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2013 DIGILAW 222 (HP)

BALA RAM v. DEVI SINGH

2013-04-03

DHARAM CHAND CHAUDHARY

body2013
JUDGMENT DHARAM CHAND CHAUDHARY, J. - 1. AGGRIEVED by the judgment and decree dated 4.9.2001 passed by learned District Judge, Kullu in civil appeal No.68 of 2001 whereby the appeal has been dismissed and the judgment and decree dated 19.5.2001 passed by learned Senior Sub Judge, Kullu in civil suit No.58 of 1996 is affirmed, the appellant has filed the present appeal. 2. PROFORMA respondent (hereinafter referred to as 'defendant No.1') allegedly executed an agreement Ex.PW-1/A to sell out the suit land entered in khata/ khatauni No.249/629, Khasra No.3627 to the extent of 2/5th share, i.e. 17 biswas of total land measuring 2-3 bighas, Khata/Khatauni No.252/634, Khasra No.3628 to the extent of 1/5th share i.e. five Biswas of total land measuring 1-6 bighas and land comprising Khata/Khatauni No.254/637, Khasra No.3623, 3629 to the extent of 1/5th share, i.e. 1-4 bighas of total land measuring 6-2 bighas, total 2-6-0 bighas situated in Phati Gramang, Kothi Choparsa, Tehsil and District Kullu to respondent No.1 (hereinafter referred to as 'the plaintiff') for a sum of Rs.8,500/- on 8.6.1992. A sum of Rs.5,000/- was paid on the date of execution of the agreement itself towards part payment of the sale consideration and remaining Rs.3,500/- was agreed to be paid on 20.6.1993, the date when the sale deed was agreed to be executed. On 20.6.1993 the plaintiff remained present in the office of Sub-Registrar, Kullu throughout the day, however, defendant No.1 did not turn up. He sworn in an affidavit also to this effect, which is Ex.PW-1/B, duly attested by the Executive Magistrate, Kullu on 21.6.1993. Subsequently, defendant No.1 was served with legal notice Ex.PW-2/B, however, despite that also, he did not turn up for execution of the sale deed and to the contrary sold the suit land vide sale deed Ex.D-X dated 8.4.1993 to appellant (hereinafter referred to as 'defendant No.2'). This has led in filing the suit in the Court of learned Senior Sub Judge, Kullu for the decree of possession of suit land by way of specific performance of contract dated 18.6.1992 and declaration that the sale deed dated 8.4.1993 being void is not binding upon the plaintiff. This has led in filing the suit in the Court of learned Senior Sub Judge, Kullu for the decree of possession of suit land by way of specific performance of contract dated 18.6.1992 and declaration that the sale deed dated 8.4.1993 being void is not binding upon the plaintiff. Defendant No.1 in written statement to the suit has denied the execution of agreement to sell Ex./PW-1/A and came forward with a version that his signatures were obtained by the plaintiff on some blank papers at the pretext that the Government had started a scheme providing thereunder loan and subsidy to poor people for establishment of weaving unit and that he can avail such facility of loan and subsidy. The plaintiff is Pradhan of Gram Panchayat, therefore, he acted upon the representation so made by him and signed the blank papers. 3. DEFENDANT No.2, on the other hand, has come forward with the version that he is a bonafide purchaser of the suit land for value and consideration without having any notice or knowledge of the alleged agreement to sell executed by defendant No.1 in favour of the plaintiff. Therefore, the plaintiff allegedly has no right, title or interest in the suit land. 4. IN replication, the plaintiff has reiterated the case as set out in the plaint. On such pleadings of the parties, the following issues were famed by the trial Court and the court below tried the parties on all the issues so framed: 1. Whether there was a valid agreement to sell between the plaintiff and defendant No.1 of the suit land for Rs.8500/-? OPP. 2. Whether the defendant No.1 has received consideration of Rs.5000/- as earnest money towards execution of the agreement as alleged? OPP. 3. Whether the plaintiff is still ready and willing to perform his part of contract and the defendant No.1 has failed to do so as alleged? OPP. 4. Whether sale deed dated 8.4.1993 is fictitious and has been made to defeat the right of the plaintiff as alleged? OPP. 5. Whether the plaintiff is entitled to the specific performance of the contract? OPP. 6. Whether the suit is not maintainable? OPD. 7. Whether the suit of the plaintiff is within limitation? OPD. 8. Whether the suit is bad for non-joinder of necessary parties? OPD. 9. OPP. 5. Whether the plaintiff is entitled to the specific performance of the contract? OPP. 6. Whether the suit is not maintainable? OPD. 7. Whether the suit of the plaintiff is within limitation? OPD. 8. Whether the suit is bad for non-joinder of necessary parties? OPD. 9. Whether defendant No.2 is bonafide purchaser for consideration without notice or knowledge of the alleged agreement to sell in favour of plaintiff as alleged? OPD-2. 