Jagdish v. Vijay

Hon'ble Mr. Justice L.N. Mittal Present : Mr. R.K. Malik, Advocate, for the appellants Mr. RK Dahiya, Advocate, for respondent no. 1 L.N. Mittal, J. (Oral) Defendants no. 2 to 4 have preferred the instant second appeal having remained unsuccessful in both the courts below. Vijay Singh respondent no. 1 filed suit against Gori proforma respondent no. 2/defendant no. 1 and against the appellants for possession of suit land by way of specific performance of agreement to sell dated

16.6.1997. Plaintiff's case is that defendant no. 1 Gori was owner in possession of the suit land measuring 5 kanals and agreed to sell the same to the plaintiff at the rate of Rs 70,000/- per acre and received Rs 20,000/- as earnest money vide agreement and receipt dated 16.6.1997. Sale deed was to be executed on 16.7.1997 and balance sale consideration of Rs 23,750/- was to be paid at that time. On 16.7.1997, plaintiff attended the office of Regular Second Appeal No. 1072 of 2008 -2- the Registrar to get the sale deed registered as per agreement but defendant no. 1 did not turn up. Defendant no. 1 in his written statement admitted that he had agreed to sell the suit land to plaintiff vide agreement dated 16.6.1997. Defendant no. 1 however pleaded that prior to this agreement, he had agreed to sell the suit land to defendant nos. 2 to 4/appellants vide writing dated

16.3.1997 in Bahi and this fact was made known by defendant no. 1 to the plaintiff at the time of agreement dated 16.6.1997. However, in spite thereof, the plaintiff agreed to purchase the suit land. Defendant no. 1 also alleged that he received Rs 5000/- only as earnest money from the plaintiff. Defendant no. 1 also pleaded that in terms of prior agreement dated

16.3.1997 he had already sold the suit land to defendant nos. 2 to 4 vide sale deed dated 23.6.1997. Defendant nos. 2 to 4 in the written statement pleaded that they are bonafide purchasers of the suit land for consideration. Agreement dated 16.6.1997 in favour of the plaintiff was denied. Defendant nos. 2 to 4 also pleaded prior agreement dated 16.3.1997 in their favour. Learned Additional Civil Judge (Senior Division), Kaithal vide judgment and decree dated 9.3.2005 decreed the suit of the plaintiff. First appeal preferred by defendant no. 2 to 4 has since been dismissed by learned District Judge, Kaithal vide judgment and decree dated 23.1.2008. Feeling aggrieved, defendant nos. 2 to 4 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that Regular Second Appeal No. 1072 of 2008 -3- there was prior agreement dated 16.3.1997 in favour of the appellants and the said agreement was in the knowledge of the plaintiff when agreement dated 16.6.1997 was executed in his favour. In this context, learned counsel for the appellants referred to statement of Sat Parkash Bhalla PW1, Deed Writer who scribed agreement dated 16.6.1997 and statement of Mange Ram PW2, a marginal witness of agreement dated 16.6.1997. The aforesaid contention although apparently attractive is completely devoid of substance. Agreement dated 16.3.1997 Ex. D1 in Bahi has been fabricated by defendant nos. 2 to 4 in collusion with defendant no. 1 and alleged scribe and witnesses thereof. Gorkha DW3 is scribe of the said writing. He stated that he had not scribed any other document prior to document Ex. D1. There is no reason why the agreement was not executed on a stamp paper as required by law. There is also no explanation why the agreement was not scribed by a document writer. The Bahi in which the document Ex. D1 has been scribed does not have any such other document or writing. Such a writing in the Bahi of the appellants themselves could be created at any time. There is nothing on the record about the authenticity thereof. In addition to the aforesaid, according to Gorkha DW3 who scribed writing Ex. D1 and also according to Ramesh Chand defendant no. 2 while appearing as DW4, no earnest money was paid at the time of writing Ex. D1. Ramesh Chand also stated that the entire sale consideration was paid at the time of sale deed Ex. D2. However, sale deed Ex. D2 recites that the entire sale consideration had been paid to vendor defendant no. 1 in advance. It would depict that no sale consideration ever exchanged hands Regular Second Appeal No. 1072 of 2008 -4- between defendant no. 1 and defendant nos. 2 to 4. The earnest money was neither paid at the time of writing Ex. D1 as per testimony of Ramesh Chand defendant no. 2 himself. Sale consideration was also not paid at the time of sale deed Ex. D2 as per contents thereof. It is, thus, apparent that writing Ex. D1 and sale deed Ex. D2 are fictitious documents and therefore, defendant nos. 2 to 4 cannot be said to be bonafide purchasers of the suit land for consideration. In addition to the aforesaid, it is also worth noticing that Gorkha DW3 stated that at the time of writing Ex. D1, there was no jamabandi of the suit land and details of khasra numbers of suit land were not mentioned in writing Ex. D1. It is also significant to notice that in sale deed Ex. D2, no reference has been made to agreement or writing Ex. D1. It would again depict that writing Ex. D1 was not in existence when sale deed Ex. D2 was executed and subsequently writing Ex. D1 was fabricated and was ante- dated. Defendant no. 2 as DW4 and Attar Singh Lambardar DW1 attesting witness of the sale deed stated that the sale consideration was paid before the Sub Registrar at the time of registration of the sale deed. However, contents of the sale deed belie this assertion as according to the sale deed, the entire sale consideration already stood paid in advance and no amount was paid before the Sub Registrar. Even DW2, Deed Writer who scribed sale deed stated that at the time of execution of the sale deed, defendant no. 1 admitted that entire sale consideration had been paid in advance. From the aforesaid, it would become quite manifest and apparent that documents Ex. D1 and D2 are fictitious documents. No sale Regular Second Appeal No. 1072 of 2008 -5- consideration was paid to defendant no. 1 by defendant nos. 2 to 4 for purchase of the suit land. Writing Ex. D1 has been created subsequently and has been ante-dated. It is consequently apparent that defendant nos. 2 to 4 cannot be said to be bonafide purchasers of suit land for consideration. On the other hand, agreement dated 16.6.1997 in favour of the plaintiff stands admitted by vendor defendant no. 1 himself. The same has also been proved by witnesses. The courts below have, therefore, rightly decreed the suit of the plaintiff. There is no infirmity much less illegality or perversity in the concurrent finding recorded by the courts below. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed. March 05, 2010 'tiwana' ( L.N. Mittal ) Judge