Dismissed

Raj Singh v. Ramesh Kumar and Ors.

Punjab & Haryana HC5 May 2014RSA/4423/2011

Case brief

AI extract

What is this about?

The High Court dismissed the appeal filed by a land seller who denied executing a sale agreement. The court upheld the lower courts' finding that the appellant executed the agreement, received payment, and failed to register the sale deed despite the buyer's readiness and due date extensions, driven by increased land prices.

What did the court decide?

The appeal was dismissed, upholding the decree for specific performance granted by the Trial Court.

Raj Singh Vs Ramesh Kumar and Ors. — Specific Performance | Punjab & Haryana HC (2014)

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vinod kumar 2014.05.15 10:27 I attest to the accuracy and integrity of this document Chandigarh

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RSA No.4423 of 2011 (O&M)

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[ 1 ]

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.4423 of 2011 (O&M) Date of decision:05.05.2014

Raj Singh

...Appellant

Versus

Ramesh Kumar and others

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...Respondents

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CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain

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Present: Mr. Deepak Thapar, Advocate, for the appellant.

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Mr. R.K.Gupta, Advocate, for respondent no.1.

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Mr. Ashutosh Hoshiarpuri, Advocate, for respondents no.2 and 3.

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RAKESH KUMAR JAIN, J .

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This appeal is filed by defendant no.1 who had entered into an agreement with the plaintiff on 23.06.2004 for the sale of 8 kanals 16 marla of land, being 1/8^th share of total land measuring 70 kanal 12 marlas, situated in the revenue estate of village Murthal, Tehsil and District Sonepat, for a consideration of 6,50,000/- after receiving 2,00,000/- as advance and promised to execute and register the sale deed on or before 22.11.2004 on receipt of balance sale consideration.

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According to the plaintiff, he has always been ready and willing to perform his part of the contract. The date of execution of sale deed was mutually extended on 21.12.2004 to 30.05.2006 and another sum of

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RSA No.4423 of 2011 (O&M) [ 2 ]

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vinod kumar 2014.05.15 10:27 I attest to the accuracy and integrity of this document Chandigarh

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`30,000/- was paid to the defendants on 10.01.2005. On 30.05.2006, the plaintiff contacted defendant no.1 and asked him to come present in Tehsil office for the purpose of execution and registration of the sale deed on 31.05.2006 as 30.05.2006 was a holiday being Maharana Partap Jayanti. On 31.05.2006, the plaintiff remained present in the office of Sub Registrar with the balance sale consideration but the defendant did not turn up and he got his attendance marked by way of an affidavit duly attested by the Executive Magistrate.

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On the other hand, defendant no.1 has alleged that he had never executed any agreement to sell on 23.06.2004 and in case any such agreement is there, it is forged and fabricated document. He denied to have obtained 2,00,000/- as advance or received 30,000/- by way of cheque, rather it is alleged that he had received a sum of 30,000/- which he had returned with interest. He also alleged that market value of the suit land is not less than 70,00,000/- per acre which could not have been sold at the rate mentioned in the agreement to sell.

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On the pleadings of the parties, following issues were framed by the Trial Court:-

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“1. Whether the defendant Raj Singh has entered into an agreement to sell the land regarding his share for sale consideration as mentioned in plaint and he received earnest money to the tune of `2,00,000/-?OPP.

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If issue no.1 is proved, whether the plaintiff is

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RSA No.4423 of 2011 (O&M)

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[ 3 ]

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vinod kumar 2014.05.15 10:27 I attest to the accuracy and integrity of this document Chandigarh

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entitled for a decree of possession by way of specific performance?OPP.

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Whether the present suit is not maintainable in the present form?OPD.

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Whether the plaintiff has suppressed the material facts from the court?OPD.

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Whether the plaintiff has no cause of action and locus-standi to file the present suit?OPD.

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Relief.”

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In order to prove his case, the plaintiff examined himself as PW1, Ajay Kumar, Assistant Manager, Oriental Bank of Commerce, Murthal, as PW2, Suresh Kumar as PW3, Ramesh S/o Ram Mehar as PW4, Dharambir Shivach, Handwriting and Fingerprint Expert, Jind as PW5 and tendered into evidence agreement to sell (Ex.P1), receipt (Ex.P2), extension of the agreement (Ex.P3), affidavit (Ex.P4), jamabandi for the year 20002001 (Ex.P5), expert report (Ex.PW-5/A), photographs (Ex.PW-5/B-1 to Ex.PW-5/B-17), negatives (Ex.PW-5/C-1 to Ex.PW-5/C-17), copy of the Collector rate (Ex.PA) and sale deed (Ex.P8).

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On the other hand, defendant Raj Singh appeared as DW1 and also examined his wife Meena Kumari as DW2.

