Delhi District Court
Sh. Bharat Singh vs Sh. Harish Chander Verma on 24 October, 2016
IN THE COURT OF MS RAJRANI: ADDITIONAL DISTRICT JUDGE-09:
WEST: TIS HAZARI COURT: DELHI.
RCA DJ/60924/2016
Sh. Bharat Singh
S/o Sh. Gumani
Resident of H.No.699,
Village & Post Office Mundka
Delhi-110041. ...........Appellant
Versus
1.Sh. Harish Chander Verma
S/o Late Sh. Rama Nand
R/o 2427/182, Tri Nagar,
Delhi-110035
2.Sh. Anand Kumar Lakra
S/o Sh. Bharat Singh
R/o H. No.699,
Village & Post Office Mundka
Delhi-110041. .........Respondents
Date of institution of the present appeal: 27.07.2015
Date of reserving of orders : 24.10.2016
Date of judgment : 24.10.2016
JUDGMENT
1. Vide this judgment, I shall dispose of the present appeal under Order 96 of CPC against the judgment and decree dated 04.07.2015 passed by the Court of Ms Shama Gupta Civil Judge, Tis Hazari Court.
RCA DJ/60924/2016 Bharat Singh Vs.Harish Chander & Anr. Page No.1/122. Briefly stated the facts of the case are that the plaintiff is in possession of the suit property bearing plot no. 719 measuring 6 Biswas (300 sq. yds) out of khasra no. 1980 (old) khata no. 333 situated in the Lal Dora of Village Mundaka, Delhi since 17.11.1982 having purchased from the defendant no.-1 by virtue of an agreement to sell dated 17.11.1982 executed by the defendant no.-1 in favour of the plaintiff. The defendant no.- 2 has also appended his signatures on the same as a witness. It is further stated that the plaintiff has paid the entire consideration amount of Rs.20,000/- on the same date to the defendant no.-1 against receipt which was also witnessed by the defendant no.-2.
It is further stated that as per clause no.-6 of the agreement to sell, the defendant no.-1 assured the plaintiff that he would execute the proper sale deed qua the suit property in favour of the plaintiff or his nominee when permissible. The plaintiff approached the defendant no.-1 several times for execution of the sale deed in his favour but, the defendant no.-1 avoided the same on one pretext or other citing his ill health and adverse family circumstances. It is further stated that from the first week of May 2008, the defendant no.-1 started advancing threat to the plaintiff to forcibly dispossess the plaintiff from the suit property. The said threat by the defendants started after the plaintiff served a legal notice dated 24.04.2008 on the defendants claiming execution of sale deed qua the suit property. The defendants gave reply to the legal notice on 23.05.2008. It is further stated that cause of action further arose on 02.05.2008 when the defendants started threatening the plaintiff to vacate the suit premises and the plaintiff has filed suit for specific performance, permanent injunction and mandatory injunction.
3. The defendant nos. 1 and 2 have filed joint written statement taking preliminary objections like the suit of the plaintiff is time barred, the present RCA DJ/60924/2016 Bharat Singh Vs.Harish Chander & Anr. Page No.2/12 suit is based on an alleged unregistered agreement to sell, therefore, the same is not enforceable, the suit of the plaintiff is under valued and the suit is not maintainable. The defendants denied the possession of the plaintiff in the suit property since 17.11.1982. The defendant no.-1 further denied execution of agreement to sell dated 17.11.1982 and issue of receipt of Rs.20,000/- in favour of the plaintiff. It is alleged by the defendant no.-1 that he has agreed to sell the suit property to the father of the plaintiff on 17.11.1982 for a consideration of Rs.20,000/-, which was paid by the father of the plaintiff on the same date i.e. on 17.11.1982. It is further averred that the father of the plaintiff was a close friend of the defendant no.-1 and due to the said cordial relations, the father of the plaintiff has also got signed some blank papers, one/two written papers from the defendant no.-1. It is further stated that plaintiff might have committed theft of those blank papers signed by defendant nos. 1 and 2 and prepared forged documents by committing forgery. The defendant no.-1 also alleged that the he has handed over the possession of the suit property to the father of the plaintiff in the presence of the defendant no.-2. It is further stated that the agreement to sell as placed on record by the plaintiff is a forged document. The defendants also denied the allegations of threat of forcible dispossession as alleged by the plaintiff.
