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2012 DIGILAW 652 (PNJ)

Sukhraj Singh v. Harbans Kaur

2012-05-01

JASWANT SINGH

body2012
JUDGMENT JASWANT SINGH, J. Present CM has been filed seeking condonation of 68 days delay in filing the present appeal. For the reasons stated in the application which is duly supported by affidavit, the same is allowed and delay of 68 days in filing the present appeal is condoned. Plaintiff/appellant is in second appeal against the concurrent findings of both the courts below whereby his suit for possession by way of specific performance of agreement to sell was dismissed by learned Additional Civil Judge(Senior Division), Moga vide its judgment and decree dated 19.05.2009 and the findings thereof have been affirmed in appeal by the learned Additional District Judge, Moga vide judgment and decree dated 14.10.2011. Brief facts for proper adjudication of the case are that defendant no.1 was recorded as owner of 7/16 share out of the total land mentioned in the plaint. Defendant no.1 appointed Harbans Singh(her real brother) as her attorney vide registered power of attorney dated 11.5.1993, who in turn entered into agreement to sell dated 27.12.1994 for selling the entire share of defendant no.1 with the plaintiff. The price fixed for this land was Rs.2 lac and out of this, the plaintiff alleged that Rs.1 lac was received as earnest money by Harbans Singh on behalf of defendant no.1. The last date to execute the sale deed was fixed on or before 19.6.1998. However, said Harbans Singh died before the execution of the sale deed. It was further averred that the plaintiff came to know that defendant no.1 is living in a foreign country and in the month of April 1999 when he came to know that defendant no.1 would be visiting India, he tried to contact her but she evaded meeting him. Ultimately the plaintiff alleged that he was able to contact defendant no.1 on 15.4.1999, who assured him to get the sale deed executed in his favour. However, later on plaintiff alleged that he came to know that defendant no.1 got executed a sale deed in favour of defendant no.2, who is the minor son of Darshan Singh(real brother of defendant no.1). Hence the suit. Upon notice, defendant no.1 did not turn up and was proceeded against ex-parte. Defendant no.2 filed his written statement inter alia contending that the suit is barred by time. Hence the suit. Upon notice, defendant no.1 did not turn up and was proceeded against ex-parte. Defendant no.2 filed his written statement inter alia contending that the suit is barred by time. He raised the plea that he is a bonafide purchaser for consideration and without notice and the agreement in question dated 27.12.1994 is a forged and fabricated document. It was also contended that the price of the land is much more than what has been mentioned in the impugned agreement to sell. Thus he prayed for dismissal of the suit. Replication was filed wherein entire contents of the plaint were reiterated and that of the written statement were denied. From the pleadings of the parties issues were framed. Both the sides led their respective evidence in support of their claims. After appreciating the evidence of both the sides, the trial Court dismissed the suit of the plaintiff/appellant vide judgment and decree dated 19.05.2009 and the findings thereof have been affirmed in appeal by the learned lower Appellate Court vide its judgment and decree dated 14.10.2011. Hence the present second appeal. I have heard learned Counsel for the appellant and have gone through the case file very carefully with his able assistance. Learned Counsel for the plaintiff/appellant has argued that the judgments and decrees passed by both the courts below are perverse and bad in the eyes of law as the same are not based on proper appreciation of facts and circumstances of the case in hand and the law prevalent at present. He has further argued that no adverse inference can be drawn against him for not entering into the witness box to prove his readiness and willingness regarding the agreement in question. After hearing the learned Counsel for the appellant, this court is of the considered opinion that the appeal deserves to be dismissed for the reason that by now it is settled position of law that a person who is in the knowledge of the facts personally has to give his evidence on his own and nobody else can give evidence on his behalf. In the present case, the plaintiff had not entered into witness box to substantiate his plea regarding readiness and willingness to perform his part of the contract. In the present case, the plaintiff had not entered into witness box to substantiate his plea regarding readiness and willingness to perform his part of the contract. There is no cogent explanation as to why the plaintiff had not entered into the witness box so as to elucidate the truth regarding the facts and circumstances of the case. Thus, in my considered opinion both the courts below were right in taking adverse inference against the plaintiff for not stepping into the witness box. In the present case defendant no.2 had been able to prove his assertions of the sale deed having been executed in his favour by examining the marginal witness of this sale deed and further from the statement of DW-3 Darshan Singh it is proved that defendant no.2 is a bonafide purchaser for consideration without notice. There nothing in evidence that has been brought forth by the appellant so as to show that defendant no.2 was not a bonafide purchaser and that he was in knowledge regarding the execution of the agreement to sell. In such a scenario it cannot be said that defendant no.2 is not a bonafide purchaser. Although in the present case the plaintiff has been able to prove the agreement to sell in question, however, he has failed to prove and bring on record any kind of evidence in terms of documentary or oral so as to fulfill the ingredients as required under Section 16(c) of the Specific Relief Act. In such a scenario, this Court has no other option but to dismiss the appeal for lack of evidence to prove the plea of plaintiff being ready and willing to perform his part of the contract coupled with the fact that defendant no.2 has been able to prove that he is a bonafide purchaser. In view of the above, finding no question of law much less substantial question of law arising for determination in the present appeal, the same is hereby dismissed.