Dismissed

Amrit Kumar v. Kulwant Singh

Punjab & Haryana HC16 Jan 2009RSA/251/1989

Case brief

AI extract

What is this about?

In this second appeal challenging a specific performance suit dismiss ed by the lower appellate Court, the High Court held that the finding was based on evidence appreciation. The Court found no misreading or perversity, reversing the appeal and dismissing it with no order as to costs.

What did the court decide?

The appeal was dismissed with no order as to costs. The judgment and decree of the lower appellate Court were upheld.

Amrit Kumar Vs Kulwant Singh — Specific Performance | Punjab & Haryana HC (2009)

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R.S.A. No. 251 of 1989 (O&M

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IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH

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R.S.A. No. 251 of 1989 (O&M) Date of Decision : 16.1.2009

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Amrit Kumar & others

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.......... Appellants

Versus

Kulwant Singh

...... Respondent

CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA

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Present : Mr. D.S. Bali, Sr. Advocate with Mr. Namit Gautam, Advocate for the appellants.

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Mr. Manjit Singh, Advocate for the respondent.

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VINOD K. SHARMA, J.

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The appellants by way of this regular second appeal have challenged the judgment and decree dated 6.10.1988 passed by the learned District Judge, Patiala dismissing the suit for specific performance of agreement to sell.

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The plaintiff-appellants filed a suit for possession by way of specific performance of agreement to sell dated 16.11.1981 in respect of the land measuring 14 Bighas 4 Biswas situated in village Dayalpura, Tehsil Rajpura District Patiala, on payment of balance sale consideration of Rs. 53,250/-.

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The case set up by the plaintiffs was that defendant-respondent

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R.S.A. No. 251 of 1989 (O&M

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had entered into an agreement to sell the land in dispute on 16.11.1981. The rate fixed was Rs. 15,000/- per Killa. The land was lying mortgaged with the plaintiffs for an amount of Rs. 15,000/- by means of two different mortgage deeds for an amount of Rs. 7500/- each which was treated as the earnest money.

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The plaintiffs further claimed that after the execution of the agreement to sell the defendant borrowed an amount of Rs. 5000/- from plaintiff No.1 Amrik Kumar on 24.11.1981, and another amount of Rs. 20,000/- from plaintiff No.2 Smt. Pushpa Devi on 19.5.1982 by means of two separate pronotes and receipts respectively carrying an interest of Rs. 1.56% PM regarding which it was claimed that separate suits were being filed.

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The plaintiffs claimed that in order to defeat the agreement entered into between the parties the defendant-respondent had started negotiating for selling the land in dispute to some stranger. A suit for permanent injunction was instituted against defendant-respondent on 27.6.1983 in which the respondent on appearance denied the execution of the sale agreement in favour of the plaintiff-appellants. The plaintiffs claimed that they were always ready and were still ready and willing to perform their part of contract but defendant-respondent committed breach thereof.

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The suit was contested and the averments on merit were denied. It was claimed by respondent-defendant that he never entered into the agreement to sell and that in any case if the agreement is in existence the

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same is a forged document. It was denied that plaintiff-appellants could claim specific performance of the agreement or that they were entitled to adjust the mortgaged amount of Rs. 15,000/- at the time of registration of sale deed. The execution of pronotes was also denied. A plea was taken that defendant-respondent being owner of the property had every right to sell the same. The stand was also taken that as there was no agreement to sell between the parties and thus there arose no question of the plaintiffappellants being ready and willing to perform their part of contract.

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On the pleadings of the parties, the learned trial Court was pleased to frame the following issues :-

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“1. Whether the defendant entered into sale agreement with the plaintiffs in respect of the suit land on 16.11.1981 ? OPP

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2. Whether the plaintiffs are entitled to decree for specific performance ? OPP

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3. Whether the plaintiffs remained and are still ready and willing to perform their part of the contract ? OPP

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4. Whether the suit is within time ? OPP 5. Whether the agreement in dispute is forged document ? OPD

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6. Relief.”