4. Replication have been filed by the plaintiff to the written statement of defendant no.-1 & 2 wherein he denied the allegations made in the written statement and reaffirmed the contents of the plaint.
5. On the basis of the pleadings, following issues were framed by Ld. Trial Court:-
i)Whether the plaintiff is entitled for decree for specific performance, as prayed for?OPP
ii)Whether plaintiff is entitled to a decree for permanent injunction, as prayed RCA DJ/60924/2016 Bharat Singh Vs.Harish Chander & Anr. Page No.3/12 for?OPP
iii)Whether suit of the plaintiff is time barred?OPD
iv)Whether the suit of the plaintiff is based on the false and fabricated documents?OPD
v)Whether the suit of the plaintiff is under valued?OPD
vi)Relief.
6. In support of his case, plaintiff has examined himself as PW-1 and relied upon documents:Site plan of the suit property Ex.PW1/A, Agreement to sell Ex.PW1/B dated 17.11.1982, Ex.PW1/C is receipt dated 17.11.1982, Ex.PW1/D is deposition of the defendant dated 26.07.2008, Ex.PW1/E is legal notice dated 24.04.2008.
7. In support of their defence, defendant has examined summoned witness from the Court of Sh. Vidya Prakash, Ld. CMM, THC, Delhi as DW1 and exhibited agreement to sell, affidavit and receipt dated 17.11.1982 as Ex. DW1/1 (colly) and defendant no. 1 got himself examined as DW2.
8. The suit of the plaintiff/respondent no.-1, has been decreed by the Court of Ms Shama Gupta Civil Judge, Tis Hazari Court vide judgment and decree dated 04.07.2015.
9. Aggrieved by the impugned judgment and decree, appellant has filed the present appeal on the ground that the Ld. Trial Court has grossly erred in appreciating the oral evidence on record with regard to the proof of the alleged agreement to sell dated 17.11.1982 and ignored the material submissions made by the appellant with respect to the evidence on record. It is further stated that the Ld. Trial Court grossly erred in coming to the conclusion that the alleged agreement dated 17.11.1982 stands proved or RCA DJ/60924/2016 Bharat Singh Vs.Harish Chander & Anr. Page No.4/12 the impugned decree is liable to be passed on the basis of the alleged agreement particularly when the alleged agreement has not been proved. It is further stated that the Ld. Trial Court absolutely ignored the settled provision of law of evidence and ignored the observation of the Apex Court that in case the signatures are admitted on the document and contents are not admitted the party who tenders such documents in evidence is bound to prove the contents of the said documents and mere admission of signature is no proof of contents of the documents. It is further stated that the Ld. Trial Court grossly erred in appreciating the conduct of the plaintiff that the plaintiff filed the present suit after about 25 or 26 years and failed to produce any witness that at any point of time the plaintiff asked the defendant to execute the Sale Deed on the basis of the alleged agreement.
10. On the other hand, respondent no. 1 filed reply to the appeal denying all the avements made in the appeal. It is stated by the respondent no. 1 that agreement to sell and receipt dated 17.11.1982 has been duly proved by the plaintiff. The appellant/defendant no. 1 has identified the original agreement dated 17.12.1982 as well as his signature thereupon vide his deposition dated 26.07.2008 Ex. PW1/D and the respondent no. 1 requested that the present appeal may be dismissed.
