Punjab-Haryana High Court
Prem Singh vs Mangu Ram on 11 March, 2004
Equivalent citations: (2004)138PLR29
JUDGMENT M.M. Kumar, J.
1. This is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code') challenging concurrent findings of facts recorded by both the Courts below. It has been concurrently found that the plaintiff-respondent is entitled to a decree for specific performance of agreement to sell dated 5.12.1996 Ex.P1. Categorical findings have been recorded by both the Courts below holding that the defendant-appellant had executed the agreement to sell in respect of the suit land.
2. Brief facts of the case are that the plaintiff-respondent filed Civil Suit No. 263/T/02 dated 3.2.1999 for possession by way of specific performance of agreement to sell dated 5.12.1996 executed by the defendant-appellant in favour of the plaintiff-respondent in respect of the suit land. Further prayer was made for issuance of directions to defendant-appellant to execute the sale deed in favour of the plaintiff-respondent to get the same registered on payment of the balance sale consideration and other necessary expenses. The averments made in the plaint shows that Rs. 1,50,000/- per killa was the rate settled in respect of 6 bighas and 5 Biswas of land. The sale deed was to be executed on or before 5.11.1998 in favour of the plaintiff-respondent on the receipt of balance sale consideration plus registration charges. The plaintiff-respondent was present before the Sub-Registrar Dudhan Sadhan on 5.11.1998 alongwith the balance sale consideration plus registration charges. The plaintiff-respondent was present before the Sub-Registrar Dudhan Sadhan on 5.11.1998 alongwith the balance sale consideration and adequate amount for purchase of stamp papers plus other expenses. However, the defendant-appellant failed to turn up to perform his part of the agreement. It is further asserted that the plaintiff-respondent was still willing and ready to perform his part of the contract on the date of filing the suit. A registered notice through the counsel was issued which contained some clerical mistakes. However, the same were corrected by sending another notice requesting the defendant-appellant to execute the sale deed.
3. The defendant-appellant took the stand denying the execution of the agreement to sell and receipt of any earnest money. Consequently there was no question of agreement to execute the sale deed on or before 5.11.1998 in favour of the plaintiff-respondent. The agreement was alleged to have been fabricated by the plaintiff-respondent in collusion with the witnesses and the petition writer. The agreement was alleged to be the result of fraud and mis-representation and that the same was without consideration. Even the receipt of registered notice sent through counsel was denied. The trial Court framed the following issues:-
"1. Whether the plaintiff is entitled to decree of specific performance with possession as prayed for? OPP
2. Whether the present suit of the plaintiff is false, frivolous, fabricated and vexations to the knowledge of the plaintiff? OPD
3. Whether the agreement is result of fraud, misrepresentation and without consideration? OPD
4. Whether the plaintiff has not come to the Court with clean hands? OPD
5. Relief."
On issue No. 1, the finding recorded by the trial court is that the defendant-appellant executed the agreement dated 5.12.1996. The afore-mentioned finding is based on the statement made by plaintiff-respondent Mangu Ram himself by appearing as PW4 and the statement of PW1 Amrik Singh and PW2 Prem Chand. In support of the signatures on the agreement the plaintiff-respondent also produced an expert namely Shri R.B. Vashisht PW3 who proved his report Ex.P4 containing 6 pages Ex.P4A to P4D, four charts comprising two photographs each, Ex.P4E to P4L are the negatives. The trial Court has also discarded the defence that the defendant-appellant is an illiterate person. On the basis of the afore-mentioned over-whelming evidence and after due consideration of the evidence produced by the defendant-appellant who himself appeared as DW2 and who also examined deed writer Tejpal Singh Puri as DW1, the trial Court came to the conclusion that defendant-appellant had executed the agreement to sell Ex.P.1 and therefore the plaintiff-respondent is entitled for decree for specific performance.
4. On Issue Nos. 2 and 3 it was held by the Trial Court that the defendant-appellant has failed to prove as to how the agreement to, sell was false, frivolous and fabricated and all the above issues were decided against him. On issue No. 4 no evidence having been led by the plaintiff-appellant, the same was decided against him. Accordingly, the suit of the plaintiff-appellant was decreed for specific performance of agreement.
5. On appeal, much stress was laid on the statement made by Tejpal Singh Puri DW1 the scribe. He had stated that Prem Singh son of Dalip Singh defendant-appellant was not the same person who had put his signatures on the agreement. The scribe has further deposed that marginal witness PW1 was also present on 5.12.1996 when he incorporated the entry in his register at S. No. 40l on 5.12.1996 regarding the agreement in question. On the basis of the afore-mentioned argument it was sought to be established that the agreement to sell has not been proved. However, the learned Additional District Judge has placed reliance on the statement of marginal witness Amrik Singh PW1 who knew the parties personally. PW1 had stated that defendant-appellant had put his signatures in token of correctness of the contents of the agreements Ex.P1 in his presence and an amount of Rs. 1,00,000/- as earnest money by the plaintiff-respondent was passed on to defendant-appellant when the second attesting witness Bach an Singh was also present. Even the denomination of currency notes of Rs. 100/- has been mentioned by PW4 Mangu Ram. Reliance is placed on the statement of DW1 Tej Pal Singh Puri. Coming heavily on the statement of Tej Singh Puri, the learned Additional District Judge observed as under:-
"This PW1 identifies his signatures on agreement Ex.P1. As direct testimony on PW1 establishes that agreement Ex.P1 infact bears his signatures and as such that is enough to establish that infact DW1 not telling truth the signatures of Amrik Singh were not obtained on agreement Ex.P1 in his presence. A deed writer who writes names of another on document like agreement after one month and then enters the same in his register with Serial Number has no right of practice as a licensed deed writer because if such like deed writers continue to do practice in the Tehsil/Court premises, then they can help the forgers/fabricators in preparing the agreements. In view of the above assertions of DW1 it is essential to bring to the notice of the Deputy Commissioner, Patiala the fact that DW1 due to his assertions in court as referred above must not be allowed to practice and steps for cancellation of his licence be taken, so that the gullible may not be plundered by such like scribes. However, statement of DW1 itself establishes that appellant often visits him due to which he can identify him."
