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Himachal Pradesh High Court · body

2018 DIGILAW 2269 (HP)

Meera Dewan v. Neelam Rana

2018-12-19

AJAY MOHAN GOEL

body2018
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellants have challenged judgment and decree passed by the Court of learned Additional District Judge-I, Solan, in Civil Suit No. 10-S/01 of 2017/2007, titled as Mrs. Meera Dewan and another versus Mrs. Neelam Rana, whereby the suit for specific performance of agreement of sale dated 9th May, 2004, as also supplemental agreement dated 1st October, 2004 and for permanent perpetual prohibitory injunction filed by the present appellants against the respondent stood dismissed by the learned Court below. 2. Brief facts necessary for the adjudication of the appeal are as under: The appellants/plaintiffs (hereinafter referred to as 'the plaintiffs’) filed a suit praying for the following reliefs:- “(a) Grant a decree in favour of the Plaintiffs and against the Defendant and call upon her to execute and register a Sale Deed in favour of Plaintiff No. 2, in respect of land and building comprising Khewat No. 50 Min, Khatauni No. 52 Min and Khasra No. 191/188/137/12, measuring One Bigha situate in Mauza Mashobra, Tehsil Kasauli, Distt. Solan, H.P. (b) Grant a decree of permanent perpetual and prohibitory injunction in favour of Plaintiff No 2, and against the defendant restraining her from interfering in any manner whatsoever in his peaceful exclusive use, occupation and possession of the suit property i.e. land and building comprising Khewat No. 50 Min, Khatauni No. 52 Min and Khasra No. 191/188/137/12, measuring One Bigha situate in Mauza Mashobra, Tehsil Kasauli, Distt. Solan, H.P. (c) Allow any other relief deemed fit by this Hon’ble Court, in favour of the Plaintiffs and against the defendant, in the peculiar facts and circumstances attending to the case.” 3. The case of the plaintiffs was that plaintiff No. 1 and defendant executed an agreement of sale dated 9th May, 2004, which was followed by a supplemental agreement dated 1st October, 2004, in respect of land and building bearing Khewat No. 50 Min, Khatauni No. 52 Min and Khasra No. 191/188/137/12, measuring One Bigha, situated in Mauza Mashobra, Tehsil Kasauli, District Solan, H.P. After the execution of the agreement dated 9th May, 2004, an application was filed by plaintiff No. 1 seeking permission for purchase of land under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act. The total sale consideration of two agreements, i.e. Rs.27.00 lac stood received by the defendant as per the following details mentioned in para 4 of the plaint:- “(a) Demand Draft No. 303529, dated 3rd October, 2003, issued by State Bank of Saurashtra, New Delhi, and drawn on the State Bank of Patiala, Kasauli. Rs. 7,00,000/- (b) Pay Orders/ Manager’s Cheques, dated 28.9.2004, drawn on the Citibank Jeewan Bharti, Connaught Circus, New Delhi, as per details hereinbelow:- Sr. No. Pay Order No. Amount (Rs.) 1 848550 3,00,000/- 2 848551 4,00,000/- 3 848552 5,00,000/- 4 848553 3,00,000/- 5 848554 5,00,000/-….." 4. Receipt dated 01.10.2004 was also executed by the defendant as an acknowledgment of the payments. Though, plaintiff No 1 applied for the grant of requisite permission under Section 118 of 1972 Act, in May, 2004, yet neither any permission stood granted by the Authorities in her favour, nor it stood rejected. Therefore, sale deed in favour of plaintiff No. 1 could not be executed. As per the plaintiffs, time was never the essence of the agreement. Plaintiff No. 1 received a notice dated 21.02.2007 from Shri M.P. Kanwar, Advocate, on the instructions of the defendant, whereby defendant resiled from the aforesaid agreement by falsely claiming that “the Agreement was mutually cancelled orally and the accounts were adjusted”. Said notice was replied to by plaintiff No. 1, who while denying the contents of the same called upon the defendant to withdraw the notice. Thereafter, plaintiff No. 1 assigned her rights in the aforesaid agreement(s) in favour of plaintiff No. 2 and intimation to this effect was given to the defendant vide reply dated 19th March, 2007 itself, which was sent in response to notice dated 27.02.2007. Both the plaintiffs, as a matter of abundant precaution, issued notice dated 3rd April, 2007, informing the defendant of the said fact, more particularly that plaintiff No. 1 has assigned all her rights, title and interest under the Agreement(s) in favour of plaintiff No. 2, who was and is her nominee. Defendant was called upon to execute and register sale deed in favour of plaintiff No. 2 qua the suit property. Plaintiffs had performed their part of the contract/agreement and were ready and willing to further perform any other act in furtherance of the Agreement. Defendant was called upon to execute and register sale deed in favour of plaintiff No. 2 qua the suit property. Plaintiffs had performed their part of the contract/agreement and were ready and willing to further perform any other act in furtherance of the Agreement. Further as per the plaintiffs, despite having received the complete sale consideration of Rs.27.00 Lac, defendant was not willing to come forward to execute the sale deed qua the suit property. In this background, the suit was filed with the prayers already enumerated herein above. 5. Vide purported written statement dated 28th June, 2007, the claim of the plaintiff was contested by the defendant. As per the said written statement, on 30th September, 2003, an agreement for sale of 26 biswas of land alongwith entire building in Khata Khatauni No 41/42 and Khasra No. 137/12/2, situated at Mauza Mashobra, Pargna Dharthi, Tehsil Kasuali, District Solan (HP), was entered between plaintiff No. 1 and defendant for a total consideration of Rs.27.00 Lac. An amount of Rs.7.00 Lac was paid as advance to the defendant on 03.10.2003 and balance amount was to be paid at the time of execution and registration of the sale deed. It was agreed that as the land was under lien with a finance corporation, the same would be discharged by the defendant in 45 days from the date of the agreement. Plaintiff No. 1, being a non-agriculturist agreed to apply to the Government of Himachal Pradesh for necessary permission to purchase the land. It was agreed that since considerable time would be consumed in obtaining the permission, plaintiff No. 1 would intimate the defendant in writing as and when the permission was granted. It was also agreed that necessary permission to purchase the land was to be obtained by plaintiff No. 1 within 120 days of the execution of the agreement or such further time, as may be mutually agreed. In case, despite intimation of permission by plaintiff No. 1 to defendant, plaintiff No. 1 failed to execute sale deed within 45 days of receiving such permission, the advance paid to the defendant was liable to be forfeited. Similarly, in case of failure on the part of the defendant to execute the sale deed within the above-mentioned time, plaintiff No. 1 was entitled to get the sale deed executed through Court of Law. Similarly, in case of failure on the part of the defendant to execute the sale deed within the above-mentioned time, plaintiff No. 1 was entitled to get the sale deed executed through Court of Law. As per the written statement, plaintiff No. 1 failed to get necessary permission within the time stipulated and within extension being granted by the defendant. Therefore, the agreement between the parties stood cancelled and amount received by the defendant stood adjusted and plaintiff No. 1 was intimated the same vide registered notice dated 27th February, 2007, issued to her through an Advocate by the defendant. Further, as per the written statement, in order to seek necessary permission to purchase the land under the agreement, plaintiff No. 1 obtained signatures of the defendant on some blank non-judicial stamp papers as well as on some other papers, representing to the defendant that same were required by plaintiff No. 1 for getting the permission. Since the defendant was not keeping good health and it was not possible for her to come to Kasauli time and again, she in good faith signed the papers, which appeared to have been used by plaintiff No. 1 for executing forged and false agreement. Plaintiffs had intentionally and deliberately not disclosed the execution of agreement dated 30.09.2003 and therefore, the suit was not maintainable as defendant did not execute any agreement of sale either on 09.05.2004 or on 01.10.2004. On the dates when the above-mentioned agreements were allegedly executed, she was undergoing treatment at Delhi. It was further stated in written statement that there was no privity of contract between the defendant and plaintiff No. 2 and plaintiff No. 1 was estopped from filing the suit on the basis of agreement dated 30.09.2003 on account of her acts, deeds, conduct and acquiescence. As per written statement, plaintiff No. 1 being a non-agriculturist and non-Himachali, any agreement executed by her, was void ab initio and hit by the provisions of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act. 6. This written statement was neither signed nor verified by defendant Neelam Rana. Same was signed and verified by one Brigadier (Retd.) Bikram Rana, son of late Shri Salig Ram, as the Special Power of Attorney of the defendant. 