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The plaintiffs examined Bidi Chand as PW-1,Dev Raj as PW-2, Mahavir Parshad Jain as PW-3 besides one of the plaintiffs i.e. Amrit Kumar as PW-4. They also produced in evidence the agreement to sell dated 16.11.1981 Ex. P-1.

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The defendant-respondent examined Vidi Ram, Registration

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R.S.A. No. 251 of 1989 (O&M

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Clerk of the Office of Sub Registrar, Dera Bassi as DW-1, Durga Singh as DW-2, Diwan K. S. Puri as DW-2A and himself appeared in the witness box as DW-3. The defendant also tendered into evidence the sale deed dated 22.4.1982 as DW2/A in respect of sale of some other land situated in the same village i.e. Dialpura.

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On consideration of the evidence brought on record the learned trial Court came to the conclusion that the execution of the agreement to sell stood duly proved by examining the parties as well as the attesting witnesses thereto. The Court also on the available evidence on record, recorded a finding that the plaintiff-appellants remained and still ready and willing to perform their part of contract. The evidence led by hand-writing expert Diwan K.S. Puri was not accepted by examining the signatures itself and in view of the findings on issues No. 1 & 3, the suit was ordered to be decreed. The other issues i.e. issues No. 4 & 5 were also decided against the respondent-defendant.

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The defendant-respondent preferred an appeal.

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The learned lower appellate Court on appreciation of evidence

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reversed the finding by observing as under :-

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“The disputed agreement of sale in this case is Ex. P-1. It was scribed by Waliati Ram deed-Writer and bears the attestation of Vidhi Chand, Dev Raj, Amrit Lal and the disputed signatures of Kulwant Singh. In order to prove the execution of this document, the plaintiffs have produced Vidhi Chand PW1, Dev Raj PW 2, Mahabir Parshad PW3 son of the deed-writer and Amrit Lal, one

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R.S.A. No. 251 of 1989 (O&M

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of the plaintiffs himself appeared as PW4. Before appreciating the evidence of these witnesses, it would be useful to note that the suit land was already under mortgage with the plaintiffs for a sum of Rs. 15,000/-. No amount was advanced to the defendant appellant at the time of the alleged agreement of sale. The stipulation in respect of the execution of the sale deed was within 5 years. The plaintiffs also have claimed that subsequent to the agreement of sale on 16.11.1981 the defendant appellant borrowed a sum of Rs. 5000/- on 24.11.1981 ( i.e. within 8 days from the date of agreement of sale ) and Rs.20,000/- on 19.5.1982. Keeping in view the circumstances, the execution of the agreement of sale is to be appreciated. First of all, it would be noticed that Vidhi Chand belongs to village Kurri which is stated to be situated in Tehsil Kharar District Ropar. PW2 Dev Raj belongs to village Kadra Baad which is stated to be in Tehsil Samana while Amrit Kumar plaintiffs belongs to village Ambala in Tehsil Rajpura. The disputed agreement is stated to be executed at Dera Bassi. The suit land is situated in village Dayalpur which is in Tehsil Rajpura. PW 1 Vidhi Chand stated that he is related to the plaintiffs but he denied that he has any relationship with Dev Raj the other attesting witness, DW2 Dev Raj stated that Vidhi Chand is his sister's husband. Amrit Kumar, one of the plaintiffs, stated that none of the PWs i.e. Vidhi Chand and Dev Raj are his relations and he did not know if they were inter-se related on the date of agreement of sale. This conflicting stand taken by these witnesses about their inte-se relationship casts doubts in the bonafide of the plaintiffs