However, the learned Additional District Judge has expressed doubts with regard to certain recitals in the agreement to sell. It was stipulated in the agreement to sell that possession of the suit land was handed over to plaintiff-respondent on 5.12.1996 itself. Hhasra girdawaris of the corresponding years do not reflect this fact nor such a version has been given by any of the witnesses of the plaintiff-respondent in their statements. It has further been found that the sale price of the land fixed was Rs. 1,50,000/- per acre and an amount of Rs. 1,00,000/- had already been paid. The marginal amount of Rs. 20,000/-alone remained to be paid at the time of execution of the sale deed on 5.11.1996. Plaintiff-respondent who was the commission agent could have easily paid the small amount of Rs. 20,000/- on the date for execution of the agreement dated 5.12.1996 itself. On the basis of the afore-mentioned facts, the learned Additional District Judge came to the conclusion that the real intention of the parties was not to sale and purchase the land. He found that the transaction may be merely to secure the payment of Rs. 1,00,000/- by the plaintiff-respondent from the defendant-appellant. It is in these circumstances that the learned Additional District Judge modified the findings by refusing to pass the decree for specific performance. However, he granted the alternative relief of recovery of Rs. 1,00,000/-alongwith interest @ 6% p.a. from the date of execution of the agreement till realisation.
6. Shri Vinod K. Kataria, learned counsel for the defendant-appellant has argued that learned Additional District Judge has recorded a contradictory finding by holding on one hand that the plaintiff-respondent did not approach the Court with clean hands and concluding on the other hand that he was entitled to recovery of Rs. 1,00,000/- alongwith interest @ 6 percent p.a. According to the learned counsel once the scribe DW1 Tej Pal Singh Puri had deposed before the Court that defendant-appellant was not the person present before the scribe then it cannot be concluded that due execution of the agreement to sell P1 was established on record. Learned counsel has also argued about the entry of the name of Amrik Singh PW1 on the asking of Mangu Ram plaintiff-respondent after about one month. Therefore, the learned counsel has emphasised that the appeal would involve a substantial question of law as to whether the decree for recovery of Rs. 1,00,000/- could be passed despite the fact that scribe has contradicted the execution of agreement Ex.P1.
7. Having heard the learned counsel at a considerable length and perusing the impugned judgment and decree 1 am of the considered view that this appeal is devoid of merit and is thus liable to be dismissed. It cannot be doubted that Ex.P1 has been only executed and has been proved by the depositions made PW1 Amrik Singh, PW4 plaintiff-respondent Mange Ram and the expert R.B. Vashisht PW3 who has identified the signature of the defendant-appellant. It has also been proved on record that an amount of Rs. 1,00,000/- was passed on to defendant-appellant in the presence of witnesses. Even the denomination of currency notes of Rs. 100/- has been given and entry to that effect has been made by Tejpal Singh Puri DW1 at Section No. 401 on 5.12.1996 in his register. Therefore, no doubt can be entertained with regard to the conclusion recorded by the lower appellate Court that the agreement to sell was executed and consideration of Rs. 10,00,000/- has passed hands. The findings of the lower appellate Court on other issues are equally well founded. Doubts have been expressed as to whether the parties really intended to sell and purchase the land in dispute which is based on a stipulation expressed in the agreement to sell namely that possession of the land has been handed over to the plaintiff-respondent. The afore-mentioned recital has been falsified by the entries made in the khasra girdawaris. It has also been found that the plaintiff-respondent is a commission agent and the document Ex.P.1 was a money transaction to secure back the amount given by the plaintiff-respondent to defendant-appellant. Therefore, the discretion under Section 20 of the Specific Relief Act, 1963 has been rightly exercised by refusing the decree for specific performance of the agreement and granting alternative relief of recovery of Rs. 1,00,000/- alongwith interest @ 6% p.a. Therefore, I do not find any legal infirmity in the views taken by the Learned Additional District Judge.
8. The argument of the learned counsel that once the agreement to sell has not been proved on account of the statement made by DW1 Tej Pal Singh Puri would not require any detailed consideration because even Tej Pal Singh Puri could not deny the entry of agreement to sell in the register at serial No. 401 dated 5.12.1996, The statement made by DW1 Tej Pal Singh Puri alongwith other witnesses as well as the statement of the expert PW3 would clearly show that there was valid execution of the agreement to sell and Rs. 1,00,000/- was handed over by plaintiff-respondent to defendant-appellant. These are findings of facts and this Court cannot enter into re-appreciation of evidence merely because it feels that another view is possible. There is ample evidence on record to support the findings recorded by the Learned Additional District Judge. No question of law much less a substantial question of law would arise for consideration warranting admission of this appeal. The appeal is without any merit is thus liable to be dismissed.
For the reasons recorded above, this appeal fails and the same is dismissed.