6. This written statement was neither signed nor verified by defendant Neelam Rana. Same was signed and verified by one Brigadier (Retd.) Bikram Rana, son of late Shri Salig Ram, as the Special Power of Attorney of the defendant. The written statement was also not supported by any affidavit of the defendant but was supported by the affidavit of Brigadier (Retd.) Bikram Rana, in his capacity as Special Power of Attorney of the defendant. The contents of para 1 to 6 of the preliminary objections and para 1 to 11 of the written statement were deposed to be true, on the basis of personal knowledge of the deponent and paras 12 to 15 of the same were stated to be true on legal advise received. 7. By way of replication, the plaintiffs reiterated their case and denied the stand taken in the written statement. According to the plaintiffs, no agreement was executed between the parties on September 30, 2003. Though one agreement was executed on 3rd October, 2003, upon which, the date was wrongly reflected as 30.09.2003. It was then, that an advance payment of Rs.7.00 Lac was paid by plaintiff No. 1 to the defendant by means of a Demand Draft dated 3rd October, 2003. It was further mentioned by the plaintiffs that said agreement was superseded/replaced by agreement dated 09.05.2004, which was further supplemented by supplemental agreement dated 1st October, 2004. According to the plaintiffs, there was a reduction in the area of the land by six biswas out of total area of 26 biswas, which was originally agreed to be sold to the plaintiffs and despite the aforementioned reduction in the area, the sale consideration of Rs.27.00 Lac continued to remain unchanged due to the insistence of the defendant who refused to reduce the amount. Plaintiff No. 1 agreed to the same and thereafter on the execution of the supplemental agreement dated 01.10.2004, defendant admittedly received complete balance sale consideration of Rs.20.00 Lac. Thus on 01.10.2004, complete balance sale consideration was received by the defendant from plaintiff No. 1. It was denied that time was the essence of the agreement. It was also denied that plaintiff No. 1 got signatures of the defendant on any blank non-judicial stamp paper or any other paper as alleged. Plaintiff No. 1 denied use of any such paper for executing of any forged or false agreement. It was denied that time was the essence of the agreement. It was also denied that plaintiff No. 1 got signatures of the defendant on any blank non-judicial stamp paper or any other paper as alleged. Plaintiff No. 1 denied use of any such paper for executing of any forged or false agreement. It was also denied that defendant was undergoing treatment on 9th May, 2004. it was reiterated by plaintiff No. 1 that plaintiff No. 2 was her nominee as per the contents of agreement dated 9th May, 2004 and supplemental agreement dated 01.10.2004. It was further reiterated that suit for specific performance was maintainable even without permission under Section 118 of the H.P. Tenancy and Land Reforms Act. 8. On the basis of pleadings of the parties, which included the above mentioned written statement filed through the Special Power of Attorney holder, learned trial Court framed the following issues:- “Issue No. 1 Whether the defendant execute agreement of sale on May 9, 2004 and supplementary agreement dated 1st October, 2004? OPP. Issue No. 2 In case issue No. 1 is proved, whether the plaintiffs were and are ready and willing to perform their part of contract, as alleged? OPP. Issue No. 3 Whether the power of attorney execute in favour of Kishore Singh is forged, as alleged, if so, its effect? OPD. Issue No. 4 Whether the defendant never execute any power of attorney in favour of Shri Tikkar Ram? OPD. Issue No. 5 What plaintiff No. 1 failed to perform his part of contract and the amount paid to defendant stood mutually adjusted, if so, its effect? OPD. Issue No. 6 Whether the suit, as framed, is not maintainable? OPD. Issue No. 7 Whether the suit is barred by limitation? OPD. Issue No. 8 If issue No. 1 is proved, whether the agreements is void ab initio and is hit by provisions of Section 118 of H.P. Tenancy and Land Reforms Act? OPD. (framing of issue is objected to by the learned Counsel for the plaintiffs). Issue No. 9 Whether the plaintiffs have no locus standi to file the present suit? OPD. Issue No. 10 Relief.” 9. OPD. (framing of issue is objected to by the learned Counsel for the plaintiffs). Issue No. 9 Whether the plaintiffs have no locus standi to file the present suit? OPD. Issue No. 10 Relief.” 9. On the basis of evidence led by the parties, both ocular as well as documentary in support of their respective cases, which includes the above mentioned written statement, as also the deposition of the so called power of attorney holder of the defendant, and two documents exhibited purportedly on behalf of the defendant, the issues framed were answered by the learned Trial Court as under: “Issue No.1 No. Issue No. 2 No. Issue No. 3 No. Issue No.4 No. Issue No. 5 Partly in affirmative. Issue No. 6 Yes Issue No. 7 No. Issue No. 8 Yes Issue No. 9 Yes Issue No. 10 (Relief) The suit of the plaintiffs for specific performance of contract and permanent injunction is dismissed and it is held that plaintiff No. 1 is entitled to refund of Rs.27,00,000/- (Rupees Twenty Seven Lacs.) being earnest money from defendant.” Issue No. 10 (Relief) The suit of the plaintiffs for specific performance of contract and permanent injunction is dismissed and it is held that plaintiff No. 1 is entitled to refund of Rs.27,00,000/- (Rupees Twenty Seven Lacs.) being earnest money from defendant.” 10. Learned trial Court, thus, dismissed the suit of the plaintiffs for specific performance of contract and permanent injunction, however, plaintiff No. 1 was held entitled to refund of Rs.27.00 Lac being earnest money from the defendant. 11. Feeling aggrieved, the plaintiffs have filed this appeal. 12. It is an admitted position that defendant has not assailed that part of the judgment and decree, wherein she has been directed to refund the earnest money of Rs.27.00 Lac to plaintiff No. 1. 