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2014 DIGILAW 494 (PNJ)

Jiwan Kumar v. Simar Sain

2014-03-10

PARAMJEET SINGH

body2014
JUDGMENT : Paramjeet Singh, J. 1. This judgment shall dispose of both the above mentioned regular second appeals which arise from a suit for possession by specific performance or in alternative for recovery filed by respondent-plaintiff. Both the above mentioned second appeals are directed against the judgment and decree dated 16.04.2007 passed by learned Civil Judge (Jr. Divn.), Nawanshahr whereby relief of specific performance sought by respondent-plaintiff has been declined, however, alternative relief for recovery of Rs. 1,48,000/- along with interest has been granted, and against the judgment and decree dated 20.04.2009 passed by learned Additional District Judge, Nawanshahr whereby appeal preferred by respondent-plaintiff claiming relief of specific performance has been allowed and appeal preferred by appellant-defendant has been dismissed. 2. For convenience sake, reference to parties is being made as per their status in the suit. 3. The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced; However, brief facts are to the effect that the defendant is owner of the suit land measuring 18 M 3 sarsai as 1/6th share out of 5 K 10 M and he entered into agreement to sell on 24.03.2003 for sale of the said land to the plaintiff for the consideration of Rs. 1,74,167/-. The defendant had received Rs. 74,000/- as earnest money and date for execution of sale deed was fixed as 22.09.2003. It was further pleaded that physical possession of the land was delivered to the plaintiff. The defendant had failed to execute the sale deed. The plaintiff through his attorney remained present in the office of Sub Registrar on 22.09.2003 to perform his part of the contract, but the defendant did not turn up. The plaintiff was and has always been ready and willing to perform his part of the agreement, but the defendant has failed to do so. Hence, suit was filed. 4. Upon notice, the defendant resisted the suit and filed written statement taking various preliminary objections. On merits, it was pleaded that the defendant never executed any agreement to sell in favour of the plaintiff. In fact, the defendant had taken a loan of Rs. 55,000/- from the plaintiff, who had obtained his signatures on some blank papers. It was also pleaded that the plaintiff had forged and fabricated the documents. On merits, it was pleaded that the defendant never executed any agreement to sell in favour of the plaintiff. In fact, the defendant had taken a loan of Rs. 55,000/- from the plaintiff, who had obtained his signatures on some blank papers. It was also pleaded that the plaintiff had forged and fabricated the documents. It was further pleaded that at the time of execution of agreement to sell, the suit land was valued about Rs. 25,000/- per marla and it is highly improbable that the defendant would sell the suit land at a meager amount of Rs. 9500/- per marla. 5. Replication was filed denying the averments made in written statement. On the basis of pleadings of parties, the Court of first instance framed following issues: "1. Whether the plaintiff is entitled for specific performance of the agreement dated 24.03.2003 as alleged? OPP 2. Whether the plaintiff was/is always ready and willing to perform his part of the contract? OPP 3. Whether the plaintiff is entitled for recovery of Rs. 1,48,000/- in the alternative as alleged? OPP 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the site plan is incorrect? OPD 6. Whether the suit is not instituted through lawful attorney? OPD 7. Whether alleged agreement is forged and fabricated? OPD 8. Relief." 6. After appreciating the evidence led by parties, the Court of first instance dismissed the suit qua specific performance, however, decreed the suit qua alternative relief of recovery. Feeling aggrieved, the plaintiff and defendant preferred separate appeals. The appeal preferred by the plaintiff has been allowed and the appeal preferred by the defendant has been dismissed by the lower Appellate Court. Hence, this regular second appeal. 7. I have heard learned counsel for the parties and perused the record. 8. Learned counsel for the appellant has referred to following substantial questions of law suggested in the grounds of appeal for consideration by this Court: "(i) Whether the alleged agreement to sell and receipt Exs.P-1 and P-2 are fabricated and manipulated documents prepared on blank papers signed by defendant-appellant kept as surety against the loan amount of Rs. 55,000/- taken by defendant-appellant from plaintiff- respondent? 55,000/- taken by defendant-appellant from plaintiff- respondent? (ii) Whether the alleged agreement to sell though prepared by deed writer but not entered in his register proves that it is an anti-dated agreement prepared subsequently on blank papers with the connivance of deed writer and other PWs but the same could not be registered by the deed writer in his register being an anti-dated agreement? (iii) Whether the averment of plaintiff that the possession was handed over to him but as per Exs.P-6 and P-7, the possession of the land in question was not even with the defendant on the date of alleged execution of agreement substantiates the fact that the alleged agreement and receipt are fabricated and manipulated documents? (iv) Whether the suit filed by the plaintiff-respondent seeking decree of possession by specific performance on one hand and at the same time by stating that the possession was handed over to him is self-contradictory and the same disentitles the plaintiff-respondent for the relief sought for? (v) Whether the learned courts below have not appreciated the evidence in proper perspective and have failed to decide the legal issues properly? (vi) Whether great manifest injustice has been caused to the defendant-appellant?" 9. Learned counsel for the appellant has contended that it was a loan transaction and alleged agreement to sell is a forged and fabricated document. Both the courts below have misread the evidence and findings of both the courts below are perverse and erroneous. 10. Per contra, learned counsel for the respondent has vehemently opposed the contentions of learned counsel for the appellant and supported the judgment and decree of the lower Appellate Court. 11. I have considered the rival contentions of learned counsel for the parties. 12. There is a concurrent finding with regard to execution of agreement (Ex.P-1) and receipt (Ex.P-2). The defendant has also admitted his signatures over these documents, but pleaded that his signatures were obtained by the plaintiff on blank papers. However, the defendant did not lead any evidence to prove his version. The lower Appellate Court has rightly held that specific khasra number of the agricultural land has been mentioned in the agreement to sell and it has also been mentioned that the defendant is selling his share in the property. However, the defendant did not lead any evidence to prove his version. The lower Appellate Court has rightly held that specific khasra number of the agricultural land has been mentioned in the agreement to sell and it has also been mentioned that the defendant is selling his share in the property. It is settled principle of law that once the execution of agreement is proved, relief of specific performance must follow except where relief of specific performance is not capable of being granted. Vide affidavit (Ex. P-4) dated 22.09.2003, the plaintiff has proved his readiness and willing to perform his part of the agreement. The lower Appellate Court has rightly held that the plaintiff could not have been non-suited on the ground that actually possession was not delivered but it was mentioned in the agreement. It has been rightly recorded that the agreement is not vitiated on this ground alone, once the due execution of the agreement and receipt is proved by the plaintiff. 13. The lower Appellate Court has rightly held that the plaintiff has duly proved the site plan (Ex.P-5) and as per the agreement, the defendant had sold his 1/6th share in the property bearing khasra No. 430 and as per the documents proved on record, the land is joint amongst the co-owners. It is also well settled that a co-owner can alienate his share in the joint land and can even give possession of the same which is, however, subject to partition amongst the co-owners. Learned counsel for the appellant could not show that the said findings are perverse or illegal or based on misreading, non-reading or mis- appreciation of the material evidence on record. Consequently, said findings of fact do not warrant interference in regular second appeal. No question of law, much-less substantial question of law, as alleged, arises for adjudication in this second appeal. No other point has been urged. Dismissed.