Punjab-Haryana High Court
Surta Singh vs Mohinder Singh S/O Thakar Singh R/O ... on 19 August, 2009
Regular Second Appeal No. 200 of 2009
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Regular Second Appeal No.200 of 2009
Date of decision: 19.08.2009
Surta Singh, s/o Chanan Singh r/o village Nihala Lavera, Tehsil and District
Ferozepur.
..... Appellant.
Versus
Mohinder Singh s/o Thakar Singh r/o village Iime Wala Tehsil and District
Ferozepur.
..... Respondent.
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present:-Mr. N.S. Sodhi, Advocate
for the appellant.
----
Sham Sunder, J.
This Regular Second Appeal is directed against the judgment and decree dated 28.07.2006, rendered by the Court of Civil Judge (Senior Division), Ferozepur, vide which it decreed the suit of the plaintiff, for recovery of Rs.4.00 lacs with interest and declined the relief of specific Regular Second Appeal No. 200 of 2009 -2- performance and the judgment and decree dated 01.12.2007, rendered by the Court of Additional District Judge, Ferozepur, vide which it dismissed the appeal.
2. The facts, in brief, are that Surta Singh, defendant (now appellant) executed an agreement to sell dated 11.11.2002 in respect of the land in dispute, in favour of the plaintiff (now respondent) at the rate of Rs.15,000/- per acre and received a sum of Rs.4.00 lacs, as earnest money. The sale deed was to be executed and got registered on or before 29.03.2004. It was stated that the defendant, failed to execute and get registered sale deed. It was further stated that the defendant was asked so many times to execute and get registered the sale deed in favour of the plaintiff, but to no avail. On his final refusal, left with no alternative, a suit for specific performance and, in the alternative, for recovery was filed.
3. The defendant, put in appearance, and contested the suit, by way of filing written statement. He denied that he executed the agreement to sell, referred to above, in favour of the plaintiff, in respect of the land in dispute. He also denied that he received any earnest money, from the plaintiff. It was stated by him that the alleged Regular Second Appeal No. 200 of 2009 -3- agreement to sell was a forged and fabricated document. It was further stated by him that the suit was a counter blast to a suit for rendition of account, filed against the firm of the son of the plaintiff M/s Kuldeep Singh Surjit Singh, Commission Agents, Mallanwala. The remaining averments, contained in the plaint, were denied, being wrong.
4. From the pleadings of the parties, the following issues, were framed, by the trial Court:-
"1- Whether the defendant had executed the agreement to sell dated 11.11.2002 in favour of the plaintiff as alleged ?OPP 2- Whether the plaintiff has been ready and willing to perform his part of the contract, as alleged? OPP 3- Whether the plaintiff is entitled for possession by way of specific performance of agreement in question ?OPP 4- Whether the plaintiff is entitled for alternative relief of recovery of Rs.6.00 lacs alongwith interest as alleged ?OPP 5- Whether the suit of the plaintiff is not maintainable as alleged ?
OPD
6- Whether the suit is bad for non-joinder of necessary parties as
alleged ?OPD
7- Relief."
Regular Second Appeal No. 200 of 2009
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5. The parties led evidence, in support of their case. The trial Court, after hearing the Counsel for the parties, and, on going through the evidence and record of the case, decreed the suit for recovery and declined the relief of specific performance.
6. Feeling aggrieved, against the judgment and decree dated 28.07.2006, passed by the trial Court, an appeal was preferred by the appellant/defendant, which was dismissed by the Court of Additional District Judge, Ferozepur, vide its judgment and decree dated 01.12.2007.
7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellant/defendant.
8. I have heard the Counsel for the appellant, and have gone through and perused the documents, on record, carefully.
9. The following substantial questions of law, arise, in this appeal, for the determination of this Court:-
"1. Whether the Courts below mis-read and mis- appreciated the evidence and recorded perverse finding to the effect that an agreement to sell, referred to above, was executed by the defendant(now appellant) in favour of the plaintiff (now respondent)?