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The suit of the plaintiff was decreed by the Trial Court on 21.09.2010 and the appeal was dismissed by the lower Appellate Court on 09.08.2011. The observations made by the lower Appellate Court needs to be mentioned, which reads as under:-

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RSA No.4423 of 2011 (O&M)

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“12. The moot question before the court is whether the appellant executed an agreement Ex.P1 for sale in favour of the respondent No.1 agreeing to sell the suit land to respondent no.1 and respondent No.1 was ready and willing to perform his part of contract qua the agreement Ex.P1 and the agreement Ex.P1 is legally enforceable document or not?

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Respondent No.1 examined himself as RW-1 and his support he examined Suresh Kumar PW-3 and Ramesh S/o Ramehar PW-4 being marginal witness to the agreement Ex.P1 and receipt Ex.P-2. Suresh Kumar PW-3 on the suggestion of the appellant stated the stamp paper on which agreement Ex.P1 was reduced in the writing was brought by the appellant as he went in his presence to get the same and the contents of agreement Ex.P1 was read over and explained to the parties and appellant put his signature as well as thumb impression on it thereafter, similar, is the version of Ramesh PW-4. Appellant appeared into the witness box as DW-1, he denied his thumb impression and signature on agreement Ex.P1 and Ex.P2, whereas he had already admitted the same in his written statement that he had borrowed Rs.60,000/- from the respondent No.1 and as security respondent No.1 obtained thumb impression and signatures on the blank papers. In this way, keeping in view admission of the appellant, coupled with the handwriting and finger print expert report Ex.P5/A respondent No.1 has been able to prove on the record the agreement of sale Ex.P1 and receipt Ex.P2 are bearing the thumb

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RSA No.4423 of 2011 (O&M)

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impression as well as signature of the appellant. The science of thumb impression is an absolute science. Appellant signs in Hindi. It means he knows up to some extent reading and writing. The agreement Ex.P1 and receipt Ex.P2 both are in Hindi. Question arises when the appellant knows reading and writing to some extent, then why he put his thumb impressions and signature on agreement Ex.P1 and receipt Ex.P2 and endorsement qua extension of time Ex.P3 for execution and registration of sale deed without going through the contents of the same. By giving cursory look to these documents with bare eyes, it is absolutely clear the signature and thumb impression were not obtained on the blank paper, rather, these were obtained after typing the material on the same. Receipt Ex.P-2 bear one revenue stamp and this again shows the revenue stamp was not affixed later on after obtaining the thumb impression or signature of the appellants on the revenue stamp affixed on receipt Ex.P2. Its half portion is bearing the signature and thumb impression of the appellant and remaining half is on the paper. It is not a case of the appellant that he handed over revenue stamp to the respondent No.1 after putting his thumb impression and signature. The thumb impression of the appellant on the documents Ex.P1, Ex.P2, Ex.P3 is absolutely same, which he put on the paper sheet when his specific thumb impression was obtained during the pendency of the suit. Ajay Kumar Assistant Manager Oriental Bank of Commerce, Murthal has been examined PW-2 who

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RSA No.4423 of 2011 (O&M)

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brought the summoned record according to which respondent No.1 issued cheque dated 3.1.2005 in favour of the appellant which was received in the bank dated 8.1.2005 and same was cleared. Meena Kumari who is the wife of the appellant stepped into the witness box as DW-2 and she admitted the signature and thumb impression of her husband on document Ex.P1 and Ex.P3. From the material on record respondent No.1 has been able to prove that document Ex.P1 to Ex.P3 are bearing the thumb impression and signature of the appellant. The contents of the same have been proved by respondent No.1 and his witnesses Suresh PW-3 and Ramesh PW-4. Appellant alleged his signatures on these documents Ex.P1 to Ex.P3 were obtained by the respondent while playing fraud upon him as he obtained loan from him and gave blank paper to him as security of the loan after putting thumb impression and signature. The fact of fraud was to be proved by the appellant. Mere denial of contents of documents Ex.P1 and Ex.P2 is not sufficient. The person who takes the plea of fraud is duty bound to prove the fact of fraud in the same manner in which the case of criminal liability is proved. The mere absence of the signature of the respondent No.1 on the receipt Ex.P2 or non disclosure of the name of the scribe in the agreement Ex.P1 or by the witnesses is no ground to presume that the sale agreement Ex.P1 is surrounded by suspicious circumstances. This fact has rightly been observed by the Court below and on this point this court find nothing wrong with

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RSA No.4423 of 2011 (O&M)

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the view of ld. Trial court. Admittedly, respondent No.1 is property dealer. There is no cogent and convincing evidence of record that he is habitual cheater. Every case has its on facts and he being property dealer can not be disbelieved as pleaded by the appellant.

