Punjab-Haryana High Court
Bakhtawar Singh vs Gurdial Singh on 29 July, 2002
Equivalent citations: (2003)133PLR467
Author: K.C. Gupta
Bench: K.C. Gupta
JUDGMENT K.C. Gupta, J.
1. This Regular Second Appeal is directed by the defendant against the judgment and decree dated 3.12.1998 passed by the Additional District Judge, Ludhiana, whereby he dismissed his appeal and up-held the judgment and decree dated 8.10.1996 passed by the Additional Civil Judge (Senior Division), Samrala, vide which the suit of the respondent (plaintiff) for possession by way of specific performance of the agreement to sell was decreed with costs.
2. Briefly stated, the facts are that the appellant (defendant) was the owner of the suit land measuring 13 kanals 1 marla situated in the revenue estate of Village Gagra, Tehsil Samrala, as detailed in Para No. 1 of the plaint. He agreed to sell it to the respondent at the rate of Rs. 85,000/- per Killa vide agreement dated 20.11.1991 and received Rs. 50,000/- in cash as earnest money, He promised to execute the sale deed by 15.12.1992. It was agreed that all the sale expense would be borne by the respondent an if the appellant committed breach of the agreement, then the respondent would have the option to get the sale deed executed by way of specific performance of the agreement or to recover doubib the amount of the earnest money. It was further alleged that in case the respondent committed default in getting the sale deed registered, then his earnest money shall stand forfeited. It was also averred that respondent had been requesting the appellant to execute and get the sale deed registered but the appellant had been putting off the matter on one pretext or the other and ultimately the respondent went to the office of Sub Registrar on 15.12.1992 with balance consideration and expenses for execution of the sale deed and appeared before the Sub Registrar on 15.12.1992 with balance consideration and expenses for execution of the sale deed and appeared before the Sub Registrar, Samrala but the appellant failed to turn up and he got himself marked present. It was next averred that the respondent had been ready and willing to perform his part of the contract but the appellant had committed default. With these allegations, suit for specific performance or in the alternative for the recovery of Rs. one lac i.e., double the amount of earnest money alongwith interest at the rate of 1% per mensum with effect from 20.12.19991 till the realisation of the amount was filed.
3. The appellant contested the suit and stated that he never entered into an agreement with the respondent to sell his land in dispute and in fact he used to sell his produce being agriculturist at the sop of M/s Piare Lal and Company, Commission Agent, New Grain Market, Khanna and the respondent also used to sell his produce at that shop. He further stated that on 25.10.1991, he sold paddy produce at the shop of the above men tioned firm and wanted some money for purchasing the fertilizers for sowing wheat crop, so, lie asked Balwinder Kumar, partner of the firm, to lend him some money but, he stated that he would lend money if he would execute some document and consequently, he was taken to Samrala where a document was executed and his thumb impression us well as signatures were obtained. He further stated that he was illiterate and could not sign and he was made to sign without telling the terms of that document, Later on, he came to know that his signatures as well as thumb impression had been obtained on agreement in question, he also stated that he was given only an amount of Rs. 5,000/- by Balwinder Kumar and that too after making entry in the Bahi Khata of the firm. After 2-3 days, he was given another amount of Rs. 10,000/- by getting his signatures in the Bahi Khata of the firm. He denied that he had obtained Rs. 50,000/- from the respondent through the alleged agreement dated 20.11.1991 and it was all result of fraud and mis-representation.
With these pleadings, the following issues were struck:-
"1. Whether the defendant Bakhtawar Singh entered into an agreement dated 20.11.1991 to sell the suit land in favour of the plaintiff? OPP
2. Whether the plaintiff has always been ready and willing to perform his part of agreement? OPP
3. Whether the alleged agreement is void, illegal and not enforceable? OPD
4. Relief.
4. The parties adduced their evidence. After hearing counsel for the parties, vide judgment dated 8.10.1-996, the Additional Civil Judge (Senior Division), Samrala, decreed the suit for specific performance of agreement to sell with costs and directed the appellant to get the sale deed executed and registered within two months from the date of decree and the respondent was directed to deposit the balance sale consideration within one month by holding under Issue No. 1 that the appellant had entered into an agreement to sell dated 20.11.1991, Ex.P.1 with the respondent after receiving Rs. 50,000/- as earnest money. Under Issue No. 2, it was held that the respondent had always been ready and willing to perform his part of the contract. Under Issue No. 3, it was held that the agreement to sell was a perfectly legal and valid document and was enforceable.
5. Aggrieved by the said judgment and decree, the defendant filed an appeal, which was dismissed by the Additional District Judge, Ludhiana, vide judgment and decree dated 3,12.1998.