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2. Whether the Courts below mis-read and mis- appreciated the evidence and recorded perverse finding that the agreement to sell was not the result of fraud?"
10. The Counsel for the appellant submitted that the Courts below recorded perverse finding regarding the execution of the agreement to sell, in favour of the plaintiff. He further submitted that the price of the land, in dispute for which it was allegedly agreed to be sold, was meagre. He further submitted that the prices of the land at that time were very high. He further submitted that, in fact, the agreement to sell was a forged and fabricated document, but the Courts below, did not take into consideration this fact, in its proper perspective, resulting into decreeing the suit.
11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the appellant, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the Regular Second Appeal No. 200 of 2009 -6- principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous, as the legislative intention, was very clear that the legislature never wanted second appeal to become a "third trial on facts" or "one more dice in the gamble." It was further held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The principal question, which fell for consideration before the Courts below was as to whether a legal and valid agreement to sell, referred to above, was executed by the defendant(now appellant) in favour of the plaintiff(now respondent), in respect of the land, in dispute. The execution of the agreement to sell, (Ex.P-1) was proved by Rajesh Kumar, the scribe thereof and Mohinder Singh, plaintiff,(PW-1). Surta Singh, defendant, when appeared as DW-1, no doubt, denied that he executed the agreement to sell and the same was a forged and fabricated document. However, his bald statement, in the face of the cogent evidence, produced by the plaintiff to prove the execution, legality and validity, of the agreement to sell , was of no consequence. So the Courts below, were right in coming Regular Second Appeal No. 200 of 2009 -7- to the conclusion, that a legal and valid agreement to sell, was executed in favour of the plaintiff(now respondent), by the defendant (now appellant), in respect of the land, in dispute.
12. According to the defendant, he was having dealings with the firm of the son of the plaintiff, namely M/s Kuldip Singh Surjit Singh, Commission Agents, Mallan Wala Khas, and he might have obtained his signatures on blank papers and lateron converted the same into an agreement to sell. Such a general and vague statement, made by the defendant (now appellant), did not go to prove that he did not execute the agreement to sell. The mere fact that the son of the plaintiff was one of the partners of the firm, with which, the defendant was having dealings, did not mean that the signatures of the defendant were obtained on a blank paper. The scribe had no illwill or enmity against the defendant (now appellant) to depose falsely that the agreement to sell, Ex.P-1, was executed by him (defendant) in favour of the plaintiff, in respect of the land, in dispute. The defendant did not deny his signatures on the agreement to sell. The particulars of fraud were required to be incorporated, in the plaint, and proved as in the criminal case. The bald statement of the defendant to the effect that fraud was committed upon him, did not, in any Regular Second Appeal No. 200 of 2009 -8- way, go to prove that the transaction was a fraudulent one. The Courts below, were, thus, right in holding that the agreement to sell was not the result of fraud.
13. No doubt, the land, in dispute, was under
mortgage with the bank, as is evident from Jamabandi,(Ex.P5). It was under these circumstances that the Courts below instead of granting the relief of specific performance, granted the relief of recovery of earnest money with interest. The mere fact that the property, in dispute was mortgaged, did not mean that the defendant was debarred from executing the agreement to sell, in favour of the plaintiff.
14. No cogent evidence was produced by the defendant to prove that the price of the land, in dispute, at the time of execution of the agreement to sell, was much more than, what was recorded therein. In the absence of production of such evidence it, could not be said that the agreement was executed for a meagre amount. Once the seller agreed to sell the property, in favour of the vendee, the mere fact that he agreed to sell the same, at a price lower than the one prevailing in the market, did not make the agreement, in any way, an invalid document.
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15. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law on the point, do not suffer from any illegality or perversity, warranting the interference of this Court, and are liable to be upheld.The submission of the Counsel for the appellant, being without merit,must fail, and the same stands rejected. The substantial questions of law, depicted above, are answered against the appellant.
16. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs.
( Sham Sunder )
August 19, 2009 Judge
dinesh