13. The reasonings assigned by learned trial Court while deciding Issues No. 1, 2 and 8 against the plaintiffs primarily were that execution of agreements Ext. PW5/A and Ext. PW5/B was not free from suspicion as there was no mention of agreement Ext. DW1/B by the plaintiffs in the plaint. Learned trial Court believed the averments made in the written statement that plaintiff had obtained signatures of the defendant on blank papers on which agreements Ext. PW5/A and Ext. PW5/B were prepared. PW5/A and Ext. PW5/B was not free from suspicion as there was no mention of agreement Ext. DW1/B by the plaintiffs in the plaint. Learned trial Court believed the averments made in the written statement that plaintiff had obtained signatures of the defendant on blank papers on which agreements Ext. PW5/A and Ext. PW5/B were prepared. It held that as plaintiff No. 1 was a non-agriculturist and it required permission from the State Government to purchase agricultural land, the possibility that signatures of the defendant were obtained on blank papers could not be ruled out. It also held that there were certain cuttings on Ext. PW5/A, which had gone unexplained. It further doubted as to why the stamp papers were purchased from Dharampur when the same were available at Kasauli itself where the alleged agreements were stated to have been executed. It also held the factum of execution of Ext. DW1/B not having been disclosed in the plaint to be a factor, which raised suspicion about the execution of agreements Ext. PW5/A and Ext. PW5/B. Learned trial Court also held that there was discrepancy in the description of the suit property in agreement Ext. PW5/A. Learned trial Court held that stamp papers of Ext. PW5/A did not bear the signatures of defendant Neelam Rana or her husband. Even the sale consideration was deleted with the help of fluid and filled by using ball pen without signatures of the executant. Learned trial Court held that Ext. PW5/B was surrounded by suspicious circumstances as stamp papers for preparing the said agreement seem to have been purchased at Shimla by the husband of the defendant whereas the contents indicate that the same was executed in pursuance of earlier agreement Ext. PW5/A. It also held that as Ext. PW5/A did not pertain to the suit property but pertained to some property situated in Mauja Gumma, Pargana Bhaget, therefore, Ext. PW5/B was of no help to the plaintiffs. Learned trial Court also held that agreements Ext. PW5/A and Ext PW5/B were void ab initio being hit by the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, as, plaintiff No. 1 being a non-agriculturist, could not have entered into the said agreements to purchase agricultural land in the State of Himachal Pradesh by circumventing the public policy so provided under Section 118 of the H.P. Tenancy and Land Reforms Act. It however held that the plaintiff was entitled for refund of Rs. 27.00 Lac alongwith interest @ 8% per annum from the date of filing of the suit. 14. Feeling aggrieved, the plaintiffs have filed this appeal. 15. Mr. R.L. Sood, learned Senior Counsel appearing for the appellants has strenuously argued that the judgment and decree passed by learned trial Court were not sustainable in the eyes of law and liable to be quashed and set aside and the suit of the appellants/plaintiffs was liable to be decreed as prayed for. He inter alia argued that the written statement filed to the suit was purposely not signed or verified by the defendant/respondent and on the contrary, it was signed and verified by her husband Bikram Chand Rana, who was not competent to sign or verify the same. He argued that Bikram Chand Rana was not authorized to engage any Counsel or to impart any instructions to the Counsel. As per learned Senior Counsel, there was no written statement on record to answer the plaint, contents of which, in law, stood admitted by the defendant and therefore, learned Court below ought to have had decreed the suit of the plaintiffs. He argued that even in the unauthorized written statement, signed and verified by Sh. Bikram Rana, not only the receipt of entire sale consideration stood admitted, it was also admitted in the same that agreement to sell dated 09.05.2004, Ext. PW5/A as also supplemental agreement dated 01.10.2004, Ext. PW5/B, were signed by the defendant. He further argued that written statement dated 28th June, 2007, was neither prepared on the instructions or at the instance of defendant Neelam Rana. As per him, admittedly Neelam Rana had neither signed nor verified the written statement nor she had executed any vakalatnama in favour of any Counsel who had purportedly appeared on her behalf and all the above-mentioned acts were unauthorizedly done by Bikram Chand Rana on behalf of defendant who incidentally while appearing in the Court as DW1 had admitted it to be correct that his wife had never instructed him to engage any Lawyer in the case. 16. Mr. Sood further argued that the judgment passed by the learned Trial Court is otherwise also not sustainable, as learned Trial Court has erred in not appreciating that the execution of agreement dated 9th May, 2004, Ex. 16. Mr. Sood further argued that the judgment passed by the learned Trial Court is otherwise also not sustainable, as learned Trial Court has erred in not appreciating that the execution of agreement dated 9th May, 2004, Ex. PW5/A and supplemental agreement dated 1st October, 2004, Ex. PW5/B stood duly proved by the plaintiff by way of testimony of not only the plaintiff, but also the persons who had witnessed the execution of the said agreements. According to Mr. Sood, learned Trial Court erred in holding that the execution of these documents was shrouded with suspicion, whereas their execution stood duly proved, in accordance with law, by the plaintiffs. He further argued that learned Trial Court has also erred in not appreciating that plaintiff No 1 had rightly assigned her rights in favour of plaintiff No. 2 in terms of the agreement entered into between plaintiff No. 1 and defendant, which was permissible in law. 17. In response, Mr. Vipin Pandit, learned Counsel appearing for the respondent has argued that there was no infirmity in the judgment and decree passed by the learned Trial Court. He argued that there was on record duly executed General Power of Attorney in favour of Brigadier Bikram Chad Rana by respondent/defendant, i.e. Ext DW1/A. He further argued that even otherwise there was no infirmity with the written statement having been signed by Brigadier Bikram Chand Rana in view of the provisions of Section 120 of the Indian Evidence Act as he was the husband of the defendant. He further argued that learned Trial Court had rightly held that agreement dated 9th May, 2004, Ex. PW5/A and agreement dated 1st October, 2004, Ex. PW5/B were non est in the eyes of law, as they were not only shrouded with suspicion, but even otherwise, even if it was assumed that these agreements were entered into between the plaintiff No. 1 and the defendant, then also they were hit by the provisions of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act. He further argued that the assignments of her rights by plaintiff No. 1 in favour of plaintiff No. 2 was not sustainable in law and therefore also, the suit of the plaintiffs was not liable to be decreed and the judgment and decree passed by the learned Trial Court was liable to be upheld. 18. He further argued that the assignments of her rights by plaintiff No. 1 in favour of plaintiff No. 2 was not sustainable in law and therefore also, the suit of the plaintiffs was not liable to be decreed and the judgment and decree passed by the learned Trial Court was liable to be upheld. 18. I have heard learned Counsel for the parties at a considerable length and gone through the record of the case as also the judgment and decree passed by the Court below. 19. Record demonstrates that the Civil Suit was filed on 7th May, 2007. Notice was issued to the defendant on 28th May, 2007 for 15th June, 2007. 20. On 15.06.2007, a Memo of Appearance was filed on behalf of the defendant by Shri Mohinder Gautam, Advocate and he was given three weeks’ time to file Power of Attorney, whereas 30 days time was granted to file written statement from the date of service. 21. Record further demonstrates that Vakalatnama was filed purportedly on behalf of the defendant by S/Shri Deepak Gupta and Mohinder Gautam, Advocates, signed by Brigadier (Retd.) Bikram Chand Rana, in his capacity as Special Power of Attorney of the defendant, namely, Neelam Rana. 22. Record further demonstrates that written statement to the plaint was filed in the Court on 10th July, 2007. Same was signed and verified by Brigadier (Retd.) Bikram Chand Rana, son of Sh. Salig Ram, as Special Power of Attorney (hereinafter referred to as 'SPA’) of the defendant. He verified paras 1 to 6 of the preliminary objections and paras 1 to 10 of the written statement on merit to be true on the basis of his personal knowledge. 23. Record further demonstrates that on behalf of the defendant, only one witness deposed in the Court and the same was DW1 Brigadier (Retd.) Bikram Chand Rana. 24. Record further demonstrates that two documents were exhibited on behalf of the defendant, i.e. Ext. DW1/A, copy of a general power of attorney and Ext. DW1/B, sale agreement dated 30.09.2003. 