Punjab-Haryana High Court
Rama Nand And Another vs Phool Singh And Others on 29 July, 2009
Author: Hemant Gupta
Bench: Hemant Gupta
R.S.A.No.1678 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A.No.1678 of 2007
Date of Decision : 29.7.2009
Rama Nand and Another ...Appellants
Versus
Phool Singh and Others ...Respondents
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
Present: Mr. P.R.Yadav, Advocate,
for the appellants.
Mr. Gaurav Gupta, Advocate,
for the respondents.
HEMANT GUPTA, J. (ORAL)
The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts below, arising out of the suit for specific performance of an agreement dated 23.4.1996.
The plaintiff alleged that defendants are owner of land measuring 14 Kanals 12 Marlas and they agreed to sell the aforesaid land for a total consideration of Rs.2,70,000/-. A sum of Rs.1,00,000/- was paid as earnest money in the presence of the witnesses. The sale deed was to be executed and registered upto 1.6.1996 on payment of balance sale consideration of Rs.1,70,000/- before the Sub Registrar. Since the sale deed was not executed as agreed, the plaintiff filed the present suit for specific performance on 8.6.1996.
Defendant Nos.1 and 2 filed a joint written statement. It was pleaded that an agreement was entered upon by the said defendants with R.S.A.No.1678 of 2007 2 the plaintiffs at the rate of Rs.2,70,000/- per acre, but fraudulently the plaintiff has got recorded total sale consideration as Rs.2,70,000/-. Name of defendant No.3 was also wrongly included in the agreement without knowledge of defendant Nos.1and 2. Defendant No.3 has not entered into any agreement with the plaintiffs. After the agreement was typed, defendant No.2 has signed on said agreement relying upon the plaintiffs. Photocopy of the agreement was attached with the said written-statement. But before defendant No.1 could sign, he got the agreement read-over and came to know about the inclusion of name of the mother of the defendants and about the price. Therefore, he refused to sign the agreement. The earnest money of Rs.1 lac, which was also to be received was also not paid. However, a photocopy of the agreement was given. Thereafter, the plaintiffs said that they will discuss with defendant No.3 at residence and the necessary correction in respect of price will also be incorporated, but signatures of defendant No.1 and thumb impression of defendant No.3 were fraudulently put on the document. Even signatures of Lila Ram, witness was wrongly obtained. On the front page, it was wrongly written that Rs.1 lac in cash paid. Such writing was inserted subsequently. Thus, the agreement was said to be totally fraudulent and without consideration. It was also mentioned that an FIR has been lodged by defendant No.3 against the plaintiffs.
In a separate written-statement on behalf of defendant No.3, reference was made to an FIR lodged by her and that there was no agreement by defendant No.3 with the plaintiffs nor defendants have received any amount of consideration from the plaintiffs. R.S.A.No.1678 of 2007 3
In replication, the stand of the defendants was denied and it was asserted to the following effect :
".... All the three defendants agreed to sell the disputed land to plaintiff in the village Sangwari on 23.4.1996 for a sum of RS.2,70,000/- (Rs.Two lacs seventy thousand only). It is incorrect that the defendants agreed to sell the land in question @ Rs.2,70,000/- per acre. It is incorrect that the answering defendants are illiterate. It is incorrect that they can sign only. Defendant No.2 came alongwith the witnesses and plaintiff in Tehsil at Rewari for execution of the agreement which was got typed in Tehsil at Rewari in presence of Sh. Hanuman and witnesses and the plaintiff. Defendant No.2 signed the agreement to sell at the bottam and on the next page while witness Chiranji & Jas Ram signed the agreement on the next page No.2 and in such situation the agreement was given to Hanuman for keeping it as no amount was given at that time. Lila Ram did not sign the agreement at that time as he was of the view that he would not sign the agreement until and unless the earnest money is paid to the defendants in his presence. After that all the witnesses, plaintiff & defendant No.2 came to Village Sangwari and plaintiff paid the earnest amount of Rs.One lac in presence of all the three witnesses. The agreement was again read over and explained to defendant Nos.1 & 2 and defendant No.2 got the thumb impression of his mother from his house. Rama Nand also R.S.A.No.1678 of 2007 4 signed the agreement in presence of the witnesses and Hanuman and after than the earnest money was paid to defendant Nos.1 and 2. The defendant No.3 being an old lady and mother of defendant Nos.1 and 2 had stated at the time of agreement to pay the earnest money to defendant No.1 & 2 regarding her share as she is not to retain any money and they have also pay a loan amount of the bank. Hanuman again signed the first page of the agreement regarding receiving of the earnest money of Rs.One lac in village Sangwari....."
