered into. It was stated that the plaintiff and defendant had enjoyed good relations and by taking advantage of the same the plaintiff had obtained the thumb impression of the defendant over the blank stamp papers so as to facilitate the sanctioning of a loan from the Cooperative Bank. It was stated that the plaintiff and defendant had enjoyed good relations and by taking advantage of the same the plaintiff had obtained the thumb impression of the defendant over the blank stamp papers so as to facilitate the sanctioning of a loan from the Cooperative Bank. It was stated that the plaintiff had used such stamp papers to forge and fabricate the alleged agreement to sell dated 2.5.2007. The defendant denied receiving any earnest money and stated that there was no intention on his part to sell the suit property at any point of time. Upon the pleadings of the parties, the following issues were framed by the Trial Court:- “1. Whether the defendant entered into an agreement to sell dated 2.5.2007 to sell the land measuring 1 bigha 16 biswas in favour of the plaintiff as alleged? OPP. 2. If issue no.1 is proved, whether the plaintiff is entitled for the decree of possession by way of specific performance of agreement to sell? OPP 3. Whether the plaintiff is entitled to the relief of permanent injunction then as prayed for? OPD 4. Whether the suit of the plaintiff is maintainable? OPP 5. Whether the suit of the plaintiff is false and frivolous to the knowledge of the plaintiff? OPP 6. Whether the plaintiff has concealed the true and material facts from the court? OPD. 7. Relief.” Having heard respective counsel for the parties and having scanned the evidence led on record the suit of the plaintiff was decreed for specific performance of the agreement to sell dated 2.5.2007 in respect to the suit property upon payment of balance sale consideration. The defendant was also restrained from alienating the suit property in any manner to any other person. A time period of two months to deposit the balance sale consideration and for getting the sale deed executed qua the suit property was fixed failing which it was made clear that the suit of the plaintiff would be deemed to have been dismissed. Defendant-appellant preferred a civil appeal and vide impugned judgment dated 24.10.2011 passed by the Additional District Judge, Patiala, the findings of the Trial Court have been upheld and appeal has been dismissed. Resultantly, the defendant-appellant is in second appeal before this Court. I have heard Mr. S.K. Chopra, learned counsel appearing on behalf of the appellant at length. Defendant-appellant preferred a civil appeal and vide impugned judgment dated 24.10.2011 passed by the Additional District Judge, Patiala, the findings of the Trial Court have been upheld and appeal has been dismissed. Resultantly, the defendant-appellant is in second appeal before this Court. I have heard Mr. S.K. Chopra, learned counsel appearing on behalf of the appellant at length. Learned counsel would strenuously argue that the onus of proving the due execution of the agreement to sell was on the plaintiff-respondent and such onus having not been discharged, a suit of specific performance could not have been decreed. Learned counsel would refer to the testimony of PW-1 in raising a contention that such witness in the cross-examination had stated that the agreement in question had been typed at the house of the plaintiff-respondent and PW-2 and PW-3 had on the contrary deposed that the agreement in question had been scribed at the Tehsil Office. Such contradiction as per learned counsel for the appellant would be sufficient to demonstrate that the agreement to sell had never been executed and was a false and fabricated document. Both the courts below have returned a concurrent finding as regards the agreement to sell dated 2.5.2007 to be duly proved in accordance with law. PW-1 and PW-3 were the attesting marginal witnesses, who were examined to prove the agreement to sell. Even the stamp vendor, PW-4 from whom the stamp papers were purchased and which were used for the agreement to sell had deposed to prove the execution of the agreement to sell. Ex.P-4/A was the copy of a register, maintained by the stamp vendor containing the thumb impression of the defendant-appellant towards token of the purchase of the stamp papers for the purpose of executing the agreement to sell in question. The Lower Appellate Court has not found any inconsistency in the deposition of PW-1, PW-2 and PW-3 with regard to any material aspect in relation to the execution of the agreement. The court below has concluded that a stray line in the cross-examination of the witnesses could not be read in isolation but it is the entire deposition of a witness/witnesses, which was required to be examined. I find no infirmity or error in the conclusions drawn by the courts below. The findings and conclusions recorded by the courts below are based on cogent and valid reasoning. I find no infirmity or error in the conclusions drawn by the courts below. The findings and conclusions recorded by the courts below are based on cogent and valid reasoning. That apart, the entire defence taken by the defendant-appellant was to the effect that the agreement to sell had been set up fraudulently in as much as certain blank stamp papers on which the thumb impressions had been obtained by the plaintiff-respondent for facilitation of a bank loan, had been misused. However, the defendant-appellant, DW-1 in his own cross-examination stated that he had never thumb marked any blank stamp paper on the asking of anybody till date. Such statement of the defendant-appellant himself falsifies the entire plea of fraud and conclusion set up by him against the plaintiff-respondent. The agreement to sell dated 2.5.2007 having been held to be duly proved in terms of concurrent findings recorded by both the courts below, I also find that the plaintiff-respondent had always been ready and willing to perform his part of the contract. Readiness and willingness would require to be construed from the conduct of the parties. In the facts of the present case out of a total sale consideration of Rs.3,25,000/- a sum of Rs.1,75,000/- had already been paid towards earnest money. On the date fixed for execution of the sale deed i.e. 2.5.2008 the plaintiff-respondent had remained present in the office of the Sub Registrar, Patiala. Upon the defendant-appellant having not come present a legal notice through counsel dated 6.5.2008 was got issued to the defendant-appellant without any delay. Still further the present suit for specific performance was instituted on 2.6.2008 itself, which is a clear pointer towards the readiness and willingness of the plaintiff-respondent to perform his part of the contract. In the light of the reasons recorded above, I do not find any error or perversity in the findings recorded by the courts below. The present second appeal must, accordingly, fail as it does not raise any question of law much less substantial question of law. Appeal dismissed.