25. Ext. DW1/A is the copy of General Power of Attorney dated 27.03.2012 executed by Smt. Neelam Rana wife of Brigadier (Retd.) Bikram Chand Rana to do all acts and deeds mentioned therein on her behalf pertaining to the property referred to therein. DW1/A, copy of a general power of attorney and Ext. DW1/B, sale agreement dated 30.09.2003. 25. Ext. DW1/A is the copy of General Power of Attorney dated 27.03.2012 executed by Smt. Neelam Rana wife of Brigadier (Retd.) Bikram Chand Rana to do all acts and deeds mentioned therein on her behalf pertaining to the property referred to therein. This General Power of Attorney has been executed on stamp papers which were purchased on 24th March, 2012, from Stamp Vendor Shiv Kumar Jain, Licence No. 202, District Court, Sector 10, Dwarka, New Delhi. This Attorney has been attested by the Notary on 27.03.2012. This demonstrates that Ext. DW1/A came into existence only on 24th March, 2012. 26. There is no other exhibited power of attorney executed by defendant Neelam Rana in favour of Brigadier (Retd.) Bikram Chand Rana, either General or Special. In other words, there is no document on record duly exhibited by the defendant to demonstrate that as on the date when Brigadier (Retd.) Bikram Chand Rana either filed the Vakalatnama in the civil suit on behalf of the defendant as her SPA or signed, verified and got filed the written statement on behalf of the defendant, in the civil suit, there stood executed an attorney by the defendant in his favour authorizing him to do such acts as were done by Brigadier (Retd.) Bikram Chand Rana purportedly on behalf of the defendant. 27. Thus, there was neither any valid authorization in favour of a Counsel to represent the defendant in the Case, nor there was any duly filed written statement on record on behalf of the defendant. This extremely important aspect of the matter has been ignored by the learned Trial Court, which failed to appreciate that in the absence of there being any valid written statement on behalf of the defendant, refuting the contents of the plaint, the averments made in the plaint have gone un-rebutted. 28. In this background, another fact which gains great importance and which has also not been correctly appreciated by the trial Court is that defendant never entered into the witness box to prove her case. 28. In this background, another fact which gains great importance and which has also not been correctly appreciated by the trial Court is that defendant never entered into the witness box to prove her case. This Court is not suggesting that because the defendant has not entered into the witness box, therefore, the suit was liable to be decreed but the fact of the matter remains that (a) in the absence of there being any valid written statement filed on behalf of the defendant; and (b) defendant herself having not entered into the witness box to contest the case of the plaintiffs; all that learned Trial Court was duty bound to do was to consider whether plaintiffs had made out a case on the basis of pleadings, documents exhibited by them and witnesses produced by them in the Court in their favour. 29. The statement of witness who deposed on behalf of the defendant could not have been used for any purpose in excess of what that particular witness could have had deposed on the basis of his personal knowledge, keeping in view the fact that there was no valid written statement on record on behalf of the defendant, and a party can not lead evidence beyond pleadings. In this peculiar background of the case, Section 120 of the Indian Evidence Act also does not come to the rescue of the respondent-defendant. 30. Incidentally, neither during the pendency of the Civil Suit nor during the pendency of the appeal, any effort or endeavour was made on behalf of the respondent/defendant to seek liberty of the Court to file a proper written statement. 31. Therefore, the findings which have been returned by the learned Trial Court against the plaintiffs to the effect that agreements Ext. PW5/A and Ext PW5/B were forged, were shrouded with suspicious circumstances, or that the factum of non-mentioning of agreement entered into between plaintiff No. 1 and defendant in the year 2003 in the plaint, created a doubt on the claim of the plaintiffs, stand completely vitiated. The judgment passed by the learned trial Court relying upon the averments made in a non-existent written statement is bad in law. 32. The judgment passed by the learned trial Court relying upon the averments made in a non-existent written statement is bad in law. 32. Learned Trial Court erred in not appreciating that it is settled law that where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by other side, a presumption would arise that the case set up by him is not correct. {See (1999) 3 SCC 573 }. 33. Hon’ble Supreme Court in Janki Vashdeo Bhojwani and Another versus Indusind Bank Ltd. and Others, (2005) 2 SCC 217 , has held that a general power of attorney holder can appear, plead and act on behalf of a party, but he cannot become a witness on behalf of the said party. He can only appear in his own capacity and no one can delegate the power to appear in the witness box on behalf of himself. Hon’ble Supreme Court further held that to appear in the witness box is altogether a different act and general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. In my considered view, the same principle would apply even for the defendant. 34. It is relevant to take note of another judgment of the Hon’ble Supreme Court rendered in Man Kaur (Dead) by LRs. Versus Hartar Singh Sangha, (2010) 10 SCC 512 , on this legal issue, relevant paras whereof are reproduced herein under:- 15. We may next refer to two decisions of this Court which considered the evidentiary value of the depositions of attorney holders. This Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. held as follows: "13. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. * * * 17. ....In the case of Shambhu Dutt Shastri v. State of Rajasthan, it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. 18. The aforesaid judgment was quoted with the approval in the case of Ram Prasad v. Hari Narain. It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC. * * * 21. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC. * * * 21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri followed and reiterated in the case of Ram Prasad is the correct view." 16. In Shankar Finance & Investments vs. State of AP, this Court explained in what circumstances, the evidence of an attorney holder would be relevant, while dealing with a complaint under section 138 of the Negotiable Instruments Act, 1881 signed by the attorney holder of the payee. This Court held : (SCC pp. 542-43, paras 15-16) "15…...A power of attorney holder of the complainant, who does not have personal knowledge, cannot be examined. But where the attorney holder of the complainant is in charge of the business of the complainant and the attorney holder alone is personally aware of the transactions, and the complaint is signed by the attorney holder on behalf of the complainant payee, there is no reason why the attorney holder cannot be examined as the complainant..… 16. In regard to business transactions of companies, partnerships or proprietary concerns, many a time the authorized agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent or attorney-holder has signed the complaint, it will be absurd to say that he should not be examined under Section 200 of the Code, and only the Secretary of the company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction, should be examined." 17. To succeed in a suit for specific performance, the plaintiff has to prove: (a) that a valid agreement of sale was entered by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part of the obligations in terms of the contract. If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross examination on that issue. A plaintiff cannot obviously examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. Therefore a third party who has no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney holder of the person concerned. 