The parties went to trial with the said pleadings when an issue was framed whether the defendants had entered into an agreement with plaintiff for sale of their agricultural land.
In order to prove the execution of the agreement and the payment of earnest money, the plaintiff examined Kailash Chand (PW-1), the scribe of the agreement, Jas Ram (PW-6) and Chiranji (PW-7), the attesting witnesses beside examining plaintiff as PW-4. The witnesses have deposed that defendants Rama Nand, Hanuman and Dariai had entered into an agreement to sell land measuring 14 Kanals 12 Marlas for a sale consideration of Rs.2,70,000/- orally in the village and thereafter the said Dariai and Rama Nand sent the said Hanuman to tehsil at Rewari for getting scribed and executed the said agreement on 23.4.1996. The agreement (Ex.P-1) was scribed at the direction of Hanuman. The same was read over and contents explained. Hanuman put his signatures on the said agreement. Since the vendors Rama Nand and Dariai were not present, the agreement was kept by Hanuman and they all went to village. R.S.A.No.1678 of 2007 5 A sum of Rs.1,00,000/- has been received by vendors in their presences and in the presence of Leela Ram and an endorsement to this effect was written by Jas Ram (PW-6) in his own hand-writing to the effect that the earnest money had been received by Hanuman. Thereafter, the parties and the witnesses put their signatures on the said agreement after admitting the contents of the agreement as correct.
On the other hand, Hanuman and Rama Nand have been examined as DW-1 and DW-2 respectively. The learned trial Court decreed the suit holding that the agreement to sell was executed by the defendants by their free will and consent without any forgery, but that they had received earnest money of Rs.1,00,000/- from the plaintiff in the presence of witnesses in their house at village Sanghwari. After returning such findings the suit was decreed. The learned trial Court has taken into consideration that photocopy of the agreement Mark 'X' has been produced by defendant Nos.1 and 2 alongwith their written-statement. Said photocopy shows signatures of defendant No.2. Such photocopy is not signed by Rama Nand on 1st and 2nd page or by witness Lila Ram. Even, the endorsement that a sum of Rs.1 lac has been received in cash and signed by Hanuman does not appear on the said document. The endorsement of payment of Rs.1 lac is attested by Jas Ram and Lila Ram. Even the said attestation does not appear on the photocopy of the document. Thus, the Court found that from the photocopy of the agreement Mark 'X' produced by defendant No.2 and original agreement Ex.P-1 produced by the plaintiffs, in fact support the stand of the plaintiffs that agreement Ex.P-1 was executed by the defendants in the R.S.A.No.1678 of 2007 6 manner propounded by the plaintiffs and the stand of the defendants is incorrect.
The learned first Appellate Court reappreciated the evidence and found that DW-1 Hanuman has admitted during cross-examination that he had signed the said agreement at two places on the first page and at one place on the page 2. He admitted his signatures on endorsement Ex.PW-6/B and that he has received Rs.1,00,000/-. This endorsement is scribed by Jas Ram and signed by attesting witness Leela Ram. The signatures of Rama Nand (DW-2) were got compared from Finger Print Expert Som Nath Aggarwal (PW-5). On this basis of his report Ex.PW5/5, it was found that disputed signatures on the agreement tallied with his sample signatures.
The learned first Appellate Court did not find any substance in the arguments raised by the learned counsel for the appellants that according to plaint, the agreement was executed on the same day when the earnest money was paid, but the evidence is contradictory to the effect that the payment was made next day. It was found that plaintiff has explained the circumstances leading to the execution of agreement in replication. Therefore, it cannot be said that the stand of the plaintiff is contradictory.