10. Whether the plaintiff has no locus-standi to file the suit? OPD. 11. Relief. 5. THE plaintiff in support of the case, he set out in the plaint, has himself stepped in the witness box as PW-2 and examined the scribe of the so called agreement Ex.PW-1/A, Shri Bhuvneshwar Dutt, PW-1 and marginal witness thereto Shri Prem Chand, PW-3. 6. THE defendant No.1 has also stepped in the witness box as DW-1, whereas, defendant No.2 as DW-2. Learned trial Court on appreciation of the oral as sell as documentary evidence has concluded that the execution of agreement to sell Ex.PW-1/A by defendant No.1 in favour of plaintiff stands satisfactorily proved. Also that the plaintiff was always ready and willing to perform his part of the contract, however, it was defendant No.1 who failed to perform his part of the contract and as a result thereof, the sale deed could not be executed irrespective of the said defendant received Rs.5,000/- in advance from the plaintiff. The sale deed of suit land Ex.D-X in favour of defendant No.2 was not held to be proved on record and as a result thereof the suit has been decreed. 7. THE first appellate Court while concurring with the judgment and decree passed by the trial Court has also dismissed the appeal. 8. THE legality and validity of the impugned judgment and decree has been assailed on the grounds, inter alia, that there is no evidence available on record to suggest that a valid agreement to sell the suit land to the plaintiff exists. The defendant No.1 has not executed any agreement to sell the suit land to the plaintiff. The signatures of the said defendant have also not been proved on the agreement to sell Ex.PW-1/A. The plaintiff being Pradhan and an influential person had obtained the signatures of defendant No.1 on allurement of getting loan and subsidy sanctioned in his favour. The defendant No.1 has not executed any agreement to sell the suit land to the plaintiff. The signatures of the said defendant have also not been proved on the agreement to sell Ex.PW-1/A. The plaintiff being Pradhan and an influential person had obtained the signatures of defendant No.1 on allurement of getting loan and subsidy sanctioned in his favour. There is also no evidence to show that the plaintiff was willing to perform his part of contract. The evidence regarding presence of plaintiff before the Sub-Registrar, Kullu is false and created one which reveals that it is plaintiff who acted with malice to grab the land of defendant No.1, who admittedly is an illiterate person. The factum of passing of consideration is also not proved. The evidence suggesting that defendant No.2 had no knowledge or notice of the execution of agreement to sell is erroneously ignored. Also that since as per the evidence available on record, the plaintiff and defendant No.2 were inimical to each other, therefore, the findings that defendant No.2 had knowledge of the execution of agreement to sell are perverse. No evidence rather is stated to be produced by the plaintiff to show that defendant No.2 was made aware of the existence of the agreement to sell Ex.PW-1/A before the execution of the sale deed. On the other hand, the certificate of registration appended by the Sub Registrar on the sale deed has the presumptive value under Section 60 of the Registration Act and as the plaintiff has failed to rebut such presumption of truth, no decree for specific performance of the contract could have been passed. The findings that the sale consideration passed by defendant No.2 to defendant No.1 is below the sale consideration agreed in the agreement to sell and as such the sale deed is forged and fictitious are illegal, erroneous and perverse. The sale deed was registered by Sub-Registrar, Kullu taking into consideration all relevant facts including the market value of the land. The lower appellate Court has not only ignored the basic provisions of Transfer of Property Act and Registration Act, but also made out a new case in favour of the plaintiff. The sale deed Ex.D-X has therefore been discarded on hypothetical grounds. The lower appellate Court has not only ignored the basic provisions of Transfer of Property Act and Registration Act, but also made out a new case in favour of the plaintiff. The sale deed Ex.D-X has therefore been discarded on hypothetical grounds. It has thus been claimed that the present being a case of misreading of the evidence available on record and mis-appreciation of the correct position of law, the impugned judgment and decree being perverse is not legally sustainable. 