Punjab-Haryana High Court
Sapattar vs M/S Amar Nath Suman Lal C/O Old Anaj Mandi on 2 April, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.1419 of 2012(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
RSA No.1419 of 2012(O&M)
Date of Decision:-02.04.2012
Sapattar.
......Appellant.
Versus
M/s Amar Nath Suman Lal C/o Old Anaj Mandi, Kaithal.
......Respondent.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH.
Present:- Mr. Sanjay Majithia, Senior Advocate with
Mr. Jashanpreet, Advocate for defendant/appellant.
***
JASWANT SINGH, J.
Defendant/appellant is in second appeal against the concurrent findings of the courts below, whereby the suit for specific performance for agreement to sell dated 12.07.2002 or in the alternative recovery of double amount of earnest money along with interest filed by the plaintiff/respondent was decreed by the learned Civil Judge(Junior Division), Kaithal vide judgment and decree dated 22.05.2009 and the same was affirmed by the learned District Judge, Kaithal vide judgment and decree dated 09.11.2011.
Brief facts for proper adjudication of the case in hand are that the plaintiff had based his suit for specific performance on the agreement to sell dated 12.07.2002 for agricultural land measuring 8 Kanal. It was stated RSA No.1419 of 2012(O&M) #2# that the earnest money taken by defendant at the time of execution of the agreement to sell was Rs.90,000/- and the total price fixed for the same was Rs.1,50,000/-. The last date for the execution of the sale deed was 30.05.2003, but on 26.05.2003, defendant asked the plaintiff/respondent to extend the time from 30.05.2003 to 30.07.2003 and a writing to this effect was executed on the back of the agreement to sell. Through this writing itself, it was alleged by the plaintiff that Rs.10,000/- more were received. On 30.07.2003 the plaintiff alleged that he was present before the Joint Sub Registrar, Kalayat but the defendant never turned up. He had made several requests to the defendant but the same have gone to deaf ears and, therefore, the present suit was filed.
Upon notice, defendant/appellant filed written statement and has taken the stand that the plaintiff had taken signatures on blank papers as security because he was a customer of the plaintiff firm as, he used to sell his agricultural products to this firm. He also alleged the land to be ancestral co-parcenary property and, therefore, he stated that the same could not be sold by him. He also filed a counter claim for rendition of accounts for directing the plaintiff to supply the bills regarding the account pertaining to the defendant/appellant and it was prayed that a decree be passed for the recovery of the amount due towards the plaintiff on the basis of the transaction dated 10.10.2000 and 3.11.2000.
Plaintiff filed replication cum reply to the counter claim wherein he denied the averments made in the written statement as well as counter claim and reiterated the case of his plaint.
From the pleadings of the parties issues were framed. Both the RSA No.1419 of 2012(O&M) #3# sides led their respective evidence in support of their claims. After appreciating the evidence of both the sides, the trial Court decreed the suit vide judgment and decree dated 22.05.2009 and the findings of the trial Court have been affirmed in appeal vide learned lower Appellate Court's judgment and decree dated 09.11.2011. Hence the present second appeal.
I have heard learned Counsel for appellant and have gone through the record of the case very carefully with his able assistance.
Learned Counsel for the appellant has firstly argued that the suit property is ancestral and thus it cannot be alienated by the defendant/appellant and, therefore, both the courts below could not have decreed the suit of the plaintiff/respondent. The second argument raised by the learned Counsel for the appellant is that since there was a fiduciary relationship between the parties, therefore, it is quite probable that the signatures of the appellant were taken on blank papers. However, both the courts below have ignored the material evidence lead by the defendant to prove this fact which has resulted into great perversity and thus the judgment and decrees passed by both the courts below are liable to be set aside.
After hearing learned Counsel for appellant and perusing the paper book, I am of the opinion that both the arguments are completely devoid of any merit. I have gone through the document i.e. agreement to sell. The said agreement to sell, by no stretch of imagination seems to be a forged document or that the signatures on the same were taken prior in time and thereafter the said document was written. In fact there is a concurrent finding by both the courts that both, the acknowledgment as well as the RSA No.1419 of 2012(O&M) #4# receipt regarding Rs.90,000/- and Rs.10,000/- respectively were written in the hands of defendant and this fact has not been controverted by the appellants even before me. It is not explained as to how a person who is said to have not executed the agreement would write the acknowledgment in his own hand. The agreement to sell has been proved by the scribe as well as by the attesting witness and their testimony, as held by both the courts has not been shattered during the cross examination. When such is the position, then I am of the opinion that the agreement to sell in dispute was proved by the plaintiff and now the onus shifted upon the defendant to prove his case. However, the defendant has not lead any kind of cogent evidence so as to warrant any kind of interference from this Court.
As far as the argument of the learned Counsel for the appellant regarding their being fiduciary relationship between the parties, I am of the view that when DW-3 i.e. the defendant himself has admitted that he sold the crop only for one year, then the relationship, as alleged is not proved to have been there. A person who would sell the crop for only one year cannot have that much of confidence in any person so as to sign on the blank papers and forget them after executing. Since the transaction was monetary in nature, the parties are liable to be conscious for atleast the first few years of the said transaction. Hence this argument is also completely devoid of merit.
Finally the argument of the learned Counsel for the appellant that the property in dispute is ancestral property is also hollow, for the reason that the appellant has miserably failed to adduce any evidence so as to prove the ancestral co-parcenary nature of the property. Learned Courts RSA No.1419 of 2012(O&M) #5# below have rightly held that as per Ex.D-1, which the mutation no.4907 to inheritance of Surja(father of defendant), the property devolved upon his wife and four sons. When this is the case, then it cannot be said that the property is ancestral co-parcenary property. The ancestral property is required to be proved by showing that the same was inherited from father's father's father and there has been no devolution of interest through any other means except for inheritance between the male member only. If it is not proved, then it is settled position of law that the property is presumed to be self acquired. In the case in hand, in view of lack of evidence brought forth by the appellant, I have no hesitation in holding that the property in dispute is a self acquired property.
Learned Counsel for the appellant has relied upon Dalbir Singh alias Vir Singh Vs. Dalbir Singh AIR 2001 Punjab & Haryana 216, Balmukand L. Hira Nand Vs. Pindi Dass (deceased) & Ors. AIR 1958 Punjab 267 (V 45 C 72) & Gurbax Singh Vs. Labhu Ram 1996(1) Civil Court Cases 9 (P&H). However, these judgments are not applicable to the facts and circumstances of the case in hand for the reasons and findings given above.
In view of the above, finding no question of law much less substantial question of law arises for consideration, the present second appeal is hereby dismissed.
( JASWANT SINGH ) JUDGE April 02, 2012 Vinay