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2014 DIGILAW 70 (PNJ)

Jagir Singh v. Gumrail Singh

2014-01-10

RAKESH KUMAR GARG

body2014
Rakesh Kumar Garg, J. CM No. 4720-C of 2013 1. CM is allowed subject to all just exceptions. CM No. 4721-C of 2013 CM is allowed subject to all just exceptions. Delay, if any, in making up the deficiency in court fee is condoned. RSA No. 1772 of 2013 (O&M) 2. This is defendant's second appeal challenging the judgment and decree of the Lower Appellate Court dated 1.12.2012 whereby judgment and decree of the trial Court dated 21.10.2009 decreeing the suit of the plaintiff-respondent for possession by way of specific performance of the agreement to sell in question, has been upheld. 3. As per the averments made in the suit, the appellant being owner of the land measuring 7 kanals 8 marlas executed an agreement to sell dated 9.12.2005 to sell his land @ Rs. 4,25,000/- per acre and accepted earnest money of Rs. 3,00,000/- in the presence of the witnesses and further agreed to execute the sale deed in respect of the land in question on or before 5.1.2006 on payment of balance sale consideration. According to the plaintiff-respondent, he was ready and willing to perform his part of the contract. He approached the appellant on 6.1.2006 to execute the sale deed after accepting the balance sale consideration by appearing before the Sub-Registrar, Tarsikka, 5.1.2006 being the holiday but the appellant failed to turn up to perform his part of the contract. Consequently, the plaintiff-respondent got his presence marked before the Joint Sub-Registrar. Thereafter also, the plaintiff-respondent approached the appellant many times with request to execute the sale deed in performance of the agreement dated 9.12.2005 but he refused to do so and threatened to transfer the suit property in favour of third person. Hence, necessity arose to file the instant suit. 4. The appellant contested the suit by filing written statement and raising various preliminary objections. On merits, it was stated that the agreement in question was a result of impersonation and the plaintiff-respondent has used the forged and fabricated documents to grab his land. Since no agreement was executed by him, question of plaintiff making any request to him to execute the sale deed does not arise at all. A further defence was taken that the appellant had mortgaged the land measuring 7 kanals 8 marlas to Kulwant Singh son of Shiv Singh. Since no agreement was executed by him, question of plaintiff making any request to him to execute the sale deed does not arise at all. A further defence was taken that the appellant had mortgaged the land measuring 7 kanals 8 marlas to Kulwant Singh son of Shiv Singh. Receipt of earnest money was also denied and prayer for dismissal of the suit was made. 5. From the pleadings of the parties, the following issues were framed: (i) Whether the plaintiff is entitled to possession as prayed for? OPP (ii) Whether the defendant executed an agreement to sell dated 9.12.2005 in favour of the plaintiff regarding land measuring 7k-8m as detailed in the head note of plaint? OPP (iii) Whether the plaintiff was ready and willing and is still ready and willing to perform his part of contract? OPP (iv) Whether the plaintiff is entitled to injunction as prayed for? OPP (v) Whether the plaintiff is entitled to recovery of amount of Rs. 3 lacs along with interest in alternative? OPP (vi) Whether the suit is not maintainable? OPD (vii) Whether the plaintiff has no locus standi to file the present suit? OPD (viii) Whether the suit is bad for misjoinder and non joinder of necessary parties? OPD (ix) Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD (x) Relief. 6. After appreciating the pleadings as well as the evidence adduced by the parties to the suit, the trial Court decreed the suit observing as under: To prove this fact that the defendant has executed an agreement to sell in his favour on 9.12.2005 qua the land measuring 7K-8M bearing Khasra No. 22//19. The plaintiff has examined PW1 Resham Singh, Deed Writer, who is the scribe of agreement Ex. P1 and he has specifically stated that he has scribed the agreement to sell Ex. P1 at the instance of the defendant on 9.12.2005 qua the land measuring 7K-8M at the rate Rs. 4,25,000/- per acre and at the time of execution of the agreement to sell, the defendant has received an amount of Rs. Three lacs as an earnest money and the remaining amount was agreed to be paid at the time of execution of the sale deed which is to executed on 5.1.2006. After scribing Ex. 4,25,000/- per acre and at the time of execution of the agreement to sell, the defendant has received an amount of Rs. Three lacs as an earnest money and the remaining amount was agreed to be paid at the time of execution of the sale deed which is to executed on 5.1.2006. After scribing Ex. P-1, he read over the contents of the same to the both the parties to the suit in presence of the witnesses, who