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R.S.A. No. 251 of 1989 (O&M

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as to how these witnesses were collected at Dera Bassi where normally they are not likely to be present being residents of far of places. Now according to Vidhi Chand, he along with Dev Raj was present at the Busstop of Dera Bassi from where defendant appellant called him and took him to the seat of the documentwriter whereas according to Dev Raj he alongwith Vidhi Chand was present at the shop of Dr. Kesho Ram at Dera Bassi where he had come to take medicines from Dr. Kesho Ram. According to him, Kulwant Singh came to the shop of Kesho Ram and took them along. Now according to Amrit Kumar, on the day of the execution of the agreement of sale he alongwith his brother Sham Lal had gone to the village of Kulwant Singh defendant appellant and had brought him from there to Dera Bassi. If Kulwant Singh was not to be given any money nor he had come of his own to contact the mortgagees for executing the agreement of sale what was the necessity for the mortgagees to approach him for execution of the sale/deed when they were already in possession of the suit land. It is of no body's case that defendant appellant had any compelling reason to execute the agreement of sale on 16.11.1981. The experience tells that whenever the agreement of sale is executed the executant receives some amount from the prospective vendees towards the earnest money, otherwise a land owner is not likely to execute agreement of sale or a sale-deed in favour of any other person more so the allegation of the plaintiffs in this case is that on 24.11.1981 defendant appellant borrowed Rs. 5000/- from them. There appears to be no reason for Kulwant Singh not to get some amount on

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R.S.A. No. 251 of 1989 (O&M

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16.11.1981 when he allegedly executed the agreement of sale. There is also discrepancy in respect of the execution of the agreement Ex. P1. According to Vidhi Chand Kulwant Singh was the deed-writer at that time when he reached the place where the deed-writer resided. The agreement of sale had been scribed before his reaching that place. According to Dev Raj the agreement had already been executed when he went to the deed-writer at Dera Bassi. According to him Kulwant Singh did not sign in his presence. He also stated that he does not know who had purchased the stamp papers. According to Vidhi Chand he thumb marked the agreement of sale.A reference to agreement of sale shows that it does not bear the thumb impression of Vidhi Chand, rather it bears the signatures of Vidhi Chand. Similarly Vidhi Chand stated that he had thumb marked the agreement as an attesting witness and Dev Raj had signed the same. Since Vidhi Chand and Dev Raj the attesting witnesses unanimously stated that Vidhi Chand had thumb marked the agreement of sale which is not borne out from this document, there could be no better evidence of falsity o evidence of the execution of this agreement by Kulwant Singh. Yet another discrepancy in the testimony of these witnesses which is relevant to be noted is that according to Vidhi Chand PW only Kulwant Singh defendant was with the deedwriter whereas according to Dev Raj, Amrit Kumar and Pushpa Devi (plaintiff) were sitting with the deed-writer while according to Amrit Kumar his brother Sham Lal who is a Head-constable of Police was also present at the time of execution of the agreement of sale. He does

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R.S.A. No. 251 of 1989 (O&M

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not mention the presence of Pushipa Devi. It would also be seen that none of the attesting witnesses Vidhi Chand and Dev Raj ever stated that Amrit Kumar plaintiff also signed the agreement Ex.P1 at all. The evidence produced by the plaintiffs in support of the execution of the agreement which has been discussed above is not above board. The only other evidence taken into consideration by the trial court is the alleged signatures of Kulwant Singh on agreement Ex.P1. Kulwant Singh has denied his signatures on agreement Ex.P1 and pleaded that the signatures, if any, were the creating of forgery. The defendant produced Dewan K. S. Puri the renowned Expert who gave his report Ex. DW2/A. He has categorically stated that the signatures on document Ex. P1 do not correspond with the specimen signatures of Kulwant Singh appellant and he has further observed that the disputed signatures have been written under intoxication. The trial Court observed that Dewan K.S. Puri has not said any where in his report or in his statement if the agreement of sale does not bear the signatures of the defendant and all that he has stated that the disputed and specimen signatures do not correspond each other. The observation of the trial Court is nothing but mis-quoting of the report as well as the statement of Dewan K.S. Puri. His statement as a whole and the report as a whole definitely are to the effect that the disputed signatures are not of the defendant Kulwant Singh Dewan K. S. Puri has by now earned a name as an Expert of the disputed handwriting and the allied subjects and his report on a disputed handwriting or signatures cannot be easily ignored.

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R.S.A. No. 251 of 1989 (O&M

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Dewan K.S. Puri has earned the estee, of Courts and he has been quoted with approval of his expertise in case Ashok Kumar and another Vs. Avtar Singh 1987(2) Rent Control Reporter page 286 at page 289. His lordship Justice D.V. Sehgal has observed as under :-

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“-------------

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Dewan K.S. Puri, Handwriting Expert who is one of the rare experts in this region known for giving candid opinion irrespective of the fact whether it goes in favour of or against the party engaging him.”