9. THE appeal has been admitted on the following substantial questions of law (1, 4 and 5):- 1. Whether both the courts below have returned illegal, erroneous and perverse findings by holding the sale Dee Exhibit DX to be fictitious and not bonafide transaction, are not such findings contrary to the provisions of Section 60 of the Registration Act? 2. Whether the findings of both the courts below are erroneous and perverse in holding the Defendant No.2/Appellant not to be bonafide purchaser by imputing the constructive knowledge to the Defendant No.2/Appellant on account of the Plaintiff being the cousin of the Defendant No.2.? 3. When the Defendant No.1 disputed the very factum of execution of the agreement and passing of sale consideration, have not both the courts below acted beyond their jurisdiction in granting the discretionary relief of specific performance of agreement, without there being any proper and cogent evidence to prove the agreement of passing of sale consideration? 10. THE present is a case of concurrent findings recorded by both courts below on appreciation of the evidence available on record. It is well settled at this stage that in a case of concurrent findings, normally the High Court in the exercise of jurisdiction vested in it under Section 100 of the Code of Civil Procedure, should not interfere with such findings unless and until satisfied that the evidence has not been appreciated in its right perspective and rather misconstrued and misread and the findings so recorded are not legally and factually sustainable nor supported by the evidence on record and as such perverse. The vendor who is defendant No.1 is not before this Court as this appeal has been preferred by defendant No.2, allegedly a bonafide purchaser of the suit land having no notice or knowledge of the agreement to sell Ex.PW-1/A. 11. The vendor who is defendant No.1 is not before this Court as this appeal has been preferred by defendant No.2, allegedly a bonafide purchaser of the suit land having no notice or knowledge of the agreement to sell Ex.PW-1/A. 11. THE first substantial question of law referred to hereinabove and for that matter second substantial question of law also pertains to the controversy so as to defendant No.2 though is a bonafide purchaser of suit land vide sale deed Ex.D-X a genuine and valid document, however, erroneously disbelieved by both courts below. 12. TRUE it is that sale deed Ex.D-X is a registered document, the circumstances under which the same came to be executed and registered before the Sub-Registrar, remained unexplained because neither the scribe nor any witness thereto is examined. There cannot again be any dispute so as to presumption of truth is attached to a document of this nature, however, such presumption is always rebuttable. In the case in hand, enmity between the plaintiff and defendant No.2 is established on record. The enmity no doubt is an double edged weapon and could have been used by either of them against each other. In the given facts and circumstances when the agreement to sell Ex.PW-1/A is duly proved from the own testimony of the plaintiff and also that of its scribe Bhuvneshwar Dutt, PW-1 and marginal witness PW-3, Prem Chand, the possibility of use of this weapon by defendant No.2 against the plaintiff to frustrate the transaction of the suit land between the plaintiff and defendant No.1 for some extraneous consideration/motive, cannot be ruled out. Since the plaintiff and defendant No.2 are cousins in relation, the said defendant can reasonably be believed to have the knowledge of the existence of agreement to sell the suit land Ex.PW-1/A in favour of the plaintiff. The vendor, defendant No.1 had the due notice of the agreement in question as he was duly served with a legal notice Ex.PW-2/B to which the said defendant even had submitted reply Ex.D-1 