Budh Ram v. Rajender & Ors.

CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.R.M. Singh, Advocate for the appellant. Mr.Naveen Kaushik, Advocate for the respondents. RAKESH KUMAR JAIN, J. **** The defendant is in second appeal against the judgment and decree of both the Courts below by which suit of the plaintiff for possession by way of specific performance has been decreed. Briefly, the plaintiff filed suit for possession by way of specific performance of an agreement to sell dated 27.02.2003 by which the defendant had agreed to sell the land in dispute to the plaintiff for a sale consideration of Rs.1,10,000/- after receiving Rs.50,000/- towards earnest money. The sale deed was agreed to be executed on or before 13.06.2003 on the payment of remaining sale consideration of Rs.60,000/-. Plaintiff has claimed that he came present in the office of Sub-Registrar, Nuh on 13.6.2003 and got his presence marked from the Registrar but the defendant did RSA No.1259 of 2009 (O&M) - 2 - not turn up to get the sale deed executed. The plaintiff had sent a legal notice to the defendant calling upon him to execute the sale deed in terms of the agreement. The plaintiff asked the defendant several times to execute the sale deed but he had become dishonest and refused to perform his part of the contract, therefore, the present suit was filed. The case set up by the defendant is that the plaintiff and defendant had purchased tractor in partnership and the plaintiff had mortgaged his land. The defendant paid the loan amount of Rs.1,35,000/- as a major part of the loan but after that a dispute arose between them which was taken up before the Panchayat in which it was decided that defendant will mortgage his land with plaintiff for a sum of Rs.40,000/- as surety. The plaintiff, by playing fraud got written the alleged agreement to sell in which Rs.50,000/- has been shown as earnest money. On the pleadings of the parties, following issues were framed: “ 1. Whether the defendant being owner in possession of land mentioned in para No.1 of the plaint, entered into an agreement to sell dated

27.2.2003 with the plaintiff? OPP.

2. Whether the defendant took an amount of Rs.50,000/- as earnest money from the plaintiff? OPP. RSA No.1259 of 2009 (O&M) - 3 -

3. Whether a decree possession by way of specific performance of contract dated

27.2.2003 is liable to be passed in favour of the plaintiff against defendant, on the grounds mentioned in the plaint? OPP

4. Whether the suit of the plaintiff is not maintainable? OPD.

5. Whether the plaintiff has concealed the true and material facts from the Court and if, its effect? OPD.

6. Whether the plaintiff has no cause of action to file the present suit? OPD.

7. Relief.” Both the Courts below decreed the suit of the plaintiff as the agreement to sell has been found to have been duly executed. The defence taken by the appellant was not found to be logical because the story put forward was not believed. It was observed that in case major part of the loan was repaid by the defendant then it was the defendant who was to get the amount back from the plaintiff and therefore, there was no occasion for him to mortgage the suit property to the plaintiff. The Court has also found that there is no record to show that the tractor has RSA No.1259 of 2009 (O&M) - 4 - been purchased jointly by the plaintiff and defendant. It was also observed that agreement (Ex.P-1) reflects that stamp papers were purchased by defendant/appellant himself for the purpose of executing agreement to sell in favour of the plaintiff in view of the endorsement on the back of the stamp paper. The defendant has also admitted, while appearing as DW-1, that he had purchased the stamp papers for agreement to sell (Ex.P-1). In nutshell, it has been found by the Courts below that the agreement was duly executed at the instance of the defendant and the defence set up by him was not plausible. Learned counsel for the appellant, while making a feeble attempt to assail the judgment and decree of both the Courts below has argued that the suit has been filed at the fag end of the period of limitation, therefore, the plaintiff was not ready and willing to purchase the suit property as he was not having sufficient amount of the balance sale consideration. In response to this argument, learned counsel for the respondent has submitted that the plaintiff was always ready and willing to perform his part of the contract which is apparent from the fact that he was present before the Sub Registrar, Nuh on

13.6.2003 when the sale deed was to be executed and got his presence marked but the defendant did not turn up. Thereafter, much time was consumed on the false assurance given by the defendant but ultimately he became dishonest and refused to execute the sale deed. Therefore, it was submitted that this plea cannot be taken by the defendant/appellant when the plaintiff was ready and willing to perform his part of contract. It is also RSA No.1259 of 2009 (O&M) - 5 - submitted that it is a case of total denial on the part of defendant that no agreement to sell was executed but once the agreement to sell (Ex.P-1) has been proved on record from the evidence and facts and circumstances, the defendant cannot raise the plea of readiness and willingness of the plaintiff. I have heard learned counsel for the parties and have perused the record with their assistance. No doubt that the defendant totally denied execution of agreement to sell which has been proved, as a matter of fact, before both the Courts below and the defendant has failed to challenge the said findings. Once agreement to sell has been proved, especially when it has been totally denied, the defendant cannot take the plea that the plaintiff was not ready and willing if he had filed the suit towards the fag end of the limitation especially when the plaintiff had appeared before the Sub Registrar on the day fixed for execution of the sale deed and marked his presence. Thus, in view of the above discussion, I do not find any question of law much less substantial involved in this appeal in terms of Section 100 of the Code of Civil Procedure, 1908 (for short ‘CPC’). Hence, the present appeal is dismissed with costs.

02.07.2010 Vivek (RAKESH KUMAR JAIN) JUDGE