Punjab-Haryana High Court
Sukhpal Singh & Ors vs Mukesh Kumar & Ors on 31 October, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
RSA No. 4041 of 2014 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
-.-
RSA No. 4041 of 2014 (O&M)
Date of decision: 31.10.2014
Sukhpal Singh and others ........ Appellants
Versus
Mukesh Kumar and others .......Respondent(s)
Coram: Hon'ble Mrs. Justice Rekha Mittal
-.-
Present: Mr. S S Salar, Advocate
for the appellants
-.-
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
The present regular second appeal has been directed against the judgments and decrees passed by the Courts below whereby the suit filed by the respondent/plaintiff Mukesh Kumar for possession by way of specific performance of the agreement to sell dated 19.05.2009 was decreed by the trial Court and the judgment passed by the trial Court was affirmed in appeal by the Additional District Judge, Mansa vide impugned judgment and decree dated 15.05.2014.
Mukesh Kumar, respondent/plaintiff filed the suit for possession by way of specific performance of the agreement to sell dated MOHAN LAL BIMBRA 2014.11.11 12:04 I attest to the accuracy and authenticity of this document Chandigarh RSA No. 4041 of 2014 (O&M) 2 19.05.2009 on the premise that Joginder Singh (since deceased) now represented by his legal representatives agreed to sell land measuring 4 kanals 16 marlas vide agreement to sell dated 19.05.2009 for a sale consideration of Rs.18,00,000.00 per acre, received Rs.2,30,000.00 as earnest money and agreed to execute and register sale deed on or before 15.11.2009. On 04.08.2009, the plaintiff came to know from Patwari Halqa that Joginder Singh alienated the suit property in favour of his sons and on its basis, mutation No. 20577 was sanctioned in their favour. It is further averred that the plaintiff always remained ready and willing to perform his part of the agreement but defendant No. 1 became dishonest and sold the property in favour of his sons.
Defendant No. 1 filed the written statement and in turn, denied all the averments set up in the plaint. He raised certain legal objections with regard to the plaintiff having not approached the Court with clean hands and suit being debarred by his act and conduct.
Defendants No. 2 to 5, the subsequent purchasers (appellants) filed their separate written reply, seriously contesting claim of the plaintiff.
The learned trial Court, on appreciation of evidence adduced by the parties and rival submissions made by their respective counsel came to uphold claim of the respondent/plaintiff that Joginder Singh executed the agreement in question and the plaintiff is entitled to seek specific performance thereof. As has been noticed hereinbefore, the findings recorded by the learned trial Court were affirmed in appeal.
Counsel for the appellants contends that neither the respondent/plaintiff nor the witnesses examined by him in support of his MOHAN LAL BIMBRA 2014.11.11 12:04 I attest to the accuracy and authenticity of this document Chandigarh RSA No. 4041 of 2014 (O&M) 3 claim that Joginder Singh executed the agreement to sell, identified signatures of Joginder Singh on the impugned agreement. The plaintiff did not examine any hand writing expert to prove that the agreement to sell was signed by said Joginder Singh. The amount of earnest money, purportedly paid by the respondent/plaintiff, was not reflected in his income tax return which falsifies his claim in regard to payment of Rs.2,30,000.00 to Joginder Singh at the time of agreement. Another submission made by counsel is that Mukesh Kumar, the plaintiff during his cross examine had admitted that Joginder Singh, the proposed vendor was suffering from paralysis and always remained confined to bed though voluntarily stated that he had been using crutches for walking. Hukam Chand, one of the attesting witnesses to the alleged agreement has deposed during his cross examination that Joginder Singh had called him from his house which is at a distance of 5/7 killas from Bhikhi and from there they came to the Tehsil office. It is argued that since Joginder Singh was suffering from paralysis, version of Hukam Chand that Joginder Singh approached him at his residence which is at a distance of 5/7 killas from Bhikhi and then took him to Tehsil office, creates a serious doubt in the plea of the plaintiff that agreement to sell was executed by Joginder Singh (since deceased).