18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved. (c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders. (e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder. (f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his “state of mind” or “conduct”', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide’ need and a purchaser seeking specific performance who has to show his 'readiness and willingness’ fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or “readiness and willingness”. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.” 35. At this stage, it is relevant to take note of the statements of the witnesses who deposed in the Court on behalf of the plaintiffs and defendant. 36. Record demonstrates that plaintiff Meera Dewan examined nine witnesses including herself. PW-1 Deepak Kumar, who was posted as a Registration Clerk in the office of Sub Registrar-cum-Tehsildar, Kasauli, produced original Additional Book No. 4, Volume- 108, wherein against Serial No. 258, on pages 15 to 18, Power of Attorney executed by defendant Neelam Rana in favour of Kishore Chand was pasted. The same was exhibited as Ext. PW1/A. 37. PW-2 Narinder Kumar, who was posted in the office of Deputy Commissioner, Solan, proved on record Ex. The same was exhibited as Ext. PW1/A. 37. PW-2 Narinder Kumar, who was posted in the office of Deputy Commissioner, Solan, proved on record Ex. PW2/A, which was an application received in the office of Deputy Commissioner, Solan, under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act from plaintiff No. 1 Meera Dewan. 38. PW-3 Devinder Kumar Sharma, who was a Stamp Vendor at Kasauli, produced original register, photocopy whereof is Ex. PW3/A to prove that he had sold stamp papers on 01.10.2004 to Smt. Neelam Rana, i.e., the defendant for the purpose of executing an affidavit as also General Power of Attorney. 39. PW-4 Ghanshyam Sharma proved the entries made in Register Ex. PW4/A, which was maintained by him as a Document Writer working at Kasauli in the regular course of his business. He deposed that on 01.10.2004 at the instance of Smt. Neelam Rana, he had written a Power of Attorney and a Will. He stated that entries were made to this effect in his register at Sr. No. 865 qua Power of Attorney and at Sr. No. 866 qua Will, which were signed by Smt. Neelam Rana in his presence. 40. Plaintiff Meera Diwan stepped into the witness box as PW5. She stated in the Court that she knew the defendant since 1978 and they were family friends. Defendant owned property in Kasauli, which was a two storeyed house with adjoining land in Mauja Mashobra, Tehsil Kasauli, District Solan. The defendant intended to sell the said property. Defendant contacted plaintiff No. 1 and thereafter, a document was drawn on 9th May, 2004, original of which is Ext. PW5/A. She identified her signatures on the same as also the signatures of the defendant. She further deposed that supplementary agreement Ext. PW5/B was executed on 1st October, 2004 between the parties and identified her signatures as also the signatures of the defendant upon the same. She further stated that an amount of Rs.27.00 Lac by way of total consideration was paid to the defendant, out of which, an amount of Rs.20.00 Lac was paid on 1st October, 2004 vide receipt Ext. PW5/C, which was duly received by the defendant. She also deposed that she was ready and willing to execute the agreements in issue and had applied for permission before the Collector under Section 118 of the H.P. Tenancy and Land Reforms Act. PW5/C, which was duly received by the defendant. She also deposed that she was ready and willing to execute the agreements in issue and had applied for permission before the Collector under Section 118 of the H.P. Tenancy and Land Reforms Act. She deposed that parties met in the house of plaintiff No. 1 in the month of February, 2007. She also deposed that as plaintiff No. 1 had not got permission as required under Section 118 of the Act supra and as defendant pressurized her to get permission at the earliest and in that circumstances, she nominated plaintiff No. 2 by giving Authority Letter in his and defendant agreed for the same. She also deposed that in March, 2007, defendant informed that possession of the said property had been handed over to plaintiff No. 2. She further stated that in 2003, an agreement was executed between the parties regarding a house which was existing on the same land measuring total 26 biswas. She was advised that it was better to go for another agreement as it would be difficult to get permission for land measuring more than one bigha and thereafter, she decided to buy structure and lawn for which consideration amount remained the same. She further deposed that Rs.7.00 Lac stood paid to the defendant at the time of entering into first agreement in the year 2003. She also deposed that she had assigned property rights in favour of plaintiff No. 2 under the agreement to sell. In her cross examination, she admitted that there was no mention of agreement executed in the year 2003 in subsequent agreements. She however explained that subsequent agreement was necessitated since land more than one bigha could not be purchased by her. She further stated that she was not aware as to why the earlier agreements were not mentioned in the documents which were prepared by the defendant and her husband. She also stated in the cross examination that the stamp papers for preparing the agreement dated 9th May, 2004, were purchased by the husband of the defendant. She also stated that said documents were got typed by the husband of the defendant, at Kasauli. She denied that she had obtained signatures of defendant on non-judicial papers in order to obtain permission under Section 118 of the H.P. Tenancy and Land Reforms Act. She also stated that said documents were got typed by the husband of the defendant, at Kasauli. She denied that she had obtained signatures of defendant on non-judicial papers in order to obtain permission under Section 118 of the H.P. Tenancy and Land Reforms Act. She denied that agreement to sell dated 9th May, 2004 and 1st October, 2004, were forged. She denied the suggestion that agreements Ext. PW5/A and Ext. PW5/B, contained the signatures of the husband of the defendant. She also denied that Kishore Singh was not holding the power of attorney on behalf of the defendant. She also explained in her cross examination that the balance amount of Rs.20.00 Lac which was paid on 1st October, 2004, was not in respect of agreement dated 30th September, 2003, but was in respect of agreements dated 09.05.2004 and 1st October, 2004, Ext. PW5/A and Ext. PW5/B respectively. 41. PW-7 Ashok Chopra deposed that he knew both the plaintiff as well as defendant since mid 1970’s. He stated that he had seen the suit property. He further deposed that he met defendant in the house of plaintiff No. 1 in the month of February, 2007. He further deposed that plaintiff No. 1 asked him as to whether he was interested in purchase the suit land, as she was finding it difficult to obtain permission from the Government under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. He also deposed that defendant was insisting that the sale deed be executed. He further deposed that he was a bonafide agriculturist in the State of Himachal Pradesh and could buy the property from defendant No. 1 as a nominee of the plaintiff and, therefore, he told the plaintiff that he was interested in buying the same. He stated that he was appointed nominee by Ms. Meera Dewan to purchase the property and documents were handed over to defendant Neelam Rana, but the letter in issue was scribed by Ms. Meera Dewan. He signed the letter and handed it over to the defendant. He also stated that the possession of the suit land was handed over to him by Neelam Rana through her Power of Attorney Sh. Kishore Singh. 42. PW-8 Mukesh Thareja deposed that agreement dated 1st October, 2004, Ex. PW5/B was executed in his presence. He was signatory to the same. He also stated that the possession of the suit land was handed over to him by Neelam Rana through her Power of Attorney Sh. Kishore Singh. 