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2019 DIGILAW 14 (JHR)

Adit Singh v. Anand Ganjhu

2019-01-02

ANIL KUMAR CHOUDHARY

body2019
JUDGMENT Anil Kumar Choudhary, J. - Heard the parties. 2. The defendant/appellant has preferred this appeal being aggrieved by the judgment and decree dated 20.02.2006 passed by learned Subordinate Judge-I, Khunti in Title Suit No.10 of 2003 whereby and where under the learned court below has decreed the suit of the plaintiff for specific performance and directed the defendant to execute a deed of sale on receipt of the balance consideration amount of Rs.5,000/- within three months from the date of the judgment and on failure of the compliance of the direction, it was made open to the plaintiffs to deposit the balance consideration amount of Rs.5,000/- in court and to get the document of deed of sale executed through process of the court within six months from the period prescribed. 3. The case of the plaintiffs in brief is that the defendant is the owner of the suit land. The defendant in order to meet his urgent need and requirement expressed his intention to sell the suit land and the plaintiffs agreed to purchase the same. The total consideration amount of the suit land was fixed at Rs.3,00,000/-. The defendant voluntarily out of free will entered into a registered agreement for sale dated 21.03.2003 with the plaintiffs to sell the suit land for consideration amount of Rs.3,00,000/- and on the date of such agreement, the defendant received as sum of Rs.2,95,000/- as advance. After execution of the agreement, the plaintiffs requested the defendant to execute and register the sale deed on receipt of the balance consideration amount but the defendant avoided the same on one pretext or another. On the instructions of the defendant, the plaintiffs also purchased the required non-judicial stamp on 25.05.2003 in the name of the plaintiffs and duly communicated to the defendant about purchase of the stamp paper. But still the defendant postponed the execution of the sale deed. The plaintiffs have all along been ready and willing to purchase the suit land on payment of balance consideration amount and made repeated requests to the defendant regularly but still the sale deed has not been executed by the defendant hence the plaintiffs filed the suit. 4. But still the defendant postponed the execution of the sale deed. The plaintiffs have all along been ready and willing to purchase the suit land on payment of balance consideration amount and made repeated requests to the defendant regularly but still the sale deed has not been executed by the defendant hence the plaintiffs filed the suit. 4. In his written statement, the defendant besides the usual defence, admitted that he is the owner of the suit land and pleaded that he never intended to sell the suit land described in the Schedule of the plaint and also pleaded that the Schedule is vague and lacks proper identification. The defendant further pleaded that the moderate price of such class of suit land was not less than Rs.1,000/- per decimal. Hence, the defendant has not fixed the amount of Rs.3,00,000/- which comes to Rs.600/- per decimal, to be the total consideration amount for the suit. The defendant thereafter pleaded that the consideration amount was fixed at Rs.5,20,000/- but no advance whatsoever was ever made to the defendant though the plaintiffs have promised the same. The defendant was made to believe that advance money of Rs.2,95,000/- will be paid before the Registration Officer at the time of registration of the agreement. The defendant was also made to believe that unless the endorsement of receipt of advance money is not made on the agreement, the same cannot be produced for registration and on behalf of the plaintiffs further assurance was given to the defendant that the defendant will be paid the amount before the Registration Officer but such assurance was not fulfilled. The defendant made repeated demands to pay the advance money agreed upon but the plaintiffs always postponed the matter for one excuse or the other. It is further specifically pleaded by the defendant that he was not allowed to read the agreement nor the same was read over to him and the plaintiffs have adopted fraudulent method in going through the agreement and getting it registered. The defendant was asked to trust that everything was okay. Hence, it was pleaded by the defendant that the alleged agreement was illegal, invalid and was not operational. The defendant was asked to trust that everything was okay. Hence, it was pleaded by the defendant that the alleged agreement was illegal, invalid and was not operational. The defendant further pleaded that there was no valid reason to withhold only Rs.5,000/- out of the total consideration amount of Rs.3,00,000/- as claimed by the plaintiffs and not to get the sale deed itself executed by the defendant. The defendant also pleaded that the plaintiffs have never requested the defendant to execute the sale deed on receipt of the balance consideration amount. 5. Learned trial court, on the basis of the rival pleadings of the parties framed altogether nine issues which are as follows:- Issues (i) Have the plaintiffs got any cause of action for the suit? (ii) Is the suit as framed maintainable in its present form? (iii) Is the suit barred by limitation? (iv) Is the agreement for sale between the parties valid and lawful? (v) Is (sic Are) the plaintiffs entitled for specific performance of contract for sale as prayed for? or alternatively; (vi) Whether the plaintiffs is (sic are) entitled to refund of Rs.2,95,000/- advance amount with interest from the date of agreement till repayment? (vii) Is the alleged agreement in accordance with the agreed terms between the parties? And whether the said agreement was fraudulently made? (viii) Whether the agreement in question is illegal, invalid and nonoperational? (ix) To any other relief or reliefs to which the plaintiffs are entitled? 