I have heard counsel for the appellants and perused the records. Mukesh Kumar, plaintiff appeared in the witness box and examined Jarnail Singh (PW2) and Hukam Chand (PW3), the attesting witnesses of the agreement to sell. The plaintiff has successfully reiterated that the agreement to sell was executed by Joginder Singh and he received an amount of Rs.2,30,000.00 towards earnest money at the time of MOHAN LAL BIMBRA 2014.11.11 12:04 I attest to the accuracy and authenticity of this document Chandigarh RSA No. 4041 of 2014 (O&M) 4 execution of agreement between the parties. As the plaintiff and his witnesses have categorically stated that Joginder Singh signed the agreement on receipt of Rs.2,30,000.00 after understanding the contents thereof, the mere fact that the witnesses have not deposed that they identify signatures of Joginder Singh on the agreement is not sufficient to accept contention of the appellants that the plaintiff and his witnesses failed to prove execution of the agreement. Joginder Singh died during pendency of the proceedings, therefore, he never appeared in the witness box to state on oath that the agreement was not executed by him nor he received earnest money as per the case set up by the plaintiff. Joginder Singh was the best person to say something about the agreement to sell, therefore, there is actually no rebuttal to the evidence adduced by the respondent/plaintiff. One of the legal heirs of Joginder Singh, namely Gora Singh son of Joginder Singh stepped into the witness box and he admitted signatures of his father on the agreement. He has not specifically denied during cross examination that his father entered into an agreement to sell land measuring 4 kanals 16 marlas for a sale consideration of Rs.18,00,000.00 per acre on 19.05.2009 and received an amount of Rs.2,30,000.00 towards earnest money.
Much stress has been laid by counsel for the appellants in regard to physical condition of said Joginder Singh being afflicted with paralysis. The plaintiff has deposed that Joginder Singh had been using crutches for walking as he suffered from paralysis. There is nothing on record to suggest that Joginder Singh was not in a position to walk as he suffered from paralysis. Gora Singh, the son of vendor, is conspicuously silent in his affidavit tendered in examination-in-chief if the deceased was MOHAN LAL BIMBRA 2014.11.11 12:04 I attest to the accuracy and authenticity of this document Chandigarh RSA No. 4041 of 2014 (O&M) 5 not in a position to walk, therefore, unable to go to the house of Hukam Chand at a distance of 5/7 killas from Bhikhi and thereafter going to the Tehsil office. Joginder Singh executed sale deed No. 408 dated 01.07.2009 ( Ex.P3) in favour of his sons on the basis whereof mutation No. 20577 was sanctioned. As has been noticed earlier, there is nothing in the statement of Gora Singh that the deceased was suffering from disability to walk. This apart, perusal of the copy of sale deed executed by Joginder Singh in favour of his sons produced by counsel for the appellants would show that the oldest person in the photograph appears to be Joginder Singh, who was standing without any support and difficulty. In this view of the matter, the appellants cannot take any advantage to their contentions from the fact that Joginder Singh was using crutches for walking.
So far as plea that the plaintiff has not reflected payment of Rs.2,30,000.00 in his income tax return, it would not negate plea of the respondent/plaintiff that he paid Rs.2,30,000.00 to Joginder Singh when otherwise said plea is duly corroborated by both the attesting witnesses, who admittedly have no hostility against Joginder Singh or his family members. This apart, Joginder Singh did not appear in the witness box to deny payment of Rs.2,30,000.00 and his son Gora Singh has not specifically denied said fact. The testimony of the plaintiff and his witnesses has been rightly relied upon by the Courts below to accept contention of the plaintiff that Joginder Singh received Rs.2,30,000.00 towards earnest money at the time of execution of the agreement.
In view of what has been discussed hereinabove, no substantial question of law arises for consideration, when on the contrary, there is no MOHAN LAL BIMBRA 2014.11.11 12:04 I attest to the accuracy and authenticity of this document Chandigarh RSA No. 4041 of 2014 (O&M) 6 error much less illegality in the concurrent findings of fact recorded by the Courts below.
Dismissed in limine.
(Rekha Mittal) Judge 31.10.2014 mohan MOHAN LAL BIMBRA 2014.11.11 12:04 I attest to the accuracy and authenticity of this document Chandigarh