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2014 DIGILAW 9 (PNJ)

Isham Singh v. Tek Singh

2014-01-08

JASWANT SINGH

body2014
JUDGMENT Mr. Jaswant Singh, J.:- Defendant nos.1, 2 & Lrs of defendantno.3 are in second appeal against the judgment and decree dated 21.08.2009 passed by the learned Additional District Ambala, whereby the appeal preferred by the plaintiff/respondent no.1 against the judgment and decree dated 11.04.2008 passed by the learned Additional Civil Judge (Sr. Divn.), Ambala has been allowed and consequently, respondent no.1 Tek Chand’s suit for specific performance has been decreed in toto. 2. In brief, facts of the case are that respondent no.1/plaintiff filed a suit for specific performance of an agreement to sell dated 9.6.2000. It was alleged that appellants/defendant nos.1 to 3 had received a sum of Rs.2,20,500/- as earnest money and the last date for execution of the sale deed was fixed as 10.10.2000. The possession of the suit land already stood delivered to the plaintiff at the time of agreement to sell. It was further alleged that additional sum of Rs.1,50,000/- was received by the appellant on 10.10.2000 and the time to execute the sale deed was extended to 15.11.2000. Again on 27.12.2000 appellants received additional amount of Rs.1,25,000/- out of which Rs.1,20,000/- was deposited with respondent no.5-Bank(to whom property was mortgaged by the appellants) and the last date for execution of the sale deed was again extended upto 31.03.2001. Despite the said extension, sale deed was not executed by the appellants and therefore, the present suit. 3. Upon notice, defendant nos.1 & 4 to 6 were proceeded against ex-parte and the suit was resisted by only defendant nos.2 & 3. In their joint written statement, execution of the agreement was admitted. However, it was stated that as per the agreement to sell, the land owned and possessed by respondent nos.2 to 4 was also allegedly agreed to be sold. It was denied that defendant no.1 agreed to sell the land sustained and owned by defendant nos.2 to 4. It was also alleged that there was no payment of money and extension of date as alleged by plaintiff/respondent no.1 and the documents if any are forged documents. 4. Replication was filed wherein the entire contents of the plaint were reiterated and those of the written statement were denied. 5. From the pleadings of the parties issues were framed. It was also alleged that there was no payment of money and extension of date as alleged by plaintiff/respondent no.1 and the documents if any are forged documents. 4. Replication was filed wherein the entire contents of the plaint were reiterated and those of the written statement were denied. 5. From the pleadings of the parties issues were framed. Both sides lead their evidence in support of their respective claims and after appreciating their evidence, learned trial Court partly allowed the suit whereas the learned lower Appellate Court decreed the suit filed by the plaintiff in toto. Hence the present second appeal. 6. I have heard learned Counsel for the parties and have gone through the case file carefully with their able assistance. 7. Learned Counsel for the appellants has argued that the learned lower appellate Court has committed grave illegality by decreeing the suit of the plaintiff/respondent no.1 in toto because it is proved from the evidence led by the appellants on record that the dates on which alleged cash payments were made were ever extended and the money was paid to the appellants. It has further been argued that the learned lower Appellate Court, without reversing the findings of the learned trial Court who held receipts Ex.P-2 and Ex.P-5 to have not been proved on record, has reversed the findings of the learned trial Court, therefore, it was argued that the findings of learned lower Appellate Court are perverse and are liable to be set aside. 8. On the other hand, learned Counsel for the respondent no.1 has argued that the learned lower Appellate Court has rightly appreciated the entire evidence on record and has come to a right conclusion that the agreement to sell was indeed executed and payments were made through receipts Ex.P-2 and Ex.P-5 and thus, no interference is warranted in the findings returned by the learned lower Appellate Court. 9. After hearing learned Counsel for the parties and having gone through the case file carefully with their able assistance, this Court is of the considered view that the present second appeal is devoid of any merit and the same deserves to be dismissed. 10. In the present case, execution of the agreement to sell is not disputed amongst the parties. After hearing learned Counsel for the parties and having gone through the case file carefully with their able assistance, this Court is of the considered view that the present second appeal is devoid of any merit and the same deserves to be dismissed. 10. In the present case, execution of the agreement to sell is not disputed amongst the parties. Learned Counsel for the appellants has disputed the execution of the receipts Ex.P-2 and Ex.P-5 and has stated that there was no consensus amongst the parties for extension of time and payment of any money. Thus the readiness and willingness on the part of the respondent no.1 plaintiff has been disputed by the counsel for the appellants. However, this Court has itself perused the receipts as well as agreement to sell, which forms part of the trial Court record and finds that there is no alleged fraud conducted by the plaintiff’/respondent no.1 in procuring the signatures of the appellant. Perusal of the receipts shows that part of the signatures of the appellants have been executed on a revenue stamp and other half on the paper and the manner in which the signatures as well as the documents has been typed seems to be in routine course of business. Furthermore, it is apparent from the record that respondent no.1 plaintiff had moved applications to mark his presence before the Sub Registrar and also got attested affidavits of the said dates i.e. 15.11.2000. Furthermore, the dispute regarding the payments allegedly made on 10.10.2000 and 27.12.2000 have also discussed in detail by learned lower Appellate Court by referring to the testimony of the Parmal Singh, DW-4 who is defendant no.2/appellant no.2 before this Court. As per the said affidavit tendered in examination in chief, there is no denial of the receipts of these payments. Thus, in view of the overwhelming evidence, whereby the appellants have failed to establish their case, this Court has no hesitation in holding that the impugned agreement to sell as well as receipts Ex.P-2 & Ex.P-5 were indeed executed and the learned lower Appellate Court had rightly discussed the veracity of these documents in its judgment while coming to a conclusion that the plaintiff/respondent no.1 is entitled for grant of specific performance of agreement to sell. 11. 11. In view of the above, finding no question of law, much less substantial question of law arising for determination in the present second appeal, the same is hereby dismissed.