11. I have heard the arguments and gone through the material available on records and written submissions filed by Ld. counsels for both the parties. Ld. Counsel for appellant relied upon judgments: Dattatraya v Rangnath Gopalrao Kawathekar, AIR 1971 Supreme Court 2548 and Sait Tarajee Khimchand v Yelamarti Satyam, AIR 1971 Law Suit (SC)251 and Ld. Counsel for respondent relied upon judgment "Civil Appeal Nos.-9949-9950 of 2014, titled as Rathnavathi & Another Vs. Kavita Ganashamdas dod 29.10.2014 passed by Hon'ble Supreme Court of India.
RCA DJ/60924/2016 Bharat Singh Vs.Harish Chander & Anr. Page No.5/1212. It is submitted by Ld. Counsel for appellant that the suit filed by the plaintiff is barred by law of limitation. It is submitted that plaintiff has stated that appellant/defendant declined execution of the sale deed from date of execution of agreement to sell till the filing of the suit but plaintiff was failed to mention specific date, month and year as to how many time and as to on which particular dates the appellant/defendant refused to execute the sale deed in order to calculate the period of 3 years for the purpose of limitation of the present suit. The onus to prove the issue of limitation was upon the defendant. It has been stated by the defendant in their written statement that period of limitation of alleged execution of agreement to sell dated 17.11.1982 shall start from the date of execution of agreement to sell dated 17.11.1982.
13. It is stated by the plaintiff that the plaintiff approached the defendant no.-1 several times for execution of the sale deed in his favour but, the defendant no.-1 avoided the same on one pretext or the other citing his ill health and adverse family circumstances and the plaintiff has served a legal notice dated 24.04.2008 calling defendant to execute the sale deed and defendant vide reply dated 23.05.2008 refused to execute the same. It is further stated by plaintiff that cause of action arose on 02.05.2008 when the defendants started threatening the plaintiff to vacate the suit property. It is stated that limitation to file the suit for specific performance shall start from the date of refusal i.e. 23.05.2008 or 02.05.2008 when defendants threatened the plaintiff to vacate the suit property. Plaintiff has exhibited legal notice as Ex. PW1/E which was replied by the respondent no. 1 on 23.05.2008. It has not been contended by the defendant/appellant that prior to reply dated 23.05.2008 defendant ever denied the execution of agreement to sell dated 17.11.1982 or to refuse to execute the sale deed in favour of RCA DJ/60924/2016 Bharat Singh Vs.Harish Chander & Anr. Page No.6/12 the plaintiff. During cross examination, defendant put suggestion to the plaintiff who appeared as PW1 that "it is wrong to suggest that plaintiff met defendant no. 1 on 26.07.2008 after a gap of 30 years". It has been rightly observed by the Ld. Trial Court that though, the said suggestion of the defendant no.-1 denied by the plaintiff but the said suggestion of the defendant is taken into consideration on its face value, then as per the defendants themselves, there was no communication between the plaintiff and the defendant no.-1 for almost 30 years therefore, there is no question of refusal by the defendant no.-1 to execute the sale deed in favour of the plaintiff prior to year 2008.
14. As the issue pertains to limitation period, the provision of the Limitation Act, 1963 are attracted and require consideration. Article 54 reads as follows:-
"54. For specific performance of a Three years The date fixed for the contract performance, or, if no such date is fixed when the plaintiff has notice that performance is refused."
15. Mere reading of Article 54 of the Limitation Act would show that the prescribed period of limitation for filing a suit of specific performance of a contract is three years and the period of three years has to be calculated based on two contingencies i.e. the date fixed for performance of the contract or if no such date is fixed, the date when the plaintiffs had notice about refusal of the performance by the defendants.