also on 8.7.1993 through Shri Chuneshwar Thakur, Advocate. He must have disclosed the factum of existence of agreement to sell to defendant No.2 as it is not the case of defendant No.1 or defendant No.2 that this fact was never disclosed by the former to the later. He must have disclosed the factum of existence of agreement to sell to defendant No.2 as it is not the case of defendant No.1 or defendant No.2 that this fact was never disclosed by the former to the later. Significantly, the sale deed Ex.D-X is dated 8.4.1993, i.e. well before the issuance of legal notice Ex.PW-2/B, which is dated 25.6.1993. The reply Ex.D-1 thereto filed by defendant No.1 is dated 8.7.1993. Had the sale deed been executed in the manner as claimed by defendant No.2, the defendant No.1 should have disclosed in reply to the legal notice that he had already sold the suit land to defendant No.2 vide sale deed Ex.D-X. However, surprisingly enough, there is no mention to this effect in reply to the legal notice. Therefore, in my considered opinion, the transaction of sale of the suit land vide Ex.D-X is not genuine and seems to be fictitious and in order to remove all doubt, the vendor-defendant No.1 or the vendee-defendant No.2 would have examined the scribe and also the attesting witnesses and Sub-Registrar also to satisfy the Court about its due execution. In the given facts and circumstances and the evidence on record, I am satisfied that the transaction of sale of suit land vide Ex.D-X is not bonafide as the vendor-defendant No.1 and vendee-defendant No.2 had due notice and knowledge of existence of agreement to sell Ex.PW-1/A and irrespective of that they in a clandestine manner executed the sale deed to frustrate the legitimate claim of the plaintiff over the suit land. The courts below have committed no illegality and irregularity while deciding this aspect of controversy against the defendants after appreciating the evidence available on record in its right perspective. I, thus, find no force in the substantial questions of law No.1 and 2 hereinabove. As regards the substantial question of law at Sr. The courts below have committed no illegality and irregularity while deciding this aspect of controversy against the defendants after appreciating the evidence available on record in its right perspective. I, thus, find no force in the substantial questions of law No.1 and 2 hereinabove. As regards the substantial question of law at Sr. No.3, supra, again no case in support thereof is found to be made out for the reason that the evidence as has come on record by way of testimony of scribe, PW-1 Shri Bhuvneshwar Dutt and marginal witness PW-3, Shri Prem Chand, and also from that of plaintiff himself, the agreement to sell Ex.PW-1/A was not only reduced into writing in the presence of defendant No.1, but also read over and explained to him and it is after admitting the contents thereof to be true and correct, he had put his signatures thereon. The plea of fraud and misrepresentation of facts set up by defendant No.1 seems to be not plausible and rather germane of the mind of the said defendant and also defendant No.2 raised with malafide intention to frustrate the legitimate claim of plaintiff over the suit land. In view of cogent and reliable evidence on record suggesting that it is defendant No.1 who had signed the agreement to sell Ex.PW-1/A, the trial Court has rightly decreed the suit for the relief of possession of suit land by way of specific performance of the contract. The plea raised by defendant No.1 that his name is Durga and not Durgu and that the agreement to sell Ex.PW-1/A does not bear his signature again seems to be not plausible and rather without any substance. 13. FOR the reasons stated hereinabove, I am of the considered opinion that the present is neither a case of misreading or misconstruing the evidence available on record nor mis-appreciation of the legal provisions, as claimed in the grounds of appeal. The evidence available on record rather supports the view of the matter already taken by both Courts below and the findings recorded by the Courts below on proper appreciation of the evidence available on record call for no interference by this Court in the present appeal. The appeal thus deserves to be dismissed. 14. IN view of the above discussion, this appeal fails and the same is accordingly dismissed, however, without any costs. Any pending application shall also stand disposed of.