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To dispell the doubt regarding the word 'corresponding' used by Dewan K.S. Puri, it would be useful to refer the meaning of “corresponding” as given in the New Webster's Dictionary. It is given to be “similar or analogous; be in agreement or conformith :- agree with. “Similarly in the same dictionary the word “tally” has been given meaning amongst others” to correspond to “accord or agree”. There is thus no difference if Dewan K.S. Puri used the expression “did not correspond” instead of “did not tally with” while giving the report that the disputed signatures are not of Kulwant Singh appellant. There is thus every reason to hold that agreement Ex.P1 was never executed by Kulwant Singh appellant and it did not bear his signatures. The findings of the trial court to the contrary are thus reversed. The case of the appellant also suffers from material infirmity that there is no proof of the plea of the plaintiffs that that they were ready and willing to perform their part of agreement. It is well settled by now that it is not sufficient to plead that the plaintiff was ready and

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R.S.A. No. 251 of 1989 (O&M

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willing to perform his part of the agreement; rather he is required to plead as well and to prove his readiness and willingness to perform his part of the agreement. In his statement Amrit Kumar PW4 stated that they had been asking the defendant appellant many times to execute the sale-deed but he been refusing to do so besides he stated that they were ready and willing as well as now to get the sale deed executed. The law on the point has been well elucidated in decision Ishar and others Vs Sheo Ramand others 1987 P.L.J. 421. In the instant case the plaintiffs never alleged that they had ready money with them. The bald statement of Amrit Kumar plaintiff that they were ready and willing to perform their part of the contract does not establish the financial capability to pay the remaining sale price as is settled in agreement of sale Ex. P1. It would also be seen that the disputed agreement mentions that the sale-deed be executed within 5 years from the date of agreement. Moreover, the plaintiffs in its para No.1 of the plaint mentioned that the defendant had agreed to the agreement itself. It is itself in the case of the plaintiffs that they are in possession of the suit land as mortgages even at the time of filing the suit but strangely enough they also prayed for decree of possession by way of specific performance of sale of agreement. The prayer clause does not mention if the amount of Rs. 15000/- i.e. mortgage amount is to be deducted from the sale consideration of Rs. 3250/-.”

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Mr. D.S. Bali, learned senior counsel for the appellants raised

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the following substantial question of law for consideration by this Court in this appeal :-

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R.S.A. No. 251 of 1989 (O&M

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Whether the judgment and decree passed by the learned lower appellate Court is outcome of misreading of evidence and, therefore, perverse, thus liable to be set aside ?

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In support of the substantial question of law the learned senior counsel for the appellants contended that the judgment and decree of the learned lower appellate Court is perverse as it has failed to notice that in order to succeed in a suit for specific performance the plaintiff-appellants were only required to prove the due execution of the agreement and that the plaintiffs always remained and were willing to perform their part of contract.

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The learned senior counsel for the appellants by referring to the evidence led, vehemently contended that in the present case the plaintiffappellants proved the due execution of the agreement by producing the attesting witnesses to the agreement. The payment of earnest money by adjustment of the mortgaged amount also stood proved.

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The learned senior counsel for the appellants also referred to the statement made by one of the plaintiffs showing that he was present in the office of the Sub Registrar for execution of the sale deed which proved the fact that plaintiff-appellants always remained willing to performance their part of contract.

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The learned senior counsel for the appellants further contended that the learned lower appellate Court failed to notice that the stand of the defendant-respondent, that the agreement was forged and fabricated

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R.S.A. No. 251 of 1989 (O&M

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document, was not proved by any evidence as no evidence was led to prove the fraud.

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It is also the contention of the learned senior counsel for the appellants, that it is well settled law that the Court is expert of experts and, therefore, the learned lower appellate Court could not have relied on the evidence of Diwan K. S. Puri in preference to the finding recorded by the learned trial Court holding that the signatures of defendant-respondent on the agreement to sell tallied with the admitted signatures.