42. PW-8 Mukesh Thareja deposed that agreement dated 1st October, 2004, Ex. PW5/B was executed in his presence. He was signatory to the same. He also identified the signatures of Neelam Rana on the said document. He also deposed that Brigadier Rana was also present at the relevant time. 43. PW-9 Om Parkash Verma, who is a witness to the execution of agreement dated 9th May, 2004, Ex. PW5/A, stated that he knew Brigadier Bikram Rana as also his wife, Neelam Rana (defendant). He recognized his signatures on Ex. PW5/A. He deposed that the document was signed by plaintiff No. 1 and Neelam Rana. He also recognized the signatures of plaintiff Meera Dewan as also those of defendant Neelam Rana on the said document. He deposed that he was called by the defendant and her husband and that the document was already typed when he signed the same. In his cross-examination, he stated that he knew defendant as his land was adjacent to the land of the defendant. He reiterated that the typed document was produced by the defendant. He also reiterated that the document was signed by the parties in his presence. He denied the suggestion that signatures of defendant were obtained on blank document and thereafter the same was typed. 44. PW-10 Sat Pal Rana, who was serving as a Registration Clerk in the office of Sub Registrar, Kasauli, deposed that Power of Attorney Ext.PW7/A, i.e., the Power of Attorney executed by Bikram Chand Rana in favour of Kishore Singh, son of Amrai Singh to deal with the property subject matter of the suit as per the terms mentioned therein, was registered at Sr. No.258 in Book No. 4, Volume-108 at pages 15 to 18. 45. Brigadier (Retd.) Bikram Chand Rana, who entered the witness box as DW1, stated that he was the General Power of Attorney holder of defendant Neelam Rana, his wife. He further stated that his wife was at Delhi and not in a position to travel or appear in the Court for medical reasons. He stated that his wife owned land comprised in Khasra Nos. 137/12/1 and 137/12/2, measuring 13 bighas in Kasauli and that he was looking after the said land. He further stated that his wife was at Delhi and not in a position to travel or appear in the Court for medical reasons. He stated that his wife owned land comprised in Khasra Nos. 137/12/1 and 137/12/2, measuring 13 bighas in Kasauli and that he was looking after the said land. He also stated that plaintiff Meera Dewan and her husband were known to him. He further deposed that his wife had entered into an agreement to sell 26 biswas of land at Kasauli to plaintiff Meera Dewan in September, 2003. He further deposed that Khasra No. 137/12/1 was agreed to be sold for Rs. 27.00 Lac. He further deposed that after 6-8 months, Manager of plaintiff Mukesh Thareja got signed some judicial and non-judicial papers on the pretext that the same were required for obtaining permission. Incidentally, he has not deposed that from whom Mukesh Thareja got the said papers signed. He also stated that Ashok Chopra was owned to him. He further stated that when plaintiff failed to get permission to purchase the land, he served her with legal notice Ext. PW5/D. He stated that Kishore Singh was not known to him and Kishore Singh never remained Attorney to his wife. In his cross examination, he admitted that power of attorney Ext. DW1/A was not registered. He also admitted it to be correct that his wife never instructed any Lawyer in the case to represent her. He admitted it to be correct that written statement was signed by him. He admitted it to be correct that signatures on Ext. PW7/A, power of attorney, were that of his wife Neelam Rana. He also stated that it was not in his knowledge that agreement Ext. PW5/A was executed because it was difficult to get permission of open land to the extent of 27 biswas including the house. He however submitted that signatures on Ext. PW5/A seem to be of his wife or the same may be doubtful. He admitted it to be correct that agreement Ext. PW5/A bears the signatures of his wife, which were encircled at points D,E and F. Then said signatures may be of his wife or may be a clever copy of signatures of his wife. 46. Without going into the details of the statements of above mentioned witnesses, suffice it is to say that the execution of agreements to sell Ex. PW5/A and Ex. 46. Without going into the details of the statements of above mentioned witnesses, suffice it is to say that the execution of agreements to sell Ex. PW5/A and Ex. PW5/B stood proved by the testimony of plaintiff Meera Dewan as also the testimonies of the witnesses, i.e., PW-8 Mukesh Thareja, who was witness to the execution of Ex. PW5/A and Ex. PW5/B and PW-9 Om Parkash Verma, who was witness to the execution of agreement dated 9th May, 2004, Ex. PW5/A. 47. Veracity of Ext. Ex. PW5/A, has been disbelieved by learned trial Court on uncorroborated version of the defendant, as contained in the purported written statement that this document alongwith Ex. PW5/B was prepared on certain papers, upon which, her signatures were obtained by the plaintiffs. 48. Ex. PW5/B has been ignored by the learned Trial Court on the ground that the same was only supplemental agreement and as agreement dated 09.05.2004, i.e., Ex. PW5/A had not been proved in accordance with law, therefore, the supplemental agreement was of no consequence. 49. As I have already discussed above, there was no written statement on record, as envisaged in law filed by the defendant. The purported written statement was filed by a person on behalf of the defendant, who as on the date when such written statement was filed, was not having any authority in law from the defendant to file any written statement on her behalf to the suit. Incidentally, even in the said written statement, the factum of the signatures of the defendant on Ex. PW5/A and Ex. PW5/B has not been denied. Allegation therein is of forgery. That being the case, onus was squarely upon the defendant to have had proved that the documents were got forged and were fraudulently prepared on certain papers, on which her signatures were obtained. Incidentally, she has not entered the witness box. 50. Allegation of fraud is personal in nature and the same could have been proved by none else, but the defendant. This extremely important aspect of the matter has been completely ignored by the learned Trial Court. In the absence of defendant deposing in the Court and further in the absence of defendant proving on the strength of some cogent evidence that Ex. PW5/A and Ex. This extremely important aspect of the matter has been completely ignored by the learned Trial Court. In the absence of defendant deposing in the Court and further in the absence of defendant proving on the strength of some cogent evidence that Ex. PW5/A and Ex. PW5/B were in fact a result of fraud and forgery, such conclusions could not have been arrived at by the learned Trial Court on conjectures and surmises. The inferences which have been drawn by the learned Trial Court to hold that these documents were shrouded with suspicious circumstances, are also completely unsustainable in law. Simply because some papers upon which these documents were prepared, were not purchased at Kasauli, did not render the documents to be shrouded with suspicious circumstances. Simply because the date of execution of Ex. PW5/a was written by hand and the amount was also written by hand, this did not render the documents to be suspicious. Further simply because the stamp papers on which these documents were prepared were purchased sometime before the execution of the agreements, did not render the agreements to be shrouded with suspicion. As far as the description of suit property in Ex. PW5/A is concerned, though it finds mention in para 3 thereof that the suit property is situated in Mauza Gumma, Pargana Bhaget, but this appears to be a typographical error, because in para-2 of the said agreement, correct description of the suit property has been given as situated in Mauza Mashobra, Pargana Dharti and this is again reiterated in supplemental agreement Ex.PW5/B. Besides this, it is not the case of the defendant that she had some other property also at Mauza Gumma, Pargana Bhaget, as mentioned in para-3 of Ex. PW5/A. All these important aspects of the matter have been completely ignored by the learned Trial Court. 