Punjab-Haryana High Court
Deep Singh And Ors. vs Amrik Singh And Anr. on 3 March, 2004
Equivalent citations: (2004)137PLR687
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The defendants are in second appeal against the judgment and decree passed by the first appellate court whereby the suit for possession by way of specific performance of agreement to sell dated 8.7.1984 was decreed in appeal.
2. Defendant No. 1 Surjan Singh was owner of land measuring 10 kanals 16 marlas. As per the plaintiffs he agreed to sell the land in favour of the plaintiffs on 8.7.1984 and received Rs. 10,000/- as earnest money. The land was agreed to be sold at the rate of Rs. 20,000/- per acre. At the time of agreement the land was under mortgage with possession with Mohinder Singh son of Teja Singh i.e. father of defendants No. 2 to 4 for a consideration of Rs. 10,000/-. Said mortgage amount was to be paid by the plaintiffs at the time of execution of the sale deed. Sale deed was to be executed and registered on or before 20.12.1984 and the balance sale consideration was to be paid before the Sub Registrar. The plaintiffs claimed that they were always ready and willing to get the sale deed executed in terms of the agreement but defendant No. 1 sold the land in favour of defendants No. 2 to 4. It has further been pointed out that the plaintiffs earlier filed a suit for permanent injunction against the defendants restraining them from alienating the land.
3. In the written statement filed on behalf of defendant No. 1, it was stated that he has sold the land to defendants No. 2 to 4 on the basis of agreement dated 26.3.1984. He denied having executed the agreement in favour of the plaintiffs as well as the receipt of any advance money. It was alleged that the agreement, if any, is an act of fraud and result of misrepresentation.
4. On the pleadings of the parties the following issues were framed:
1. Whether defendant No. 1 entered into an agreement to sell the land in dispute on 8.7.1984 with the plaintiff? OPP
2. Whether the plaintiff was ready and willing and still ready and willing to perform his part of the agreement? OPP
3. Whether defendants No. 2 to 4 have purchased the suit land on the basis of agreement dated 26.4.1984 from defendant No. 1. If so, its effect? OPD
4. Whether the agreement dated 8.7.1984 was an act of fraud and was obtained by putting defendant No. 1 under the influence of liquor? OPD
5. Whether defendants No. 2 to 4 are bona fide purchasers of the suit land and without notice? OPD
6. Relief.
5. Plaintiff examined PW1 Tarsem Masih, Deed Writer, PW2 Balwinder Singh and Rup Singh PW3 the attesting witness and himself stepped into the witness box as PW4. On the other hand, defendants examined Wassan Singh as DW1, Kundan Singh as DW2, Om Parkash Kushal, Advocate as DW3 and Kashmir Singh one of the vendor's appeared as DW4.
6. The trial Court found that the agreement to sell dated 8.7.1984 is proved to be executed by Surjan Singh from the testimony of Deed Writer and attesting witness. It was found that Surjan Singh defendant No. 1 has not appeared as a witness to deny the execution of the agreement. On the other hand, the first appellate Court has found that the agreement to sell dated 26.4.1984 set up by the defendant is false document and that the defendants did not act bona fidely. It was held that the document Ex.D1 was manipulated by the defendants in connivance with Om Parkash Kushal. Agreement Ex.P1 was executed by Surjan Singh in favour of the plaintiffs and thus, defendant appellants cannot be held to be bona fide purchasers.
7. As per the facts on record the sale deed in favour of the defendant-appellants is executed on 13.7.1984 for a sum of Rs. 33,750/- as against the agreement to sell in favour of the plaintiff in the sum of Rs. 35,100/-. The defendant-appellants are alleged to be the sons of mortgagee in possession. They are residents of the same village.
8. Learned counsel for the appellants has vehemently argued that defendants - appellants entered into an agreement to purchase the land on 26.4.1984 and sale deeds in pursuance of such agreement were executed on 17.7.1984 and thus, they are bona fide purchasers for value and consideration. It was also pointed out that the agreement in favour of the plaintiff is not proved to be duly executed. PW2 Balwinder Singh has deposed that the stamp paper for the purpose of agreement to sell was purchased on 7.7.1984 and the agreement was executed on the same day. However, as a matter of fact, the agreement is stated to have been executed on 8.7.1984. Thus, the statement of the witness is not that of a reliable person.
9. After hearing the learned counsel for the parties and going through the record of the case, I do not find any illegality or irregularity warranting interference in the second appeal. Defendant-appellants are the sons of the mortgagee in possession. They are the residents of the same village. Defendant Surjan Singh, owner of the land has pleaded in the written statement that the agreement in favour of the plaintiff on 8.7.1984 was got executed under the influence of liquor. However, Surjan Singh has not appeared in the witness box to support the stand taken in the written statement. The due execution of the agreement to sell is proved on the basis of the statement of the attesting witness Balwinder Singh and Rup Singh as well as the Deed Writer. The discrepancy regarding the time of execution of the agreement to sell cannot be the basis to return a finding that the agreement to sell dated 8.7.1984 was not executed by Surjan Singh defendant. The sole contradiction is not sufficient to discard the case set up the plaintiff.
10. Still further, the sale deed in favour of the appellants was executed on 17.7.1984. Suit for specific performance had been filed soon thereafter i.e. on 4.8.1984. In view of the judgment of the Hon'ble Supreme Court reported as Dr. Govind Das and Anr. v. Smt. Shanti Bai and Ors., (1972)74 P.L.R. 227, wherein it has been held that the knowledge of an agreement to sell executed in favour of one party is known to the inhabitants of the small village. Keeping in view the relationship of the defendants with the mortgagee i.e. person in possession and the fact that the defendants are the residents of a small village, presumption raised by the Supreme Court can very well be raised in the present case as well.
11. The fact that the agreement in favour of the appellants dated 26.4.1984 has been found to be false and not a bona fide document is supported by again evidence. The testimony of Om Parkash Kaushal, Advocate, who has appeared as DW3 was considered by the first appellate court to return a finding that such an agreement is manipulated document by the appellants in connivance with the said witness. The only explanation given by Surjan Singh to enter into an agreement to sell in favour of the plaintiff was that of undue influence.
12. It was for the defendants to prove that the appellants entered into an prior agreement to sell. Such stand has not been substantiated in evidence. That fact having not proved, the finding of first appellate court that the agreement dated 26.4.1984 is a manipulated document cannot be doubted.
13. Consequently, I do not find any merit in the present appeal. The same is hereby dismissed. No order as to costs.