The argument that defendant No.3 was never agreed for agreement to sell and the said agreement does not bear her thumb impressions, therefore, the said agreement cannot be enforced against her share did not find favour. Learned first Appellate Court found that defendant No.3 has since died and her share has been inherited by R.S.A.No.1678 of 2007 7 defendant Nos.1 and 2. therefore, even though defendant No.3 has not thumb marked the agreement, but in view of subsequent events defendant Nos.1 and 2 having inherited the share of their mother are bound by the agreement. Therefore, the plaintiff is entitled to the decree of specific performance as well. In fact, a finding has been returned that Hanuman has put his thumb impressions as that of his mother. In view of the said fact, the appeal was dismissed.
Before this Court, learned counsel for the appellants has vehemently argued that the evidence of the plaintiff is contradictory to the pleadings raised by the plaintiff and, therefore, the decree for specific performance could not have been granted. Reliance is placed upon Jai Narain Parasrampuria (Dead) and Others Vs. Pushpa Devi Saraf and Others (2006) 7 SCC 756, to contend that since the plaintiff had not approached the Court with clean hands, therefore, the decree for specific performance could not have been granted. Learned counsel for the appellants has referred to para 5 of the grounds of appeal pointing out the suspicious circumstances in respect of payment of earnest money of Rs.1,00,000/-. Learned counsel has further argued that endorsement of receipt of Rs.1,00,000/- is also surrounded by suspicious circumstance as explained in para 7 of grounds of appeal. It is also argued that the finding that Hanuman has forged thumb impressions of his mother is also based upon misreading of evidence.
Having heard learned counsel for the parties at some length and going through the record of the trial Court, I do not find any merit in the arguments raised by the learned counsel for the appellants. Though the R.S.A.No.1678 of 2007 8 plaintiffs have not pleaded in the plaint, the manner of execution of the agreement as pleaded in the replication. But the circumstances in detail have been explained in replication and the fact that it was Hanuman, who signed the agreement at the time when the agreement was being scribed in the presence of witnesses Jas Ram and Chiranji Lal. Defendant No.2 was sent by other defendants to get the agreement scribed. It was subsequently, on payment of Rs.1 lac, which is acknowledged by defendant No.2 under his signatures and attested by Jas Ram and Lila Ram, the amount of Rs.1 lac was paid to the defendants at the time when the agreement was signed by defendant No.1 as well. Though defendant No.1 has denied his signatures on the aforesaid agreement, but PW-5 Som Nath Aggarwal, Finger Print Expert, has proved that such document bears the signatures of defendant No.1 alone. Hanuman appearing as DW-1, has admitted the presence of Chiranji Lal, Lila Ram and Jas Ram at the time of writing of the agreement. It is the said persons, who have signed the agreement. Chiranji Lal and Jas Ram have signed when the document was written, whereas Lila Ram has signed at the time of payment at the house of the defendants. The defendants has not produced any other evidence except self serving statement of defendant Nos.1 and
2. No enmity is attributed to Chiranji Lal and Jas Ram, as to why the said persons, should depose against the defendants. Thus, it cannot be said that there is either contradiction in the pleadings, in the plaint and the replication or the evidence led is untrustworthy.
The judgment in Jai Narain's case (supra) is not applicable to the facts of the present case. In the present case, it is the defendants, who R.S.A.No.1678 of 2007 9 have been found not to be truthful witnesses. Defendant No.1 has denied his signatures in the written-statement, but the same stands proved. The defendants denied the execution of the agreement and the total sale considration. The said stand is also not believed by the Courts below. Therefore, it is not the plaintiffs, who have not come with clean hands, but it is the defendants, who have taken a false plea. In Jai Narain's case, it was found that both the parties are guilty of serious misconduct and abused the process of Court. Frivolous proceedings were found to be initiated by the parties against each other. In view of the said fact, the decree for specific performance was declined. Such is not the fact in the present case.
Therefore, the findings recorded by the Courts below cannot be said to be suffering from any patent illegality or irregularity. Though the arguments made by learned counsel for the appellants were in the realm of reappreciation of evidence, but even on reappreciation of evidence, I do not find that any other view than what is taken by the Courts below, is possible.
In view thereof, I do not find that any substantial question of law arises for consideration of this Court on the basis of findings recorded by the Courts below.
Dismissed.
29.7.2009 (HEMANT GUPTA) Vimal JUDGE