6. In support of its case, the plaintiffs altogether examined four witnesses besides proving the following documents:- Ext. 1 is agreement for sale between the parties dated 21.03.2003. Ext. 2 is map annexed with the deed of agreement for sale. Ext. 2/a is endorsement made by the executant on first page of the agreement. 7. On the other hand, the defendant examined three witnesses in support of his case. 8. The learned court below took up issue Nos.4, 7 and 8 together and after considering the evidence in the record arrived at the conclusion that the impugned agreement for sale executed by the defendant entered into between the defendant and the plaintiffs was valid, genuine and no fraud or misrepresentation has been done in execution and registration of the sale deed. The learned court below thereafter took up issue No.5 and came to a conclusion that the plaintiffs are entitled to get a decree for specific performance of agreement for sale dated 21.03.2003 and held that issue No.6 relating to the alternative relief is infructuous. Further, the learned court below held that the suit is in time and maintainable and the plaintiffs have cause of action for filing the suit and also held that the plaintiffs will be entitled for relief as claimed for. 9. Mr. S. K. Sharma, learned counsel appearing for the appellant submitted that the learned court below failed to appreciate the evidence in the record in its proper perspective and erred by not considering the contention of the defendant/appellant that he was made to believe that everything as agreed to between the parties has been incorporated in the said agreement and that the defendant was not allowed to read the agreement nor the same was read over to him. It is further submitted by Mr. Sharma that the admission of execution of the agreement does not debar the defendant from challenging the said agreement on the ground of forgery being committed by the plaintiffs, in collusion with the scribe, in execution of the said agreement. It is further submitted that learned court below failed to appreciate that the plaintiffs cannot take the plea of willingness and readiness by making payment of balance amount as no advance was paid towards the consideration amount. It is further submitted by Mr. Sharma that the learned court below erred by not taking into consideration the oral testimony and the evidence in the record in respect of the contention of the defendant that the said agreement was executed by fraud practised by the plaintiffs and the scribe on the ground that Section 92 of the Evidence Act envisages that no evidence of any oral agreement or statement shall be admitted, as between the parties to an instrument which has been reduced to a form of a document relating to the terms of any contract, grant or other disposition of a property. In support of his contention, Mr. Sharma relied upon the judgment of Hon''ble Patna High Court passed in the case of Ganesh Prasad Versus Deo Nandan Raut and Others, (1985) AIR Patna 94 wherein the Hon''ble Patna High Court has held as under in paragraph-8:- 8. In support of his contention, Mr. Sharma relied upon the judgment of Hon''ble Patna High Court passed in the case of Ganesh Prasad Versus Deo Nandan Raut and Others, (1985) AIR Patna 94 wherein the Hon''ble Patna High Court has held as under in paragraph-8:- 8. " What follows from these provisions is that parol or collateral evidence as to a condition precedent to any such contract or disposition of property is permissible, but existence of any distinct subsequent agreement to rescind or modify the same in cases in which such terms are incorporated in a document registered in accordance with law is not permissible. Though the general principle is that extrinsic parol evidence contradicting, varying, adding to or subtracting from the terms of solemn written instrument is inadmissible, there are numerous exceptions and qualifications to it. Strict application of the rule may operate harshly if the exceptions are not allowed their full say because a person unwittingly falling a prey to a fraud, intimidation or similar designs shall not get opportunity to prove the same and the rule shall operate not in the interest of justice but against it ..". 10. It is further submitted by Mr. Sharma that there is no separate money receipt executed by the defendant to the effect that he has received the advance amount and the P.W.-3 in his cross-examination has stated that the money was paid to the defendant in his house instead of the court premises as stated by the P.W.-2. Hence, the learned court below ought to have disbelieved the case of the plaintiffs and ought to have dismissed the suit of the plaintiffs. 11. Mr. D. K. Chakrawarti, learned counsel appearing for the respondents defended the impugned judgment and decree and submitted that it is the admitted case of the defendant that he has executed the agreement for sale which has been marked Ext.1. He has made endorsement on the said agreement in his own handwriting that he has received Rs.2,95,000/- as advance and it has come in the oral evidence by the parties that the agreement for sale was necessitated because the parties had come for executing the deed of sale but as on that date the stamp papers of the required value were not available, so instead of executing the sale deed in favour of the plaintiffs, the defendant entered into an agreement for sale vide Ext. 1. 