6. Still dissatisfied, the defendant has filed the present Regular Second Appeal.
7. I have heard Sh. G.R.P. Singh, counsel for the appellant, Sh. Ramesh Sharma, counsel for the respondent and carefully gone through the record.
8. Counsel for the appellant contended that the appellant had not entered into any agreement dated 20.11.1991 to sell his land to the respondent and had not received Rs. 50,000/- as earnest money as alleged and on the other hand, the respondent had played a fraud with him in connivance with Balwinder Kumar, partner of M/s Piare Lal and Company, Khanna, and Gurmail Singh. He further contended that appellant was an illiterate person and could not sign in Punjabi and as such, the agreement to sell, Ex.P1 should not be acted upon. He next urged that there is interpolation in the amount as it was originally Rs. 10,000/- which had converted into Rs. 50,OOOA and the forgery had been fully established on the basis of the testimony of DW-6 Gian Parkash Sharma, Hand-writing Expert. In my opinion, the contention of the learned counsel are not tenable, in order to prove the due execution of the agreement, the respondent has examined PW-1 Gurmail Singh, witness of the agreement, PW-2 Amrik Singh Deed Writer, PW-3 Balwinder Kumar, another witness of the agreement, besides his statement as PW-4.
9. PW-1, Gurmail Singh slated that he knew Bakhtawar Singh, appellant and he had executed an agreement of sate Ex.P1 for land measuring 13K 1M at the rate of Rs. 85,000/- per Killa and Rs. 50,000/- were paid as earnest money. He further stated that Amrik Singh, Deed Writer had scribed the agreement on 20.11.1991 who read over and explained the same to the parties and Bakhtawar Singh, after admitting the same to be correct, thumb marked and signed in Punjabi and Gurdial Singh and also signed in Punjabi. He next stated that he and other witness had signed it in English, Ho further stated that the sale deed was agreed to be executed by 15.12.1992. In cross-examination, he admitted that Gurdial Singh, respondent was the husband of his sister and the agreement was scribed at 2 P.M. He further stated that the payment was made in his presence and Bakhtawar Singh had given a note in his own handwriting about the receipt of earnest money of Rs. 50,000/-. The only suggestion put to him was that Bakhtawar Singh, appellant, did not execute any agreement in his presence and his signatures were obtained by Gurdial Singh. No suggestion was put to him that Bakhtawar Singh did not receive Rs. 50,000/- as earnest money and did not make an endorsement on the agreement that he had received Rs. 50,000/-. Since, these facts had not been put to the witness, so, it shall be presumed that the appellant admitted his version to be correct with respect to the payment of Rs. 50,000/- to him and also with respect to making endorsement on the agreement, that he had received Rs. 50,000/-
10. PW-2 Amrik Singh, Deed Writer, stated that he had scribed the agreement, Ex.P1 at the instance of Bakhtawar Singh and Gurdial Singh on 20.11,1991. After writing, it was read over to them and the same was signed and thumb marked in his presence. He next stated that Bakhtawar Singh had signed the agreement in Punjabi and had also thumb marked it while Gurmail Singh and Balwinder Kumar had signed it in English. He also stated that earnest money of Rs. 50,000/- was received by Bakhtawar Singh from Gurdial Singh and Bakhtawar Singh had written a note in Punjabi Ex.P1/A regarding the receipt of earnest money of Rs. 50,000/- in his presence which is Ex.P1/B. He also stated that he had made an entry in his register at Sr. No. 667 which was signed by Bakhtawar Singh, appellant, in Punjabi and he had also thumb marked it while Gurdial Singh had signed it. In cross-examination, he stated hat Gurdial Singh and Balwinder Kumar were not known to him earlier. Again, no suggestion was put to him that Bakhtawar Singh, appellant, had not received Rs. 50,000/- and he did not make any endorsement, Ex.P1/A in his own hand or that he did not thumb-mark or sign the agreement, Ex.P1. The only suggestion put to him was that the terms of the agreement" were not read over and explained to him. To the same effect is the statement of PW-3 Balwinder Kumar, another marginal witness of the agreement. In cross-examination, he stated that bargain was struck in his shop of pesticide at Khanna at about 11 A.M. while the agreement was executed at 2 P.M. at Samrala. He denied the suggestion that the appellant had not executed any agreement of sale in favour of the respondent. He further denied the suggestion that signatures and thumb impressions of the appellant were obtained by fraud by him and Gurdial Singh. Again no suggestion was put to him that the appellant had not received Rs. 50,000/- in his presence. PW-4 Gurdial Singh had also supported his allegations on oath.