after admitting the same as correct put their respective signatures/thumb impressions in presence of each other. He also made the entry of this agreement to sell in his register at sr. No. 861 and all the persons have also put their respective signatures thumb impressions in his register PW2 Harjinder Singh son of Karnail Singh and PW3 Santokh Singh, who are the attesting witnesses of the agreement to sell Ex. P1 have corroborated the version of scribe PW1 Resham Singh regarding the-execution of the agreement to sell. PW4 plaintiff himself stepped into the "witness box and he also supported the versions of PW1 to PW3 on the same lines qua the execution of the agreement to sell Ex. P1. He further stated that the stipulated period was fixed for execution of the agreement to sell 5.1.2006 but due to Gazetted holiday he reached at the office of Joint Sub-Registrar Tarsikka along with the balance amount and other charges on 6.1.2006, but the defendant Jagir Singh did not turn up to execute the sale deed in his favour as per the agreement to sell Ex. P1 and he got his presence marked by way of affidavit attested by Joint Sub-Registrar; Tarsikka vide an affidavit Ex. P2. On the other hand, the claim of the defendant is that the alleged agreement to sell Ex. P1 is a forged and fabricated document, which has not been executed by him in favour of the plaintiff and he has not received single penny as an earnest money from the plaintiff. The agreement to sell Ex. P1 got prepared by the plaintiff with the connivance of the witness. He also examined in support of his version DW2 Jagir Singh son of Tarlok Singh, who is also one of the marginal witness of Ex. P1 and the stand of the DW2 is that the plaintiff has got his signatures on Ex. P1 by deceiving him and the agreement Ex. He also examined in support of his version DW2 Jagir Singh son of Tarlok Singh, who is also one of the marginal witness of Ex. P1 and the stand of the DW2 is that the plaintiff has got his signatures on Ex. P1 by deceiving him and the agreement Ex. P-1 was wrongly prepared in the name of Jagir Singh defendant when no alleged agreement to sell Ex. P1 was scribed in his presence. But DW1 Jagir Singh in his cross examination has admitted qua his ownership over the suit land and stated that he used to sign in English and if there is requirement he used to put his thumb impression also when the agreement to sell Ex. P1 was shown to DW1 Jagir Singh defendant he denied his signature and thumb impression on it but he identified his signatures on the written statement filed by him and he specifically denied his thumb impression on Ex. P1 and he also ready to give his thumb impression in the court he further admitted that the present suit is pending for the last two years back but he did not file any complaint to any authority regarding the alleged agreement against the plaintiff or any attesting witness he did not get compare his thumb impression from any expert he further admitted that the total area of the land is 105k 5m he is not in possession of Khasra No. 12//19 measuring 7k 8m which is mortgage with Kulwant Singh son of Shiv Singh. The land is still under mortgage. Similarly DW2 Jagir Singh stated in his cross examination he know both the parties to the suit. The agreement to sell Ex. P1 bears his signatures. He also knew Jagir Singh Vendor; Gurmail Singh purchaser, Santokh Singh son of Inder Singh, Mohinder Singh Numberdar. He also admitted that Resham Singh Deed Writer scribe the sale deed Ex. P1. He also admitted the ownership of the defendant Jagir Singh of the suit land. He also specifically identified his signatures in the register of deed writer he remained sarpanch of village Dashmesh Nagar he also specifically stated in his cross examination that he used to sign the document after going through the same and further stated that the signed Ex. He also admitted the ownership of the defendant Jagir Singh of the suit land. He also specifically identified his signatures in the register of deed writer he remained sarpanch of village Dashmesh Nagar he also specifically stated in his cross examination that he used to sign the document after going through the same and further stated that the signed Ex. P1 after reading its contents meaning thereby DW-2 Jagir Singh son of Tarlok Singh while Sarpanch of village Dashmesh Nagar has specifically admitted that he signed on Ex. P1 after gone through its contents in this way he corroborated the versions of PW1 to Ex. PW-4 qua the execution of the agreement to sell Ex. P1 moreover nothing has been brought on record by the defendant Jagir Singh that the alleged agreement to sell Ex. P1 is a forged and fabricated document even he has not got compared his thumb impression signature with the alleged agreement to sell Ex. P1 is a forged and fabricated document. Even he has not got compared his thumb impression signatures with the alleged thumb impressions and signatures appearing on Ex. P1 in this way the plaintiff succeeds to prove record qua the executio of the agreement to sell Ex. P1 by defendant in his favour on 9.12.2005 qua the land measuring 7k 8m bearing Khasra No. 12//19. Moreover, the plaintiff has also proved on record his willingness and readiness by proving on record his affidavit Ex. P2. 