1. Hence, the contention of the defendant that he has not received the consideration amount for which he has made endorsement in his own handwriting, which writing is admitted by the defendant and has been marked Ext.2/a goes to establish the genuineness of the agreement entered into between the parties. Hence, it is submitted that the learned court below having rightly decreed the suit, this appeal, being without any merit, be dismissed. 12. Having heard the rival submissions made at the Bar and after careful perusal of the evidence in the record, the only point for determination crop up in this appeal is:- "Whether the learned court below has rightly appreciated the evidence in the record in its proper perspective?" 13. Out of the four witnesses examined by the plaintiffs, P.W.1-Anand Ganjhu is the plaintiff No.1 himself. In his examination-in-chief filed in the shape of affidavit he has corroborated the averments made in his plaint. In his cross-examination, he has inter alia stated that the land was decided to be sold between the parties on 10th February, 2003. The document was to be registered on 27th but as the stamp paper was not available, hence, the agreement was entered into between the parties. 14. P.W.2-Shobha Mahto is one of the persons who were present at the time of execution and registration of the document between the parties. He has also supported the case of the plaintiffs by stating that the consideration amount was fixed at Rs.3,00,000/- and Rs.2,95,000/- was paid as advance and in his cross-examination he has stated that the talk of the sale of the land took place in the house of P.W.1. The defendant came there. Payment was made. A sum of Rs.2,95,000/- was paid in the court but not in the presence of the officer but he further went on to say that the amount was paid in the house. The same was not paid before the Registrar. 15. P.W.3-Vimal Kishore Mahto is also a witness of the execution of the agreement between the parties. He has also stated about the total consideration amount having been fixed at Rs.3,00,000/- and Rs.2,95,000/- having been paid as advance and the plaintiffs also purchased non judicial stamp paper worth Rs.21,000/- and approached the defendant for executing the sale deed. But the defendant avoided execution of the sale deed on one pretext or other. He has also stated about the total consideration amount having been fixed at Rs.3,00,000/- and Rs.2,95,000/- having been paid as advance and the plaintiffs also purchased non judicial stamp paper worth Rs.21,000/- and approached the defendant for executing the sale deed. But the defendant avoided execution of the sale deed on one pretext or other. The plaintiffs approached the defendant for execution of the sale deed in presence of the P.W.3 several times. In his cross-examination he has stated that the advance money was paid to the defendant in the house of plaintiff No.1 at 6-7.00 a.m. but at that time no document was prepared regarding payment of money and after that all of them came to court. Before going to court, they went to Jangira (Village of the defendant) and the defendant kept the money in his house and executed the agreement. 16. It is pertinent to mention here that there is absolutely no crossexamination of P.W.3 regarding his testimony that in his presence also the plaintiffs approached the defendant several times for execution of the sale deed. 17. P.W.4-Aniruddh Kumar is an advocate''s clerk. He has stated about the execution of the agreement of sale. In his cross-examination he has stated that before execution of the agreement, the same was prepared as per the instructions of the defendant and after typing of the agreement, the same was read over to the defendant by the P.W.4 in presence of plaintiff No.1. He read over and explained to everybody. 18. Out of the witnesses examined on behalf of the defence, D.W.1-Adit Singh is the defendant himself. He has corroborated the averments made in his plaint. In his cross-examination, he has stated that he negotiated with the plaintiffs for selling the suit land. The negotiation took place in his house. The distance between his house and the house of the plaintiffs is two kilometers. The negotiation went on for about one week. The negotiation was finalized and agreement was prepared. He signed the agreement. He gave the description of the suit land. His signature on the agreement on confrontation was marked Ext.1 and his endorsement on the agreement was marked Ext.2. It was identified by Kodua Mahto. The P.W.2 and P.W.3 also came on the date of execution of the agreement. The negotiation was finalized and agreement was prepared. He signed the agreement. He gave the description of the suit land. His signature on the agreement on confrontation was marked Ext.1 and his endorsement on the agreement was marked Ext.2. It was identified by Kodua Mahto. The P.W.2 and P.W.3 also came on the date of execution of the agreement. The endorsement on the first page of the agreement was in the handwriting of the D.W.1-defendant and on confrontation it was marked Ext.2/a. 19. D.W.2-Padu Mahto is the identifying witness of the agreement. He has stated that it was decided between the parties to sell the land for a consideration amount of Rs.5,20,000/-. The advance amount was not paid by the plaintiffs to the defendant. On the assurance that the advance will be paid, the defendant signed the agreement. D.W.2 has also not gone through the contents of the agreement. In his cross-examination, the D.W.2 has stated that he was not present at the time of negotiation of sell between the parties. The defendant has also sold the land to the brother of the D.W.2. The D.W.2 is an illiterate person. 