11. The appellant has not denied his signatures and thumb impression, on the agreement, Ex.P1. His only allegation is that the same were obtained by fraud and misrepresentation. However, it has not been proved by any cogent evidence that either any fraud was played with him or the agreement was obtained by misrepresentation.
12. The main stress of the counsel for the appellant is that on the first page of the agreement, in the endorsement Ex.P1/A, an amount of Rs. 10,000/ was mentioned as having been received by Bakhtawar Singh but later on this amount was converted into an amount of Rs. 50,000/- by making alteration and this has been duly proved from the statement of DW-5 Bakhtawar Singh and DW-6 Gian Parkash Sharma, Document Expert, Patiala. DW-5 Bakhtawar Singh, in his cross examination, stated that in the document respondent had mentioned that amount Rs. 50,000/- had been paid but in fact it was amount of Rs. 10,000/-. He further stated that he had mentioned Rs. 10,000/- having been received in cash in hand which is Ex.P1/A but he did not mention having received Rs. 50,000/-. His statement to this effect is not believable. In the written statement, Ex.Pl, dated 20.11.1991 but his thumb impression and signatures were obtained by the misrepresentation and fraud and further he is an illiterate person. If he is an illiterate person, then how he had made endorsement Ex.P1/A. If he had not executed any agreement, then how he had received Rs. 10,000/-. The only inference is that the statement of DW-5 is unbelievable an in fact he had executed agreement Bx.Pl on 20,11.1991 in favour of Gurdial Singh, respondent, and received Rs. 50,000/- as earnest money and had promised to get the sale deed executed on or before 15.12.1992. It is true that DW-6 had stated that in the endorsement Ex.P1/A, the figure '1' has been converted into '5'. To the naked eyes also, there appears to be some over-writing but it does not effect the agreement because in the body of the agreement it is also stated that the appellant had received Rs. 50,000/- in cash for spending on the cultivation and payment of debt. Moreover, in the written statement, the appellant had stated that he had received Rs. 5,000/- from Bal-winder Kumar" on the day when his thumb impression and signatures were obtained on the document at Samarala and then after 2-3 days, another amount of Rs. 10,000/- was given. Thus, if Rs. 5,000/- had been given on that day, then the figure would have been Rs. 5,000/-and it is not the case that after the execution of the agreement one figure 'O' has been added to make, it Rs. 50,000/-. The document Export could not say exactly as to when the figure was converted into '5'. Thus, there is possibility that it may have been converted at the time of execution of the agreement. It was not put either to PW-2 Amrik Singh, Deed Writer or PW-1 Gurmail Singh and PW-3 Balwinder Kumar marginal witness of the agreement that in fact Bakhtawar Singh had made endorsement Ex.P1/A, for having received Rs. 10,000/-, which was subsequently converted into an amount of Rs. 50,000/-.
13. In view of the discussion above, I hold that Bakhtawar Singh had executed agreement, Ex.P1 on 20.11.1991 after receiving Rs. 50,000/- in cash as earnest money and had agreed to sell his land at the rate of Rs. 85,000/- per acre and promised to get the sale deed executed by 15.12.1992 and no fraud was played with him and he has also not misrepresented the facts.
14. Counsel for the appellant lastly contended that respondent was only a milk vendor and it is difficult to believe that he had kept Rs. 50,000/- at his house and in fact the source of payment of money had not been proved. Again the contention of the learned counsel is not tenable. There is no evidence that Gurdial Singh is a Milk Vendor. On the other hand, he had stated in his statement that he is a farmer. The source, at this stage, is not material as to from where he had brought the money because it is proved on file that in fact Rs. 50,000/- were paid to the appellant. The authority Santa Singh (died) through LRs. v. Arjan Singh, 1992(1) R.C.R. (Civil) 195 (P&H), is not applicable to the facts of the present case because in the above mentioned authority, there was suit for recovery of amount on the basis of pronote and the plaintiff had failed to prove that he possessed the amount of Rs. 30,000/- kept at his house and paid to defendant under pronote and receipt. Further pronote and receipt were proved to be only paper transaction. Moreover, it was a first appeal filed in the High Court and not the second appeal. However, in the present case, there is concurrent finding of fact recorded by both the Courts below that the appellant had executed an agreement Ex.Pl in favour of the respondent after receiving Rs. 50,000/- as earnest money and had promised to get the sale deed executed by 15.12.1992 regarding suit land and the rate per Killa was fixed at Rs. 85,000/-. This finding of fact cannot be disturbed in the Regular Second Appeal. No substantial question of law in involved.
Hence, the Regular Second Appeal is dismissed.