51. A perusal of Ex. PW5/B, i.e., supplemental agreement dated 1st October, 2004 demonstrates that as per the same, inter alia the following was agreed between the parties: “….That the parties to this agreement specifically agree that the present agreement shall be supplemental to the original agreement to sell dated 9-5- 2004. 51. A perusal of Ex. PW5/B, i.e., supplemental agreement dated 1st October, 2004 demonstrates that as per the same, inter alia the following was agreed between the parties: “….That the parties to this agreement specifically agree that the present agreement shall be supplemental to the original agreement to sell dated 9-5- 2004. It is further hereby agreed that in the event, permission from the State Government under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972, is not accorded in favour of the Purchaser, then the Purchaser shall have every right to assign her interest in favour of any other person and/or nominee(s). The Seller shall either directly or through her Attorney execute and register the necessary sale deed(s) or any other conveyance deed in favour of any such nominee(s)/assignee(s). 52. Hon’ble Supreme Court in Shyam Singh Vs. Daryao Singh and others, (2003) 12 SCC 160 has held that unless the contents of the document in question and evidence in relation thereto are so clear to infer a prohibition against assignment or transfer, the right of repurchase has to be held to be assignable or transferable and cannot be treated as personal to the contracting parties. 53. As per Ex. PW5/B, it was agreed between plaintiff No. 1 and defendant that purchaser shall have every right to assign her interest in favour of any other person/nominee and seller shall either directly or through her Attorney execute and register the necessary sale deed(s) or any other conveyance deed(s) in favour of any such nominee(s)/assignee(s). There is no prohibition against assignment in the contents of the documents (supra). Therefore, it cannot be said that the assignment of her rights by plaintiff No. 1 in favour of plaintiff No. 2, as contemplated in Ex. PW5/A and Ex. PW5/B, was not permissible in law. 54. On a query of the Court, learned Counsel for the respondent very fairly submitted that no legal action stood initiated by the respondent-defendant against the appellants/plaintiffs on alleged misuse of signed blank papers of the defendant by plaintiff No. 1. It is also not in dispute that there is no evidence on record that as on the date when agreements Ext. PW5/A and Ext. PW5/B were executed, defendant was in New Delhi and not at Kasauli. 55. Learned trial Court has erred in not appreciating that the contents of agreement dated 09.05.2004, Ext. It is also not in dispute that there is no evidence on record that as on the date when agreements Ext. PW5/A and Ext. PW5/B were executed, defendant was in New Delhi and not at Kasauli. 55. Learned trial Court has erred in not appreciating that the contents of agreement dated 09.05.2004, Ext. PW5/A, were self speaking and there was indeed no necessity of referring to any previous agreement having been entered into between plaintiff No. 1 and the defendant, if any, because even in the purported written agreement, it was not the case of the defendant that something more was contemplated in agreement dated 09.05.2004, Ext. PW5/A, with regard to the sale of the suit land than what was contained in the earlier agreement Ext.DW2/B. On the other hand, plaintiff No. 1 has taken the stand that as per the earlier agreement, the total land agreed to be sold was 27 biswas which by way of agreement Ext. PW5/A was reduced to 20 biswas only, though there was no reduction in the sale consideration. This important aspect of the matter has also been ignored by the learned trial Court. 56. The judgment of learned trial Court is otherwise also not sustainable because there are contradictions in the findings returned by it with regard to agreements Ext. PW5/A and Ext. PW5/B. On one hand, learned trial Court says that the said documents are forged, whereas on the other hand, it has thereafter held that these agreements were void ab initio being hit by the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act. In my considered view, if as per learned trial Court, these documents were forged, then there was no necessity for learned trial Court to hold that the same were hit by the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act. 57. In fact from the stand taken by learned Counsel for the respondent during the course of arguments, what emerges is that even the respondent was not sure as to what stand was to be taken by her vis-a-vis agreements Ext. PW5/A and Ext. 57. In fact from the stand taken by learned Counsel for the respondent during the course of arguments, what emerges is that even the respondent was not sure as to what stand was to be taken by her vis-a-vis agreements Ext. PW5/A and Ext. PW5/B. This is for the reason that whereas learned Counsel for the respondent has firstly tried to convince the Court that the findings returned by the learned trial Court that the documents in issue were forged, were correct findings, but in the same breath, he has also made an endeavour to justify the findings returned by the learned trial Court that even if this Court comes to the conclusion that the said agreements were legally executed, then also the defendant was not bound by the same as the same are hit by the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act. This becomes more crucial taking into consideration the fact that there is no challenge made by the defendant to the findings returned by the learned trial Court whereby the defendant has been directed to refund the sale consideration of Rs.27.00 Lac to plaintiff No. 1. 58. The findings returned by the learned trial Court to the effect that agreements Ext. PW5/A and Ext. PW5/B were forged documents, are not based on any cogent evidence on record but are based on conjectures and surmises as learned trial Court has held that there was a possibility that these documents were forged and could have been prepared on blank papers, upon which signatures of the defendant were procured as plaintiff/appellant No. 1 was required to obtain permission under Section 118 of the H.P. Tenancy and Land Reforms Act to purchase the land. It has not been proved by the defendant that any blank documents or papers were got signed from her by plaintiff No. 1. As such these findings are not sustainable in the eyes of law. 59. Now, I would like to dwell upon the dismissal of the suit by the learned trial Court on the ground that the agreements entered into between plaintiff No. 1 and defendant were void ab initio and hit by the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act. 59. Now, I would like to dwell upon the dismissal of the suit by the learned trial Court on the ground that the agreements entered into between plaintiff No. 1 and defendant were void ab initio and hit by the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act. It is not in dispute that plaintiff No. 1 is a non-agriculturist and in the absence of there being permission granted in her favour by the Government of Himachal Pradesh as per the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, she cannot purchase agricultural land in the State. However, the conclusion drawn by the learned trial Court that because plaintiff No. 1 was a non-agriculturist, therefore, agreement to sell entered into between plaintiff No. 1 and defendant for purchase of agricultural land is void ab initio, is palpably wrong. Learned Court below has ignored the settled principles of law in this regard as laid down by this Court in Rahul Bhargava vs. Vinod Kohli and others, (2008) 1 SLC 385, relevant paras whereof are reproduced hereinbelow: “13. The suit was filed on 7.6.1990, therefore, rights of the parties crystallized on the date of agreement, dated 7.6.1989 and on the date of filing of the suit on 7.6.1990. It has not been pointed out that Section 118 of the Act was further amended after it was substituted vide Section 4 of Act No. 6 of 1988 and before the agreement and filing of the suit. On the date of agreement and the filing of the suit, there was no restriction for entering into an agreement of the nature executed on 7.6.1989 between respondent No.1 and appellant and it cannot be said that the agreement Ex. PW 1/A on the date of its execution was in violation of Section 118 of the Act existing on that date. The suit for specific performance filed on the basis of the agreement, dated 7.6.1989 Ex. PW 1/A is valid and maintainable. It has been proved on record that respondent No.1 got permission to purchase the suit property, vide Ex. PW 3/A dated 31.1.1991, which was valid for 180 days, which expired during the pendency of litigation. The respondent No.1 cannot be blamed for this. The respondent No.1 can obtain fresh permission or she can request for renewal of permission already granted in her favour. PW 3/A dated 31.1.1991, which was valid for 180 days, which expired during the pendency of litigation. The respondent No.1 cannot be blamed for this. The respondent No.1 can obtain fresh permission or she can request for renewal of permission already granted in her favour. In these circumstances, no fault can be found with the agreement and the suit filed by respondents No.1 and 2 for specific performance and injunction on the basis of agreement. 