20. D.W.3-Manmohan Singh is the brother of the defendant. In his examination-in-chief he has stated that the suit land is a very good quality land and the value of the such land will be very high and it will not be less than Rs.1,000/- per decimal. In his cross-examination the D.W.3 has stated that agreement for sale has been entered into between the parties but he does not know for what consideration amount the agreement for sale was made. 21. Perusal of Ext.1 shows that in the said agreement, it has categorically been mentioned at para No.5 that an advance amount of Rs.2,95,000/- has been received by the defendant. There is endorsement of the Registering Officer that the defendant admitted execution of the said agreement in his presence. As already indicated above, the defendant has made endorsement in his own handwriting acknowledging receipt by him of Rs.2,95,000/-. It appears that the defendant is a literate person. There is endorsement of the Registering Officer that the defendant admitted execution of the said agreement in his presence. As already indicated above, the defendant has made endorsement in his own handwriting acknowledging receipt by him of Rs.2,95,000/-. It appears that the defendant is a literate person. It is highly improbable that if it was agreed to between the parties that the consideration amount would be Rs.5,20,000/- and it has been categorically mentioned in the agreement at two places one of them being in paragraph No.4 wherein it has been categorically mentioned that the consideration amount is total Rs.3,00,000/- and in that paragraph no other amount has been mentioned and the said amount is appearing prominently in paragraph No.4 so any normal person while signing the agreement, can very well read the amount Rs.3,00,000/-. There is no plausible explanation put forth by the defendant why he did not object to the consideration amount of Rs.3,00,000/- being mentioned in the said agreement marked Ext. 1. 22. So far as the contention of Mr. Sharma regarding discrepancy of evidence of P.W.2 that he has first stated that consideration amount was paid in the court is concerned, it is common knowledge that the P.W.2 who comes from a rural background being resident of village- Ganaloya, P.S. Murhu, District Ranchi, such slip may occur but subsequently during the cross-examination itself he has amended himself by stating that the consideration amount was paid in the house. So, the slip of tongue on the part of a witness of the plaintiffs certainly is not by itself sufficient to throw out the entire case of the plaintiffs. 23. So far as the contention of Mr. Sharma regarding the admissibility of evidence in terms of Proviso of Section 92 of the Evidence Act is concerned it will be profitable to refer Section 92 of the Evidence Act at this stage which reads as under:- 92. Exclusion of evidence of oral agreement. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives-in-interest, for the purpose of contradicting, varying, adding to, or substracting from, its terms. Proviso (1).- Any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. Proviso (2).- The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3).- The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4).- The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5).- Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract. Proviso (6).- Any fact may be proved which shows in what manner the language of a document is related to existing facts. Thus it is crystal clear from Section 92 of the Evidence Act that though certainly the evidence regarding fraud, intimidation, illegality etc. can be adduced to invalidate any document but in this case, as already indicated above, the evidence in the record is sufficient to establish the case of the plaintiffs that the defendant was very much aware that the consideration amount was fixed at Rs.3,00,000/- and he has received Rs.2,95,000/- as advance which he has categorically mentioned in his own handwriting by making endorsement in the first page of the agreement and he has admitted the admission of the agreement before the Registering Officer without any demur. So, the ratio of Ganesh Prasad (supra) is certainly not applicable in the facts of this case and this Court is of the considered view that there is no improper appreciation of the evidence in the record by the learned court below and the evidence in the record is sufficient to show that the defendant executed an agreement marked Ext. 1 being very much aware that the consideration amount was of Rs.3,00,000/- and he has executed the agreement on receipt of Rs.2,95,000/-. 24. In view of the discussions made above, this Court is of the considered view that there is no merit in this appeal. Accordingly, the impugned judgment and decree dated 20.02.2006 passed by learned Subordinate Judge-I, Khunti in Title Suit No.10 of 2003 is confirmed and this appeal, being without any merit is dismissed but in the circumstances without any cost. In view of disposal of this appeal, the order of stay granted vide order dated 12.07.2007 stands vacated. 25. Let the lower court records be sent back to the learned court below along with a copy of this judgment forthwith.