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On consideration of the matter, I find no force in the contentions raised by the learned senior counsel for the appellants. The signatures on the mortgage deed were compared with that on the alleged agreement to sell and it was noticed that the same was apparently different, therefore, the comparison by naked eye was not possible, as held by the learned trial Court. The evidence of Diwan K.S. Puri inspires confidence that the agreement was in fact not executed. This opinion can be formed even the basis of facts pleaded in the plaint. It is not in dispute that at the time of agreement to sell no consideration was passed to the defendantrespondent.

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It is also not the case of the plaintiff-appellants that for consideration of agreement to sell the mortgage stood extinguished and that the possession was handed back to the defendant-respondent. Thus, the agreement was prima facie without consideration, as per the admitted facts.

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It may further be noticed that nothing was explained as to why subsequent to execution of agreement to sell the money was advanced to the

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R.S.A. No. 251 of 1989 (O&M

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defendant-respondent that too on interest by execution of the pronotes.

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The facts pleaded, and the statements of the attesting witnesses to the agreement of sale does not inspire confidence, therefore, the learned lower appellate Court, was fully justified in reversing the judgment and decree passed by the learned trial Court. The judgment is based on appreciation of evidence.

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The Hon'ble Supreme Court in the case of Veerayee Ammal v. Seeni Ammal 2001 AIR SCW 4377 , has been pleased to lay down as under :-

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“10. The question of law formulated as substantial question of law in the instant case cannot, in any way, be termed to be a question of law much less as substantial question of law. The question formulated in fact is a question of fact. Merely because of appreciation of evidence another view is also possible would not clothe the High Court to assume the jurisdiction of terming the question as substantial question of law. In this case Issue No.1 as framed by the trial Court, was, admittedly, an issue of fact which was concurrently held in favour of the appellant-plaintiff and did not justify the High Court to disturb the same by substituting its own finding for the findings of the Courts below, arrived at on appreciation of evidence.”

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Again in the case of Rajgopal (Dead) by L.Rs. v. Kishan Gopal

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and another 2003 A.I.R. SCW 4986 , the Hon'ble Supreme Court, was pleased to lay down as under :-

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“On the other hand, the first appellate Court, after

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R.S.A. No. 251 of 1989 (O&M

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taking into consideration and discussing the oral and documentary evidence threadbare, recorded a finding that the plaintiffs failed to prove that there was an agreement between the natural and the adoptive fathers to the effect that adopted son shall be treated to be the son of both of them and entitled to inherit their properties and consequently, the adoption of Goverdhan Das was in ordinary form. Mr. V.A.Mohta, learned senior counsel appearing on behalf of the respondents strenuously contended that the finding recorded by the first appellate Court was unwarranted. The findings on this point recorded by the first appellate Court which was final Court of fact was a pure finding of fact and could not have been interfered with by the High Court in the exercise of powers conferred upon it under S. 100 of the Code of Civil Procedure, 1906, more so when no question of law much less, substantial one was involved.”

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The findings recorded by the learned lower appellate Court cannot be said to be perverse or not capable of being arrived at on appreciation of evidence and the facts brought on record.

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The Hon'ble High Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure cannot re-assess or re-appreciate the evidence or make roving enquiry by entering into the factual arena of the case to come to a different conclusion than the one arrived at by the learned lower appellate Court which is the final Court of fact.

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The jurisdiction of this Court is, thus, limited only in a case where there is a misreading of evidence or on admitted evidence the

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R.S.A. No. 251 of 1989 (O&M 15

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findings recorded are perverse, thus, no question of law or the findings can be said to be against the public. No such case has been made out. Thus, the substantial question of law, as framed, does not even arise for consideration by this Court.

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The substantial question of law, is answered against the appellants and in favour of the defendant-respondent. The judgment and decree passed by the learned lower appellate Court cannot be said to be outcome of misreading of evidence or perverse. Therefore, finding no merit in this appeal the same is ordered to be dismissed but with no order as to costs.

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16.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE

Amrit Kumar v. Kulwant Singh

Case brief

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Amrit Kumar v. Kulwant Singh

Case brief

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