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The appellant has not been able to prove that he borrowed Rs.60,000/- from the respondent No.1. Respondent no.1 has been able to prove receipt Ex.P2 vide which he paid earnest money of Rs.2 lacs to the appellant. He also paid Rs.30,000/- as additional amount of earnest money to the appellant through cheque and the receipt of payment of Rs.30,000/- through bank has not been disputed by the appellant, despite that respondent No.1 examined Ajay Kumar PW2 an Assistant Manager Oriental Bank of Commerce, Murthal. It is own case of the appellant that he handed over, blank paper after putting signature and thumb impression to the respondent No.1 in lieu of loan of Rs.60,000/-. It is not his case that he had paid back Rs.60,000/- to the respondent No.1. No document to prove this fact produced on record by the appellant.

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The agreement Ex.P1 is legally enforceable document. Appellant was competent to enter into agreement Ex.P1. This court find no force in the arguments advanced by ld. Counsel for the appellant that other co-sharers in the joint khewat are not joined as party in the suit. Neither, their consent on the agreement Ex.P1 was obtained. Appellant sold his share only out of the joint holding

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RSA No.4423 of 2011 (O&M)

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therefore, he was not required the consent of other co-sharers in the joint holding, nor, he required consent of other co-sharers on the agreement Ex.P1 and the view of this court is fully supported by the law cited by the counsel for the respondent No.1 in 2008(4) Recent Civil Reports 426 (P&H) Swaran Singh Vs. Bagga Singh. In fact, the appellant agreed to sell the suit land for total consideration of Rs.6,50,000/- to respondent No.1. As per agreement Ex.P1 last date of registration of the sale deed was 22.12.2004 and later on it was mutually extended up to 30.5.2006. Meanwhile, land prices increased, this fact is proved from the own suggestion of the appellant to the respondent No.1 at page 3 in the course of his crossexamination and due to increase in the land price greed crept in the mind of the appellant and he failed to perform his part of agreement Ex.P1 with in stipulated period of time.

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Whether the respondent No.1 was ready and willing to perform his part of contract qua agreement Ex.P1? Initially, 22.12.2004 was fixed as last date of the execution and registration of the sale deed. Later on it was mutually extended vide Endst. Ex.P3 made on agreement Ex.P1 and consequently, last date of execution and registration of the sale deed was 30.05.2006. On 30.05.2006 was declared holiday on account of “Anniversary of Maharana Partap” and this fact has not refuted by the appellant. On 31.05.2006, the next working day, respondent No.1 appeared before SubRegistrar concerned and in order to mark his

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RSA No.4423 of 2011 (O&M)

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presence he got his affidavit Ex.P4 attested from the Sub-Registrar concerned. This fact makes amply clear on the record the respondent No.1 has been ready and willing to perform his part of contract and even if he was not willing then on appearance in the court the Appellant could offer him that he was also ready and willing to perform his part for contract but instead of showing his willingness he denied the execution of agreement of sale Ex.P1 in favour of the respondent No.1. Once the appellant denied execution of agreement and receipt Ex.P1, then it can not be inferred that the respondent No.1 was not ready and willing to perform to his part of contract qua agreement Ex.P1.”

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Counsel for the appellant has vehemently argued that the plaintiff has been indulging in this type of activities of preparing false and fabricated agreement to sell and has been involved in similar type of litigation with other persons as well. In order to substantiate his arguments, he has filed CM No.12773-C-2011 under Order 41 Rule 27 CPC to tender, by way of additional evidence, certified copy of the judgment and decree passed in Civil Suit No.433 of 2005 titled as “Ramesh Kumar S/o Rattan Singh v. Ramesh S/o Shri Ram Chander”. It is also argued that there is a discrepancy in the statement of the witnesses who have alleged that the agreement was written in hand, whereas it has been typed.

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On the other hand, counsel for the plaintiff has submitted that the present case has to be decided on its own facts in which defendant no.1appellant has flatly denied to have executed the agreement to sell, whereas

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vinod kumar 2014.05.15 10:27 I attest to the accuracy and integrity of this document Chandigarh

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RSA No.4423 of 2011 (O&M)

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the agreement to sell is in Hindi and it is signed by him in Hindi. It is further submitted that the appellant cannot be allowed to take the plea that his signatures were obtained on some documents which were not known to him.

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Having heard learned counsel for the parties and after examining the record, I am of the considered opinion that there is no error in the judgment and decree of both the Courts below while decreeing the suit of the plaintiff and uphold the finding recorded by the lower Appellate Court in para nos.12 and 13 of its judgment which has already been reproduced in earlier part of this judgment.

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Even if the application filed by the appellant for additional evidence is allowed and the judgment rendered against the plaintiff in other case is taken on record, it would not advance the case of the defendantappellant because every case has to be decided on its own facts and in the present case, defence of the appellant that he had not executed the document cannot be believed because of the evidence led by the plaintiff.

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Thus, finding no merit in the present appeal, the same is hereby

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dismissed.

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(RAKESH KUMAR JAIN) JUDGE

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May 05, 2014 vinod*

Raj Singh v. Ramesh Kumar and Ors.

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Raj Singh v. Ramesh Kumar and Ors.

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