Sohrab v. Tek Chand

CORAM: HON'BLE MR. JUSTICE L.N.MITTAL Present: Mr.Lokesh Sinhal Advocate for the appellant. Mr.Vikas Kumar Advocate for the respondent. L.N.Mittal,J.(Oral) * * * Sohrab-defendant has filed the instant second appeal. Respondent-Tek Chand filed civil suit for possession of the suit land by specific performance of agreement to sell dated 22.03.2000 alleging that defendant vide aforesaid agreement agreed to sell the suit land measuring 23 kanals 7 marlas being half share of 46 kanals 15 marlas land for Rs.2,70,000/- and received Rs.1,20,000/- as earnest money. A sum of Rs.80,000/- was to be retained by the plaintiff for redemption of mortgage of the suit land which stood mortgaged in favour of plaintiff brother Raj Kumar. Balance sale of the consideration of Rs.70,000/- was to be paid at the time of execution and registration of the sale deed for which, the last date was stipulated to be 15.02.2001. The plaintiff always remained ready and willing to perform his part of contract but the defendant committed breach thereof. The defendant inter-alia pleaded that he had taken a loan of Regular Second Appeal No.3357 of 2009 (O&M) 2 Rs.80,000/- from the plaintiff and as security for the same, mortgage deed of the suit land was got executed in favour of plaintiff's brother. The defendant never agreed to sell the suit land nor executed the agreement. The defendant returned the mortgage amount of Rs.80,000/- with interest to the plaintiff on 22.03.2000 and asked the plaintiff to execute receipt for the same and to get the mortgage deed cancelled. For this purpose, the plaintiff took the defendant and witnesses to Tehsil premises at the seat of Deed Writer and by playing fraud, the plaintiff instead of executing receipt and cancellation of mortgage deed, succeeded in obtaining the impugned agreement to sell. Learned Civil Judge (Jr.Divn.), Ferozepur, Jhirka vide judgment and decree dated 24.11.2008 dismissed the suit of the plaintiff. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Nuh vide judgment and decree dated 11.05.2009. Feeling aggrieved, the defendant has preferred the instant appeal. I have heard the learned counsel for the parties and perused the case file. Execution of the agreement has been proved by the plaintiff by himself entering into the witness box and by examining Deed Writer, who scribed the agreement and also by examining both the witnesses of the agreement as witnesses. The defendant's plea that the agreement was obtained by fraud is not substantiated at all and inheritently untenable. The defendant's case is that he repaid the mortgage amount to the plaintiff on

22.03.2000 and for the same, the plaintiff was to execute receipt and deed for cancellation of mortgage. If it were so, there was no occasion for the defendant to execute any document or to affix his signature or thump Regular Second Appeal No.3357 of 2009 (O&M) 3 impression on any document or on the impugned agreement. On the other hand, the document, if any, was to be executed by the plaintiff and not by the defendant. Thus, the entire version of the defendant that the agreement was obtained by fraud is completely unreliable and unsustainable. Learned counsel for the appellant vehemently contended that the plaintiff is a money lender and obtained four other agreements dated

14.01.2000, 18.01.2000, 16.02.2000 and 23.03.2000 from different persons. However on the basis of this contention, the impugned agreement cannot be said to be have been obtained by fraud when the said plea of the defendant is not substantiated by cogent evidence. Moreover, out of the four aforesaid agreements, it is stated by learned counsel for the appellant that only three agreements are in favour of the plaintiff whereas, one agreement is in favour of plaintiff's brother. However, the defendant-appellant in the written statement has not pleaded that the plaintiff has been obtaining similar agreements from different persons by playing fraud. Moreover, the aforesaid four agreements are also not shown to have been obtained by fraud. Consequently, it cannot be said that the impugned agreement has been obtained by fraud. Learned counsel for the appellant also contended that market price of the suit land at the time of alleged agreement was around Rs.8 lacs per acre i.e. Rs.24 lacs approximately and therefore, the defendant would not have agreed to sell the suit land for Rs.2,70,000/- only. The contention is completely frivolous and without any substance because no sale instance has been produced in evidence to depict that market price of the suit land at the time of agreement was Rs.8 lacs per acre. Moreover just two months before the impugned agreement,the defendant had admittedly executed Regular Second Appeal No.3357 of 2009 (O&M) 4 mortgage deed of the suit land for Rs.80,000/- only. If the market price of the suit land had been Rs.8 lacs per acre at that time, the defendant would not have mortgaged about 3 acres of land worth Rs.24,00,000/- approximately for mortgage amount of Rs.80,000/- only. It is also worth mentioning, as pointed out by counsel for the plaintiff-respondent, that admittedly, the mortgage deed executed by defendant in favour of plaintiff's brother is dated 18.01.2000 but the defendant in the witness box stated that he had borrowed the mortgage amount of Rs.80,000/- from the plaintiff in March, 1998. It is thus apparent that the defendant's version is unreliable and in fact, the mortgage amount had been advanced not by the plaintiff but by his brother to the defendant. Learned counsel for the appellant also contended that although last date for execution of sale deed as stipulated in the agreement, was

15.02.2001, yet the plaintiff served notice dated 04.10.2002 on the defendant i.e after 20 months. However, merely on this ground, relief of specific performance cannot be declined to the plaintiff particulary because the plaintiff attended the office of Sub Registrar on 15.02.2001 to get the sale deed executed and registered as per terms and conditions of the agreement but the defendant himself did not turn up. The plaintiff filed the suit on 10.01.2003 after serving notice dated 04.10.2002. