Punjab-Haryana High Court
Kishan Chand vs Sita Ram And Ors. on 10 August, 2004
Equivalent citations: AIR2005P&H156, AIR 2005 PUNJAB AND HARYANA 156, (2005) 1 RECCIVR 460
JUDGMENT M.M. Kumar, J.
1. A close relationship of the parties is no guarantee of cordiality between human beings. The aforesaid message is loudly conveyed by this appeal filed by defendant under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the judgment and decree dated 15-1-1991 passed by the learned Additional District Judge, Rewari. He has reversed the findings recorded by the learned Civil Judge in his judgment and decree dated 28-2-1989. The defendant-appellant has also challenged the findings of facts. The following questions of law have arisen for determination in this appeal; (i) could the defendant-appellant enter into an agreement to sell dated 30-9-1966 in respect of the suit property with plaintiff-respondent No. 1 de spite the fact that he was not then its owner; (ii) What is the legal consequence of delivery of possession of the property to plaintiff-respondent No. 1; (iii) whether the agreement to sell dated 30-9-1966 was validly cancelled on 31-12-1974 and the sale deed executed in favour of defendant-respondent Nos. 2, 3 and one Dr. Ramjas (Dr. Ramjas is now represented by his legal representatives defendant-respondents 4 to 11).
2. It would be necessary to make a brief reference to the facts. Plaintiff-respondent No. 1 filed Civil Suit No. 734 of 1981 on 12-3-1981 against the defendant-appellant as well as defendant-respondent Nos. 2, 3 and one Dr. Ramjas for possession of the suit property viz. two storeyed house bearing Municipal No. 2066 to 2072 and 1908-1909 situated at Gokal Bazar, Rewari by seeking specific performance of agreement to sell dated 30-9-1966. According to the averments made in the suit, plaintiff-respondent No. 1 had paid a sum of Rs. 55.000/- to the defendant-appellant in consideration of sale of two storied house situated in Gokal Bazar, Rewari as per the municipal numbers given in the plaint along with all the rights appurtenant thereto. The property, which was subject-matter of agreement to sell, was purchased by the defendant-appellant from the Rehabilitation Department in an open auction in the year 1957. However, when the agreement to sell dated 30-9-1966 was executed, the sale certificate was yet to be issued which was eventually issued on 29-3-1978, The details of the sale consideration of Rs. 55.000/- paid to the defendant-appellant has also been given showing as to how the aforementioned amount was to be utilised by the defendant-appellant :- (a) Rs. 23,500/- was to be paid by the defendant-appellant to Lala Sri Ram son of Durga Parsad Mahajan resident of Rewari; (b) Rs. 11,000/- was to be paid to Daulat Ram son of Parma Nand resident of Rewari as security, The amount was remitted vide receipt dated 17-7-1978 to Aruna Devi daughter of Daulat Ram and Sham Sunder, adopted son of Daulat Ram; (c) An amount of Rs. 15,644.25/- was paid to Shiv Sahai son of Tej Ram vide receipt dated 6-2-1967 and; (d) a sum of Rs. 4,500/- was paid In cash to defendant-appellant which was the balance amount. It was further alleged that the defendant-appellant. In part performance of the agreement to sell, delivered the possession of two shops bearing Municipal Nos. 2067 and 2072 to plaintiff-respondent No. 1 with the right to receive the rent of the remaining shops. It was also been claimed by plaintiff-respondent No. 1 that he has been paying the house tax. When the defendant-appellant failed to execute the sale deed despite issuance of sale certificate on 26-9-1978, plaintiff-respondent No. 1 issued a legal notice dated 7-3-1981 through his counsel to him alleging that despite receiving the entire sale consideration, he has failed to perform his part of the contract. It was further alleged that Shop No. 2071 was sold to Subhash Chander son of Hukam Chand (defendant-respondent 2) by a registered sale deed dated 5-3-1981 and another shop bearing No. 2072 along with all rights appurtenant in respect of Shop No, 2072 was sold to Anand Kumar, minor son of Hukam Chand through Hukam Chand (defendant-respondent 3). It was further alleged that Shop No. 2070 was sold to Dr. Ramjas after filing of suit. Dr. Ramjas is represented by his LRs, defendant- respondent Nos. 4 to 11. It was further alleged that Dr. Ramjas purchased Shop No. 2070 from the defendant-appellant despite the fact that an application was made before the Sub Registrar with a prayer to restrain defendant-appellant from execution of the sale deed. Even a telegram was sent to the Registrar. The telegram was duly received by the Registrar before the execution of the sale deed.
3. It is appropriate to mention that the parties are closely related. Sita Ram, plaintiff-respondent No. 1, is brother-in-law (wife's sister's husband) of Dharam Chand and Daulat Ram. Defendant-appellant, Kishan Chand is real brother of Dharam Chand. Sita Ram plaintiff-respondent 1 was issueless and had adopted son and daughter of Daulat Ram.
4. In the written statement filed by the defendant-appellant, the stand taken was that agreement to sell dated 30-9-1966 (Ex. P.W. 4/1) was not legally enforceable because he was not the owner of the suit property on the date of its execution. He pleaded that the suit was time barred and plaintiff-respondent No. 1 was estopped by his act and conduct because effort was required to be made for issuance of sale certificate by the Mukhtiar of plaintiff-respondent No. 1, Daulat. Ram. Daulat Ram expired in the year 1973 and on the death of Daulat Ram, an amount of Rs. 54,000/- was demanded back by plaintiff-respondent No. 1 which was paid back on 31-12-1974 in the presence of the witnesses and endorsement Ex. DW. 3/3 dated 31-12-1974 is alleged to have been made by one Chetan Prakash, over leaf of agreement to sell in the presence of respectables. The allegations concerning part performance were denied by delivery of possession of any shop. It was further alleged that no rent was ever received by plaintiff-respondent No. 1. The fact of sale of Shop Nos. 2071, 2072 and 2070 having been sold to defendant respondent Nos. 2 and 3 as well as the predecessor-in-interest of respondent Nos. 4 to 11, was however admitted.
5. Defendant-respondent Nos. 2 and 3 pleaded ignorance of any agreement to sell elated 30-9-1966. They asserted that they were bona fide purchasers in good faith for value and without notice. They denied the delivery of possession of Shop Nos. 2067 and 2072 to plain tiff-respondent No. 1.
6. Dr. Ramjas, now represented by respondent Nos. 4 to 11, was impleaded, who filed his written statement where he has taken the stand similar to the one taken by defendant-respondent Nos. 2 and 3. However, later on he did not appear and was proceeded ex parte.
7. The trial Court clubbed various issues and dismissed the suit of plaintiff-respondent No. 1 holding that agreement to sell dated 30-9-1966, Ex. PW. 4/1 was cancelled by means of Endorsement Ex. D.W. 3/3 dated 31-12-1974. It has further been concluded that no specific performance could be ordered after a lapse of 22 years of the agreement to sell. It was however held in para 17 of the judgment that the defendant-appellant was competent to enter into an agreement to sell on 30-9-1966. No firm finding was recorded with regard to delivery of possession of two shops to the plaintiff respondent No. 1 bearing Nos. 2067 and 2072. The issue with regard to limitation was not pressed by the defendant-appellant and defendant-respondent Nos. 2 and 3 as well as Dr. Ramjas (represented by his LRs defendant-respondent Nos. 4 to 11) who were held to be bona fide purchasers.
8. On appeal filed by plaintiff-respondent No. 1, the learned Additional District Judge reversed the findings of the Civil Judge by holding that the defendant-appellant was fully competent to enter into agreement to sell on 30-9-1966 and the same was enforceable. The reasoning adopted by the learned Additional District Judge is that the sale certificate issued to the defendant-appellant on 29-3-1978, Ex. PX, specifically mentioned that the defendant-appellant has become owner of the suit property with effect from 2-5-1964. It has also been found that there was nothing vague in the agreement of sale dated 30-9-1966 which may cause any legal impediment in its enforcement. The learned Additional District Judge also noticed that in any case, a defect in the title of a vendor, cannot be pleaded by him and on that basis, an agreement to sell cannot become unenforceable.
9. On the issue of endorsement, relating to cancellation dated 31-12-1974 Ex. DW. 3/3 of the agreement dated 30-9-1966, the learned Additional District Judge took the view that there was no cancellation. Various reasons have been recorded to discard the Enforcement dated 31-12-1974, Ex. D.W. 3/3 made on the back page of the agreement to sell, which are as under :-
(A) The agreement to sell dated 30-9-1966 is a registered document and endorsement dated 31-12-1974, Ex. D.W. 3/3, was never got registered as is admitted by the witnesses examined by the defendant-appellant;
(B) The Appellate Court has made reference to various acts of plaintiff-respondent No. 1 which are akin to the acts which would be performed only by an owner of the property. There was no reason for plaintiff-respondent No. 1 to continue in possession of two shops and a Chobara if the agreement to sell was cancelled on 31-12-1974. The recitals in the sale deed in Ex. DW. 9/A, Ex. DW. 9/C Ex. PZ/3 have been taken into consideration to show that neither the possession was delivered to the vendees nor it was recorded that the possession was with the defendant-appellant. Referring to recital in Ex. DW. 9/A, the learned Additional District Judge quotes that the vendee was. . . . ... to recover possession of the sold property on his own. Similarly in the other sale deed Ex. DW. 9/C, the recital was that the right to recover possession has been given to the vendee. He was also not required to pay property tax to the Municipal Committee;
(C) Reliance has been placed on Ex. P/1 to Ex. P/22 which are the receipts of the payment of Teh Bazari from the year 1977 to 1981 in respect of shop bearing No. 2072.
(D) Ex. P/23 to Ex. P/26 are the bills and receipts of payment of house tax by plaintiff-respondent No. 1 in respect of the suit property. A substantive number of receipts and bills have been issued after the alleged cancellation made on 31-12-1974, Ex. PW9/13, Ex. PW9/15 to Ex. PW9/18, Ex. PA/4, Ex. PA/5, Ex. PA/10 and Ex. PA/ 12 are the notices issued by the Municipal Committee, Rewari and the Tehsildar, Rewari for recovery of house tax which pertains to the period from 1975 to 1986/1987 which again is anterior to the date of cancellation of the agreement to sell.
(E) Ex. PA/6 to Ex. PA/9 and Ex. PA/13 to Ex. PA/15 are the bills and the receipts regarding the house tax of later dates. Ex. P/55 is the notice of assessment of the house lax dated 16-4-1979 and the notice was issued to plaintiff-respondent No. 1 who filed objection petition. Ex. P/71 and Ex. P/72 are the orders of the Administrator, Municipal Committee, Rewari on the objection petition filed by plaintiff-respondent No. 1. The order of the Administrator was challenged before the Deputy Commissioner, Rewari by plaintiff-respondent No. 1 and the order has been placed on record as Ex. PW. 9/12;
(F) The defendant-appellant also produced the house tax bills and receipts in respect of shop Nos. 2071 and 2072, Ex. D12/1 to Ex. D12/12. He has also brought on record copies of house tax assessment register for the years 1982-83 to 1986-87 in respect of Shop No. 2071, Ex. D12/13. However, the aforementioned house tax bills and receipts have been discarded by the learned Appellate Court on the ground that they are in respect of the period of pendency of the suit. No notice before making any changes in the municipal record was given to plaintiff-respondent No. 1 and defendant-appellant was admittedly a Municipal Commissioner;
(G) On the visual examination by the Court, it was found that the signature of plaintiff-respondent No. 1 on Endorsement dated 31-12-1974, Ex. DW. 3/3, did not tally with his admitted signatures and the evidence of the expert was discarded. The suit was held to be within time although the defendant-appellant had not pressed this issue. The reasons given are that according to the stipulation made in agreement of sale dated 30-9-1966, sale deed was to be executed after obtaining sale certificate from the Competent Authority which was obtained on 29-3-1978 and the suit was filed within three years on 12-3-1981
10. On the other issue, whether defendant-respondent Nos. 2 to 11 were the bona fide purchasers, the Appellate Court held that they had miserably failed to discharge the onus to prove that they had no notice of agreement of sale dated 30-9-1966. The shops purchased by them are in the same bazar where the shop of plain tiff-respondent No. 1 is located and the shop purchased by Dr. Ramjas, now represented by his LRs, was located in the same building where the shop of plaintiff-respondent No. 1 is located. Even no enquiries are alleged to have been made by defendant-respondents Nos. 2 and 3 and Dr. Ramjas with regard to clear title of the shops before purchasing them. The aforementioned factum is amply proved from the recital of sale deeds Ex. D.W. 9/A. Ex. DW9/ C and Ex. PZ/3. The first two sale deeds have been executed on 5-3-1981 and the last sale deed is dated 12-3-1981. There is undue haste shown by the defendant-appellant in execution of the sale deed in favour of the vendees, defendant-respondent Nos. 2 and 3 and Dr. Ramjas, who is represented by his LRs.
11. Mr. Jaswant Jain, learned counsel for the defendant-appellant has argued that plaintiff-respondent No. 1 is estopped from filing the present suit by virtue of cancellation of agreement to sell dated 31-12-1974 vide Endorsement Ex. D.W. 3/3. According to the learned counsel, the findings recorded by the learned Additional District Judge are not sustainable as the cumulative effect of the statement made by Chetan Parsad, scribe of the endorsement Ex. DW. 3/3 and attesting witnesses, Mohar Singh DW-4 and Amir Chand DW-6 clearly show that there was cancellation and an amount of Rs. 54,000/- was duly received by plaintiff-respondent No. 1. The learned counsel has further argued that the aforementioned statements made by the witnesses have been further supported by the expert evidence of handwriting and finger prints expert Shri A. S. Kapoor who has categorically stated that the signatures on the endorsement Ex. D.W. 3/3 is that of plaintiff-respondent No. 1. He has drawn my attention to the endorsement Ex. DW3/3 at page 852 of the record and has argued that in the presence of overwhelming evidence produced by the defendant-appellant, it must be concluded that the agreement to sell dated 30-9-1966 stood cancelled and the sale deeds executed by the defendant-appellant in favour of defendant-respondent Nos. 2 and 3 alongwith Dr. Ramjas have to be held valid in law. The learned counsel has also maintained that the agreement to sell dated 30-9-1966 has not been produced in original by plaintiff-respondent No. 1 although a stand was taken in the amended plaint that the original was lost in 1978 and an FIR was lodged to that effect on 13-6-1978. According to the learned counsel, there is inherent contradiction because a certified copy of agreement to sell dated 27-4-1978 has been placed on record of the suit and, therefore, a presumption under Section 114(i) of the Indian Evidence Act, 1872 should be raised against plaintiff-respondent No. 1 to the effect that the obligation under the agreement to sell stood discharged as the original agreement to sell has been produced on record by the defendant-appellant. According to the learned counsel, the sale certificate Ex. PX was Issued on 29-3-1978 and plaintiff-respondent No. 1 obtained a certified copy of the registered agreement Ex. PW4/1 on 30-9-1966. He has drawn my attention to grounds Nos. 5 and 6 of his memorandum of appeal in this regard. The learned counsel has also argued that in any case the view taken by the trial Court deserves to be restored because after such a long period of more than 35 years, the Court should not order specific performance of the agreement to sell and the discretion in accordance with Section 20, 16(c) of the Specific Relief Act, 1963 should be exercised in favour of the defendant-appellant. He has placed reliance on the judgments of the Supreme Court in the cases of K.S. Vidyanand v. Vairavan 1997 (3) SCC 1 : (AIR 1997 SC 1751), Phool Chand v. Smt. Kaushalya Devi, 1997 (2) PLJ 330; Sohan Lal v. Shanti Devi, 1991 PLJ 518 and Raj Singh v. Smt. Gejo, 1988 (2) PLR 42.
12. Mr. R. K. Joshi, learned counsel for plaintiff-respondent No. 1 has argued that plaintiff-respondent No. 1 and the defendant-appellant are close relations. Defendant-appellant, Kishan Chand is brother of one Dharam Chand, Sita Ram, plain tiff-respondent No. 1 is brother-in-law of Dharam Chand and Daulat Ram. He has further pointed out that Sita Ram was issueless and adopted the son and daughter of Daulat Ram and the present defendant-appellant is the attorney of son and daughter of Daulat Ram. According to the learned counsel, 23 kanals of land belonging to Dharam Chand was mortgaged with Sita Ram, and Dharam Chand had also borrowed a sum of Rs. 11,000/- from Daulat Ram and a sum of Rs. 15,644.25/- from Shiv Sahai son of Tej Ram. An amount of Rs. 55,000/- was paid to the defendant-appellant as he had purchased the property which is subject-matter of agreement to sell dated 30-9-1966 in 1955. Daulat Ram was attorney of Kishan Chand as is evident from the recital of the agreement to sell dated 30-9-1966, Ex. P.W. 4/1. It is also evident from the agreement to sell that shops bearing Nos. 2066 to 2072 and House Nos. 1908 and 1909 were purchased by the defendant-appellant. The learned counsel has maintained that the delivery of possession of the property and the right to collect rent was also given to the plaintiff-respondent. The learned counsel has urged that once the part performance of the agreement to sell is proved from the recital of the agreement itself then Section 53A of the Transfer of Property Act, 1882 is attracted and the plaintiff-respondent has become proprietor of the property because of the steps necessary for becoming owner were complete. The only document of sale deed remained to be executed. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Jit Kumar v. Girdharilal, 2003 (4) ICC 501 : (2003 AIHC 4416).
13. The learned counsel has then submitted that it is unbelievable that any sane person would cancel an agreement concerning immovable property, a number of years after its execution specially when he was in its possession. The learned counsel has further argued that there is no explanation of continuous possession of the plaintiff-respondent after cancellation on 31-12-1974. He has been paying municipal taxes till today. The learned counsel has also stressed that Dharam Chand, the brother of Kishan Chand has failed to take the witness stand which is a pointer to the fact that the case of the defendant-appellant has no leg to stand. The learned counsel has submitted that once the opinion of the expert with regard to specimen signatures is opposed to each other, then, the Court can form its own opinion as has been held by the Allahabad High Court in the case of Smt. Rashidan v. Amar Singh, (1997) 2 Civil CC 533. The learned counsel has also emphasised that the sale certificate has been produced by the plaintiff-respondent. According to the learned counsel, the agreement to sell might have fallen into the hands of the defendant-appellant on account of proximity between the parties. He has prayed that appeal is liable to be dismissed as no question of law has been raised. He has also pointed out that RSA No. 1162 of 1991 filed by defendant-respondent Nos. 2 and 3 was dismissed as withdrawn which shows that the judgment of the learned Additional District Judge has been upheld.
14. Having heard the learned counsel at a considerable length, I am of the view that this appeal is devoid of merit and is liable to be dismissed. The agreement to sell dated 30-9-1966 has to be accepted as a valid agreement which has been executed in accordance with law. It is well settled that once an auction purchaser is delivered the possession of the auctioned property after the sale is confirmed, the issuance of sale certificate is merely a ministerial act. the property belonging to the Rehabilitation Department is transferred under the provision of Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for brevity, '1954 Act'). The procedure for sale of property belonging to the rehabilitation department is laid down in Chapter 14 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 (for brevity, "1955 Rules'). In the rules, it is not clear as to when the auction purchaser is to acquire the title. The transfer of title to an auction purchaser after confirmation of auction has not been laid down in the rules. However, the time when the transfer comes into effect is clearly laid down in Section 65 of the Code. It is well settled that the title cannot be kept in abeyance till the issuance of a sale certificate and it would deem to have passed on to the auction purchaser on the confirmation of sale. The aforementioned principle was laid down by the Supreme Court in the case of Bishan Pal v. Mothu Ram, AIR 1965 SC 1994. After bestowing due consideration on 1954 Act and 1955 rules framed thereunder, their Lordships of the Supreme Court observed as under :-
"It seems to us that the matter must be considered on general principles. In this case the highest bid was of the respondent and he paid the full price before the ale in his favour was confirmed. The sale certificate, though issued later, mentioned the date of the confirmation of the sale in his favour. The tenant was asked to attorn to the purchaser from the date of confirmation of sale and thus possession was also delivered on that day. Title, therefore, was not in abeyance till the certificate was issued but passed on the confirmation of sale. The intention behind the rules appears to be that title shall pass when the full price is realised and this is now clear from the new form of the certificate reproduced in Jaimal's case, 66 Pun LR 99 : (AIR 1964 Punj 9). No doubt till the price is paid in full there is no claim to the property but it seems somewhat strange that a person who has paid the price in full and in whose favour the sale is also confirmed and who is placed in possession should only acquire title to the property from the date on which a certificate is issued to him. There may conceivably be a great deal of time spent before the certificate is granted. In this case the tenant was told to attorn from October 3, 1956 because nothing remained to be done except the ministerial acts of issuing the certificate and getting it registered. Therefore, so far title was concerned, it must be deemed to have passed and the certificate must relate back to the date when the sale became absolute. The tenant himself paid rent for 2 days to the Custodian and deposited rent for the use of the new landlord from October 3, 1956. His defence originally was that he had tendered the rent from October 3, 1956 and even sent it by money order but the landlord refused to receive it. He thus acknowledged the new landlord and attorned to him from October 3, 1956. It was only when the decision in the Bombay Salt and Chemical Industries case, AIR 1958 SC 289, was given that he changed his stand. That case, however, did not decide the precise, point on which he rested his new defence. The rulings on which he relies also erroneously accepted the decision of this Court in the Bombay Salt and Chemical Industries's case, AIR 1958 SC 289, to have decided the point when title commences. As has been rightly pointed out in Jaimal's case, 66 Pun LR 99 : (AIR 1964, Punj 99), the point was at large. In our judgment, the landlord in the present case could maintain the proceedings for ejectment. We agree generally with the observations of Tekchand, J. in Roshanlal Goswami v. Gobind Ram, 65 Pun LR 852 : (AIR 1963 Punj 532), that the landlord's right to bring a suit for ejectment need not necesarily depend on the issuance of the certificate. In this case the landlord had paid the full price, his bid was approved and he had received a certificate mentioning the date of confirmation. In our judgment, he obtained title on the date of confirmation of the sale and could demand rent from that date as indeed he was informed and he himself understood to be the true state of affairs."
15. The view taken by this Court in Roshan Lal Goswami v. Gobind Ram, AIR 1963 Punj 532 has been approved by their Lordships. In view of the above, there is no doubt left that defendant-appellant was competent and entitled to execute the agreement to sell. Therefore, the first question has to be answered in the affirmative.
16. The learned Additional District Judge has recorded various reasons to conclude that no cancellation of the agreement to sell ever took place and the story spinned by the defendant-appellant is devoid of merit. The learned Additional District Judge has listed various acts of the plaintiff-respondent showing that he acted like a true owner before the date of the cancellation on 31-12-1974 and thereafter. Once the acts of a person are substantively against the proprietary rights of another person to his knowledge, then, only one inference would follow, namely that the proprietary right stood transferred. The overwhelming evidence in the form of bills and receipts of house tax and the litigation filed by the plaintiff-respondent 1 as is obvious from the preceding paras of this judgment, would show that the plaintiff-respondent would have never signed the endorsement, Ex. DW3/3 dated 31-12-1974 by concealing the agreement to sell. A further indication with regard to possession of the plaintiff-respondent is available in the recitals of the sale deeds Ex. DW9/A, Ex.DW9/C and Ex.PZ/3. It has been mentioned in the aforementioned sale deeds that the vendees were to recover possession themselves. It implies that neither the so-called vendor, defendant-appellant was in possession nor the possession was delivered to vendees, namely, defendant-respondent Nos. 2 and 3 or Dr. Ramjas. It thus becomes evident that the possession was with someone else i.e. the plaintiff-respondent. Moreover, the learned Additional District Judge by a visual examination has found that the signatures on the endorsement, cancellation of agreement to sell did not tally with the specimen signatures of the plaintiff-respondent. Therefore, it cannot be concluded that the possession of the suit property was not. with the plaintiff-respondent or that the agreement to sell was cancelled. Both the questions which have arisen for consideration in this appeal are accordingly answered.
17. I have not been able to persuade myself to accept argument of the learned counsel for the defendant-appellant attacking findings of fact concerning cancellation of agreement to sell dated 30-9-1966 by the endorsement Ex. DW3/3 dated 31-12-1974. There is overwhelming evidence on record to prove that endorsement Ex. DW3/3 dated 31-12-1974 cannot be accepted as genuine writing. In this regard reasons '(A) to (G)' as extracted in the preceding paras are sufficient to conclude that the findings are based on cogent evidence and interference by this Court under Section 100 of the Code is not warranted. It is well settled that this Court while exercising power under Section 100 of the Code would not undertake the task of re-appreciation of evidence and record findings different than those recorded by the learned Appellate Court merely because another view is a possible view. In this regard reliance could be placed on the judgments of the Supreme Court in the cases of Panchugopal Barua v. Umesh Chandru Goswami, (1997) 4 SCC 713; Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438 : (AIR 1997 SC 2517) and Ram Kumar Aggarwal v. Thawar Dass, (1999) 7 SCC 303 : (AIR 1999 SC 3248).
18. The other argument that production of agreement to sell dated 30-9-1966 by the defendant-appellant must lead to an inference under Section 114(1) of 1872 Act can also not be accepted because there is ample explanation against the document dated 30-9-1966. It has been found that the parties are closely related and custody of document would not be material factor to conclude that a presumption in favour of defendant-appellant could be raised. Moreover various acts of plaintiff-respondent 1 preceding and succeeding the date of endorsement Ex. DW3/3 dated 31-12-1974, which is the basis of claim that agreement to sell dated 30-9-1966 stood cancelled, have been proved showing that he acted as owner of the suit property (see reasons (A) to (G) (supra)). Therefore, any presumption which could be raised on account of production original agreement dated 30-9-1966 from the custody of the defendant-appellant stood rebutted.
19. The argument raised that opinion of the handwriting expert produced by the defendant-appellant should have been accepted would also not require any detailed consideration because there was conflict between the two experts produced by both the sides. It is well settled that opinion of an expert cannot be more reliable than the statement of a witness of fact and a finding cannot be based on sole testimony of an expert opinion. The conclusions based on a comparison of handwriting would require independent corroboration as has been held by the Supreme Court in Sri Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat, AIR 1954 SC 316. In the present case apart from the opinion formed by the Court itself, there is otherwise ample evidence to support the conclusion that the endorsement Ex. DW3/3 dated 31-12-1974 is not genuine which according to the expert produced by the defendant-appellant might be genuine. The view taken by the Allahabad High Court in the case of Smt. Rashidan (supra) in any case lays down that when there is conflict of opinion between the experts, then the Court is competent to form its own opinion with regard to signatures on a document. Therefore, I do not find any merit in the argument raised by learned counsel for the defendant-appellant.
20. Another argument raised by Mr. Jaswant Jain, learned counsel for the defendant-appellant deserves to be considered. It has been pointed out that on account of the nature of relief claimed for specific performance of agreement dated 30-9-1966, the discretion in favour of plaintiff-respondent 1 should not be exercised. The learned counsel has placed reliance oh a judgment of the Supreme Court in the case of K. S. Vidyanadam (supra) (AIR 1997 SC 1751) and other judgments of this Court. The Supreme Court in K. S. Vidyanadam's case (supra) has extracted various factors which have to be kept in view before a decree for specific performance is passed in favour of a plaintiff. It has been held that in the case of agreement of sale relating to immovable property time is not essence of the contract unless specifically provided to that effect and the period of limitation for filing the suit is three years. It has been further held that on the basis of these two circumstances alone, a suit for specific performance of the agreement which does not provide specifically that time is essence of the contract should be decreed. To the same effect are the judgments of this Court on which reliance has been placed by the learned counsel. When the facts of the present case are examined, it becomes obvious that the principles laid down in K. S. Vidyanadam's case (AIR 1997 SC 1751) (supra) are not applicable because in the present case the agreement to sell although was executed on 30-9-1966 but the whole payment was made as has been proved by the plaintiff-respondent 1. In part performance of the agreement to sell, the plain- tiff-respondent 1 has been given possession of the shops as well as the right to collect the rent. There is overwhelming evidence on record showing various acts performed by plaintiff-respondent 1 showing that he acted as if he was the true owner of the property which is subject-matter of the suit. Various circumstances have been mentioned in paragraphs (A) to (G) which bear the testimony that the plaintiff-respondent 1 has acted as a real owner. It may be true that there is no principle of law that once there is part performance of the agreement, there has to be decree of specific performance of such an agreement. In a given case the Court may refuse to pass a decree for specific performance of an agreement even when the element of part performance is present. Those cases are illustrated in sub-section (2) of Section 20 of 1872 (1963) Act. If the decree of specific performance gives the plaintiff an unfair advantage over the defendant or where the purpose of contract would involve some unforeseeable hardship to the defendant and no hardship to the plaintiff or render it inequitable. However, in the present case no such element is present. Therefore, I do not find any substance in the argument raised by the learned counsel.
21. In view of the above, the appeal is dismissed. However, there shall be no order as to costs.