7. The Lower Appellate Court upheld the aforesaid judgment and decree of the trial Court observing as under: 9. The contention of the learned counsel for the appellant that the agreement to sell in question Ex. Moreover, the plaintiff has also proved on record his willingness and readiness by proving on record his affidavit Ex. P2. 7. The Lower Appellate Court upheld the aforesaid judgment and decree of the trial Court observing as under: 9. The contention of the learned counsel for the appellant that the agreement to sell in question Ex. P1 is a forged and fabricated document by way of impersonation is apparently not tenable for four four reasons: (1) that the agreement to sell in question is scribed on a stamp paper purchased in the name of Jagir Singh, defendant himself, who has not preferred to summon the record of the stamp vendor to rebut the case of the plaintiff that he has not purchased the stamp paper to execute the agreement to sell in question: (2) that the agreement to sell in question is scribed by a registered deed writer, who has duly entered the same in his register and despite his (PW1 Resham Singh) thorough cross-examination, no dent could be created in his statement: (3) that the agreement to sell in question is attested by four witnesses, with whom no enmity whatsoever has been alleged or proved by the defendant, out of which two attesting witnesses namely PW2 Harjinder Singh and PW3 Santokh Singh have deposed in the Court and have been extensively cross-examined by the learned counsel for the defendant and no dent could be created in their statements: and (4) that the agreement to sell in question is bearing thumb impression of Jagir Singh defendant, now appellant, which he has not got compared from any Finger Print Expert with his standard thumb impressions, which would have been clinching piece of evidence in his favour. 10. Moreover, it is not case of the defendant and his thumb impression was obtained on blank papers by the plaintiff in connivance with scribe and attesting witnesses, rather the defendant has put forth a case of forgery with impersonation, which he has failed to prove by leading any cogent evidence. It was damn easy for the defendant to rebut the case of the plaintiff by examining Finger Print Expert by proving the fact that agreement to sell Ex. P1 is not bearing his (appellant) thumb impression. So in view of the matter, findings of the learned Lower Court that the defendant executed agreement to sell in question Ex. It was damn easy for the defendant to rebut the case of the plaintiff by examining Finger Print Expert by proving the fact that agreement to sell Ex. P1 is not bearing his (appellant) thumb impression. So in view of the matter, findings of the learned Lower Court that the defendant executed agreement to sell in question Ex. P1 in favour of the plaintiff qua the suit property after accepting earnest money of Rs. 3,00,000/- are based upon correct appreciation of the evidence on the record. 11. So far as question of ready and willingness on the part of the plaintiff is concerned, it is settled principle of law that when the defendant has categorically denied that the agreement to sell in question is forged and fabricated document, he has no locus standi to challenge the ready and willingness on the part of the plaintiff. Even otherwise, the plaintiff has duly proved his ready and willingness by appearing before the Sub-Registrar on 6.1.2006 as 5.1.2006 was holiday and he has got his affidavit attested, which is proved on the file as Ex. P2. So, the findings of the learned Lower Court on the question of ready and willingness are also correct and based upon proper appreciation of the evidence. 12. Likewise, when it is proved that the defendant has entered into agreement to sell in question in favour of the plaintiff qua the suit property and has failed to perform his part of the contract, the property in question was required to be preserved by passing an injunction order against the defendant restraining him from alienating the suit property in favour of any third person except the plaintiff. 13. When the plaintiff has successfully proved his case qua the agreement to sell in question Ex. P1 executed by the defendant in his favour, he has got the cause of action and locus standi to file the present suit. When the defendant has failed to perform his part of the contract, the suit in the present form is also maintainable. 