16. Perusal of agreement to sell Ex. PW1/B shows that no date was fixed for the performance of the agreement to sell and it was mentioned that as RCA DJ/60924/2016 Bharat Singh Vs.Harish Chander & Anr. Page No.7/12 and when permissible appellant/defendant no.-1 shall execute a proper sale deed of suit property in favour of the respondent no. 1/plaintiff and shall get the same registered before the SR Delhi when required by respondent no. 1/plaintiff. On the facts of the present case that it does not fall in the first category of Article 54 since no date was fixed in the agreement to sell dated 17.11.1982 for its performance. In the present case defendants threatened the plaintiff to vacate the suit property on 02.05.2008 and refused to execute the sale deed on 23.05.2008 and plaintiff has filed the suit on 05.07.2008. It was observed by Hon'ble Supreme Court in "Rathnavathi & Another Vs. Kavita Ganashamdas(supra)" that:-
"49. Mere reading of Article 54 of the Limitation Act would show that if the date if fixed for performance of the agreement, then non-compliance of the agreement on the date would give a cause of action to file suit for specific performance within three years from the date so fixed. However, when no such date is fixed, limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that the defendant has refused the performance of the agreement.
50. The case at hand admittedly does not fall in the first category of Article 54 of the Limitation Act because as observed supra, no date was fixed in the agreement for its performance. The case would thus be governed by the second category viz., when plaintiff has a notice that performance of the agreement.
51. As mentioned above, it was the case of the plaintiff that she came to know on 02.01.2000 and 09.01.2000 that the owner of the suit house along with RCA DJ/60924/2016 Bharat Singh Vs.Harish Chander & Anr. Page No.8/12 the so-called intending purchaser are trying to disposses her from the suit house on the strength of their ownership over the suit house. This event was, therefore, rightly taken as starting point of refusal to perform the agreement by defendant no. 2, resulting in giving notice to defendant no. 2 by plaintiff on 06.03.2000 and then filing of suit on 31.03.2000."
In the present case also defendants threatened the plaintiff to vacate the suit property on 02.05.2008 and that is the starting point of refusal to perform the agreement to sell executed by appellant/defendant no. 1. In view of above discussion, it cannot be said the suit is barred by period of limitation. There is no illegality in the finding of the Ld. Trial Court.
17. The next ground taken by the appellant is that plaintiff has failed to prove agreement to sell dated 17.111982 and mere marking of a document as exhibit is of no consequence unless same is proved. It is also stated by the appellant that appellant/defendant no.-1 has only admitted his signature and has not admitted the execution of agreement to sell in favour of the plaintiff. Plaintiff is bound to prove the agreement to sell in his favour. In support of his contention, ld. Counsel for the appellant relied upon judgment Dattatraya v Rangnath Gopalrao Kawathekar(supra) and Sait Tarajee Khimchand v Yelamarti Satyam (supra).
In the present case, defendant no.-1 has admitted his signature on agreement to sell and receipt dated 17.11.1982. The only defence taken by the defendant no.-1 is that Late Ramanand father of plaintiff/respondent no. 1 came with some blank papers and one or two written papers and in good faith without readings its contents, defendant no. 1/appellant signed on 4/5 blank papers.
RCA DJ/60924/2016 Bharat Singh Vs.Harish Chander & Anr. Page No.9/1218. The defendant no.-1 admitted his signature on agreement to sell and receipt but took a defence that he signed blank papers and handed over the same to Late Sh. Ramanand, father of plaintiff/respondent no.-1 and plaintiff/respondent no. 1 might have committed theft of those blank papers and prepared forged documents. Once the defendant no.-1 has admitted his signature on agreement to sell Ex. PW1/B & receipt Ex. Ex. PW1/C, onus shifts upon the defendant no.-1 to prove how his signature was obtained by plaintiff/respondent no. 1 or for what purposes father of plaintiff/respondent no. 1 obtained signature of appellant/defendant no. 1 on blank papers. Appellant/defendant no. 1 cannot take a plea that plaintiff has failed to prove the agreement to sell & receipt. It is settled proposition of law that when a person signs a document, there is presumption unless there is proof of force or fraud, that he has read the documents properly and understood it and only then he has affixed his signature thereon, otherwise no signature on a document can ever be accepted. Reference can be had to "Grasim Industries Limited and Another v Agarwal Steel, (2010) 1 Supreme Court Cases 83. There is no allegation of force or fraud in the present case. The only defence taken by the defendant no. 1/appellant that he had signed some blank papers which he failed to prove by leading some cogent evidence. In view of admission of defendant no.-1 agreement to sell & receipt stands proved. The contention of the Counsel for the appellant that plaintiff failed to prove Ex.PW-1/B and Ex.PW-1/C is without any merit. Judgments relied upon by the Ld. Counsel for the appellant/defendant are not applicable to the facts & circumstances of the present case. In view of above, there is no infirmity or illegality in the findings of the Ld. Trial Court.
