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2016 DIGILAW 3272 (PNJ)

Santokh Singh v. Ajit Singh

2016-11-22

DARSHAN SINGH

body2016
JUDGMENT : Darshan Singh, J. CM No. 15278-C of 2016 This application has been filed under Section 5 of the Limitation Act for condonation of delay of 203 days in filing the present appeal. Heard. In view of the reasons mentioned in the application, the application stands allowed and the delay of 203 days in filing the present appeal is hereby condoned. R.S.A. No. 5822 of 2016(O&M) The present appeal has been preferred against the judgment and decree dated 19.01.2016 passed by the learned Additional District Judge, Amritsar, whereby the appeal filed by defendant-respondent has been partly allowed to the extent that the suit filed by the plaintiff for specific performance of agreement to sell dated 26.11.2009 and permanent injunction was dismissed. However, the plaintiff was granted the alternative relief of recovery of Rs. 2.5 lacs along with costs and interest at the rate of 12% per annum on the principal amount of Rs. 2.5 lacs till realization. 2. Appellant-plaintiff-Santokh Singh filed the suit for specific performance of the agreement to sell dated 26.11.2009 executed in his favour by respondent-defendant-Ajit Singh for the sale of his land measuring 3 kanals situated in the revenue estate of village Cheema Bath, Tehsil Baba Bakala, District Amritsar for a sum of Rs. 4,12,500/-. The sale deed was agreed to be executed and registered on 25.11.2010. Defendant-respondent received a sum of Rs. 2.5 lacs as earnest money. But, he failed to perform his part of contract. Though, the plaintiff-appellant was ready and willing to perform his part of contract. Hence the suit. 3. Defendant-respondent contested the suit on the grounds inter alia that he has not executed any agreement to sell in favour of the defendant nor he received the earnest money, in-fact he and the plaintiff are the real brothers. He was in need of money for domestic use and he got a sum of Rs. One lac from the plaintiff as a loan. At that time, his thumb impressions were obtained by the plaintiff on 2-3 blank papers and in one register with the assurance that those will be obtained as security and will be returned to the defendant when he will repay the amount of Rs. One lac. He put his thumb impression on the blank stamp papers in good faith. But, the said stamp papers have been misused by the plaintiff to prepare the forged agreement to sell. One lac. He put his thumb impression on the blank stamp papers in good faith. But, the said stamp papers have been misused by the plaintiff to prepare the forged agreement to sell. With these pleas, he pleaded for dismissal of the suit. 4. From the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether agreement to sell dated 26.11.2009 was entered into in between the plaintiff and defendant as alleged? OPP 2. Whether plaintiff remained ready and willing to perform his part of the agreement to sell, as alleged? OPP 3. Whether plaintiff is entitled to the relief of specific performance as prayed for? OPP 4. Whether plaintiff is entitled to the alternative relief of recovery as prayed for? OPP 5. Whether plaintiff is entitled to the relief of permanent injunction as prayed for? OPP 6. Whether suit is maintainable in the present form? OPD 7. If plaintiff succeeds in proving the formal execution of the said agreement to sell, whether the same is result of fraud, as alleged? OPD 8. Whether the plaintiff has concealed the material facts from the Court? OPD 9. Whether suit is bad for mis-joinder and non-joinder of necessary parties? OPD 10. Relief. 5. On appreciation of the evidence and the contentions raised by learned counsel for the parties, the learned trial Court decreed the suit filed by the plaintiff for specific performance of the agreement to sell dated 26.11.2009 vide judgment and decree dated 28.01.2015. 6. Aggrieved with the aforesaid judgment and decree, the defendant-respondent preferred the appeal. The same has been partly allowed by the learned Additional District Judge, Amritsar vide impugned judgment and decree dated 19.01.2016 and the plaintiff-appellant was granted the alternative relief of the recovery of Rs. 2.5 lacs along with costs and interest and his suit qua specific performance of the agreement to sell dated 26.11.2009 was dismissed. Hence this Regular Second Appeal. 7. I have heard Mr. Naresh Kaushik, Advocate, learned counsel for the appellant and have carefully gone through the paper book. 8. Initiating the arguments, learned counsel for the appellant contended that there is consistent finding of both the Courts that the defendant has executed the agreement to sell dated 26.11.2009 in favour of the plaintiff. He contended that the sum of Rs. 2.5 lacs was advanced by the appellant-plaintiff to the defendant-respondent as earnest money. 8. Initiating the arguments, learned counsel for the appellant contended that there is consistent finding of both the Courts that the defendant has executed the agreement to sell dated 26.11.2009 in favour of the plaintiff. He contended that the sum of Rs. 2.5 lacs was advanced by the appellant-plaintiff to the defendant-respondent as earnest money. He contended that there was no evidence to establish that this amount was advanced as a loan, rather it was the earnest money. He contended that the learned trial Court on appreciation of the entire evidence has decreed the suit for specific performance, but the learned First Appellate court has wrongly set aside the judgment of the learned trial Court. 9. I have duly considered the aforesaid contentions. 10. The only question to be decided in the present appeal is as to whether the amount of Rs. 2.5 lacs advanced by the appellant-plaintiff to the defendant was the earnest money for the purchase of the suit property or on account of the loan. There is no dispute with the proposition of law that the admission is the best evidence. In the instant case, the plaintiff-appellant-Santokh Singh has stepped into the witness box as PW-3 and in the cross-examination, he has categorically stated that he paid Rs. 2.5 lacs as loan to his brother and he has informed the deed writer that it is a loan of Rs. 2.5 lacs, given by him to the defendant. PW-2 Garib Singh, the attesting witness of the agreement has also stated in the cross- examination that defendant took a loan Rs. 2.5 lacs from the plaintiff and the agreement was already scribed before his arrival. Thus, the admission made by plaintiff himself in the cross-examination and PW-2-Garib Singh, the attesting witness of the agreement clearly shows that the appellant-plaintiff has advanced the sum of Rs. 2.5 lacs as a loan and not as the earnest money. 11. Thus, in view of the evidence aforementioned there is no legal infirmity in the conclusion arrived at by the learned First Appellate Court that in-fact the plaintiff has advanced the loan of Rs. 2.5 lacs to the defendant, so he has been rightly declined the decree for specific performance and has been rightly granted the alternative relief of recovery of Rs. 2.5 lacs along with costs and interest. 12. 2.5 lacs to the defendant, so he has been rightly declined the decree for specific performance and has been rightly granted the alternative relief of recovery of Rs. 2.5 lacs along with costs and interest. 12. Consequently, no question of law, much less, the substantial question of law arises in the present appeal. 13. Therefore, the present appeal being devoid of merits, is hereby dismissed with no orders as to costs.