14. The learned counsel for the appellant contended that since the land in question is under mortgage, the mortgagee has not been impleaded as necessary party in this case and as such, suit is liable to be dismissed on this score also. 14. The learned counsel for the appellant contended that since the land in question is under mortgage, the mortgagee has not been impleaded as necessary party in this case and as such, suit is liable to be dismissed on this score also. Undisputedly, the land in question is under mortgage with Kulwant Singh and Inderjit Singh sons of Shiv Singh and this fact has also been recorded in the agreement to sell in question Ex. P1, but they are not the necessary parties in this case, because when the plaintiff has agreed to purchase the land having first lien of the mortgagee over the same, he will be entitled for specific performance of the land in question subject to mortgagee right of Kulwant Singh and Inderjit Singh sons of Shiv Singh. No doubt, the defendant has agreed to get the land redeemed prior to the execution of the sale deed in favour of the plaintiff, but in the given circumstances, now the plaintiff is at liberty to get the sale deed executed in his favour by himself making payment of the mortgage amount to the mortgagee. So, this contention of the learned counsel for the appellant is also not tenable. 15. When it is successfully proved by the plaintiff that he is entitled for specific performance of the agreement to sell in question, the issue as to the recovery of amount of Rs. 3,00,000/-alongwith interest in the alternative has since become redundant. 8. Still not satisfied, the defendant has filed the instant appeal challenging the judgments and decrees of the courts below submitting that the following substantial questions of law arise in this appeal: (i) Whether the mortgagee was a necessary party in present case if not made its effect? (ii) Whether the agreement is a result of fraud due to the sick mental condition of the appellant? (iii) If that there was any necessity to execute the agreement? 9. In support of his case, learned counsel for the appellant has vehemently argued that the alleged agreement was never executed by the appellant at any time and the same is a false document prepared by the plaintiff-respondent to take undue advantage. Moreover, there was no necessity for the appellant to sell the property in question. Not only this, the appellant is more than 65 years of age and is mentally sick. Moreover, there was no necessity for the appellant to sell the property in question. Not only this, the appellant is more than 65 years of age and is mentally sick. He is already under treatment of psychiatrist and is taking medicine and in this way, due to the mental condition of the appellant, the respondent has obtained the signatures of the appellant on the alleged agreement which is illegal. It is the further case of the appellant that the land in under mortgage, however, the mortgagee has not been made a party and therefore, the suit is bad for non-joinder of necessary parties. Moreover, the plaintiff-respondent has sought alternative relief of refund of earnest money and therefore, there was no necessity to decree the suit for specific performance of the agreement in question. Thus, substantial questions of law, as framed in the grounds of appeal, arise in this appeal and prayed that the judgments and decrees in question be set aside and suit of the plaintiff-respondent be dismissed. 10. I have heard learned counsel for the appellant and perused the impugned judgments and decrees of the courts below. 11. The argument raised before this court are wholly untenable. In the pleadings, the appellant had put forth the case of forgery with impersonation which he has failed to prove by leading any cogent evidence, whereas the plaintiff-respondent has duly proved the execution of the agreement in question from the testimony of the witnesses to the said agreement. The plea as taken up by the appellant before this Court has neither been pleaded before the Courts below nor any evidence has been brought on record. Moreover, before this Court, the appellant has altogether taken up a new ground for which foundation has been laid in the pleadings as well as the evidence. In view thereof, such a plea as raised before this Court cannot be sustained. 12. The mortgagee of the land in question is not a necessary party in the instant case because when the plaintiff-respondent has agreed to purchase the land having first lien of the mortgagee over the same, he will be entitled for specific performance of the land in question subject to rights of the mortgagee as has been observed by the First Appellate Court. Though the appellant has raised an argument that the suit could have been decreed in favour of the plaintiff-respondent for refund of the earnest money as alternative prayer, yet learned counsel for the appellant is at a loss to argue as to how the prayer granted for specific performance of the agreement in question is bad in law. 13. In view thereof, this Court finds no merit in the arguments as raised. 14. Thus, no substantial question of law, as raised, arises in this appeal for consideration. Dismissed.