19. It is also argued by Ld. Counsel for appellant that the agreement to sell and receipt dated 17.11.1982 are forged and fabricated. The onus was upon the defendant/appellant to prove that agreement to sell and receipt RCA DJ/60924/2016 Bharat Singh Vs.Harish Chander & Anr. Page No.10/12 dated 17.11.1982 were false and fabricated documents. It has been contended by the defendants that defendant no. 1 signed blank papers and handed over to Late Sh. Ramanand father of plaintiff/respondent no. 1 and defendant no. 1/appellant executed agreement to sell dated 17/11/1982 in favour of Late Sh. Ramanand and Sh. Ramanand also paid sale consideration of Rs. 20,000/- to the appellant/defendant no. 1 and appellant/defendant no. 1 handed over possession of suit property to Late Sh. Ramanand. Plaintiff might have committed theft of those blank papers signed by defendant nos. 1 & 2 and prepared forged documents by committing forgery. Defendants also exhibited agreement to sell, affidavit and receipt dated 17.11.1982 which shows that agreement to sell was executed by appellant in favour of H.C. Verma s/o Ramanand and a receipt of Rs. 20,000/- has also been issued by appellant in favour of H.C. Verma. One affidavit of appellant is also part of Ex. DW1/1, wherein it has been mentioned that appellant has executed a GPA in favour of Ramanand. The defendants' own document Ex. DW1/1 shows that no agreement to sell was executed by appellant/defendant no. 1 in favour of Late Sh. Ramanand father of plaintiff/respondent no. 1 as alleged by defendants in their written statement. This document is of no help to the defendants. In fact, it contradict the case of the defendants.
20. Perusal of agreement to sell Ex. PW1/B and receipt Ex. PW1/C shows that these documents are signed by defendant no.-2 who is son of defendant no.-1/appellant, as attesting witness. It has not been pleaded by the defendants in their written statement that signature of defendant no.-2 were obtained on blank papers or agreement to sell Ex.PW1/B and receipt Ex. PW-1/C do not bear the signature of defendant no.-2. Defendant has not examined defendant no.-2 who was the natural witness/best witness to depose about the factum of obtaining signature of defendant no.1 & 2 on RCA DJ/60924/2016 Bharat Singh Vs.Harish Chander & Anr. Page No.11/12 blank papers. I do not find any cogent evidence on record which can prove that agreement to sell and receipt are forged and fabricated documents. Defendants have failed to prove that Ex.PW-1/B & Ex.PW-1/C are forged and fabricated documents. There is no illegality and infirmity in the findings of Ld. Trial Court.
21. In the totality of the circumstances of the case, it is held that Ld. Trial Court has rightly decreed the suit of the plaintiff/respondent no. 1 and accordingly appeal of the appellants is dismissed.
Parties to bear with own costs.
Decree sheet be prepared accordingly.
Trial Court record be sent with a copy of this judgment placed on it. Appeal file be consigned to Record Room after due compliance.
Announced in the open Court (RAJRANI)
Dated : 24.10.2016 Additional District Judge:-09
West:Tis Hazari Courts:
Delhi
RCA DJ/60924/2016 Bharat Singh Vs.Harish Chander & Anr. Page No.12/12