14. There is another aspect of the case, for filing a suit for specific performance on the basis of agreement, no permission is required, under Section 118 of the Act. It is only if the suit is decreed such permission may be required at the time of registration of the sale deed on the basis of specific performance decree. In Manzoor Ahmed Magray vs. Ghulam Hassan Aram and others (1999) 7 SCC 703 , the Hon’ble Apex Court has held as follows:- “It is to be stated that the appellant has neither raised the said contention in the written statement nor during the trial. However, in the appeal, the appellant sought to raise the contention that the specific performance qua the suit land cannot be granted as the transfer or alienation of the suit property is prohibited under the provisions of the J&K Agrarian Reforms Act, 1972, the J&K Agrarian Reforms Act, 1976 and the J&K Prohibition on Conservation of Lands and Alienation of Orchards Act, 1975. The Court declined to entertain the plea on the ground that it was raised almost 24 years after the filing of the suit by the plaintiff and the same, if permitted to be raised, would prejudice the rights of the plaintiff. Even considering that the said plea is a pure question of law, in our view, it is without any substance. The definition under Section 2(4) of the J&K Agrarian Reforms Act, 1972 specifically excludes “land” which was an orchard on the first day of September 1971. Sub-section (5) of Section 2 defines “orchard” to mean a compact area of land having fruit trees grown thereon or devoted to cultivation of fruit trees in such number that the main use to which the land is put is growing of fruits or fruit trees. In the present case, agreement to sell was executed on 14.7.1971 in respect of an orchard land. In the present case, agreement to sell was executed on 14.7.1971 in respect of an orchard land. Therefore, the said Act was not applicable to the land in dispute. Similar provisions are there in the Agrarian Reforms Act, 1976 which gives the definition of the word “land” under Section 2(9) and definition of the word “orchard” under Section 2(10). From the said definition, it is apparent that orchard is excluded from the operation of the Agrarian Reforms Act. Learned counsel for the appellant, however, further referred to Section 3 of the J&K Prohibition on Conversion of Land and Alienation of Orchards Act, 1975 which is as under:- “3. Prohibition on conversion of land and alienation of orchards.- (1) Notwithstanding anything contained in any other law for the time being in force---- (a) no person shall alienate an orchard except with the previous permission of the Revenue Minister or such officer as may be authorized by him in this behalf; Provided that alienation of orchards to the extent of four kanals only in favour of one or more persons for residential purposes shall not need any permission. (b) …. …. …. Considering the aforesaid section, it is apparent that prohibition on transfer of orchards is not absolute and the question of obtaining previous permission as contemplated under Section 3(1)(a) would arise at the time of execution of the sale deed on the basis of decree for specific performance. Section 3 does not bar the maintainability of the suit and permission can be obtained by filing proper application after the decree is passed. Therefore, it cannot be stated that decree for specific performance is not required to be passed. Further, under Section 3 of the J&K Prohibition on Conservation of Land and Alienation of Orchards Act, 1975, prohibition on transfer is limited. Firstly, the proviso makes it clear that alienation of orchards to the extent of four kanals only in favour of one or more persons for residential purposes will not require any permission. Secondly, for more than four kanals of land, previous permission of the Revenue Minister or such officer as may be authorized by him in this behalf is required to be obtained. Secondly, for more than four kanals of land, previous permission of the Revenue Minister or such officer as may be authorized by him in this behalf is required to be obtained. Dealing with similar contention, this Court in Bai Dosabai v. Mathurdas Govinddas [ 1980 (3) SCC 545 ] observed that even if the Act prohibits alienation of land, if the decree is passed in favour of the plaintiff, it is required to be moulded suitably.” 15. On the point of alienation/ transfer of land after permission Section 3 of J&K Act noticed above and Section 118 of the Act in substance are similar. There is no absolute prohibition, under Section 118 of the Act on transfer of land to non-agriculturist and transfer can be made in favour of non-agriculturist with permission of Government under Section 118 of the Act. This question at the most will arise at the time of execution of sale deed on the basis of decree for specific performance. Section 118 of the Act does not bar the maintainability of the suit for specific performance and injunction on the basis of agreement. The respondent No.1 had earlier obtained permission from the State Government for purchasing the property vide permission Ex. PW 3/A. 16. It has been submitted that learned District Judge has passed the decree in infinity by ordering that the appellant (defendant No.1) would execute the sale deed in respect of the suit property in favour of respondent No.1 within one month of the renewal of the permission, under Section 118 of the Act. The execution of decree of specific performance is also governed by law of Limitation and, therefore, the plea of learned counsel for the appellant that learned District Judge has passed decree in infinity is not tenable. The learned District Judge has rightly appreciated the material on record. No case for interference has been made out. The substantial questions of law No. 1 to 3 are decided against the appellant and in favour of respondents No.1 and 2. The impugned judgement, decree do not require any interference.” 60. Therefore, the findings returned to this effect by the learned Court below are perverse, not sustainable in the eyes of law and are accordingly set aside. 61. The substantial questions of law No. 1 to 3 are decided against the appellant and in favour of respondents No.1 and 2. The impugned judgement, decree do not require any interference.” 60. Therefore, the findings returned to this effect by the learned Court below are perverse, not sustainable in the eyes of law and are accordingly set aside. 61. In view of discussion held herein above, this appeal is allowed with costs and judgment and decree dated 21.09.2017 passed by learned Additional District Judge-I, Solan, is set aside and the suit of the plaintiffs is decreed by directing the defendant to execute and register Sale Deed in favour of plaintiff No. 2 in terms of Agreement to Sell dated 09.05.2004, Ext. PW5/A and Supplemental Agreement dated 01.10.2004, Ext. PW5/B in respect of land measuring one bigha consisting of two storeyed building bearing Khasra No. 191/188/137/12, situated at Mauja Mashobra, Tehsil Kasauli, District Solan, HP. Decree sheet be prepared accordingly. Pending miscellaneous application(s), if any, also stand disposed of.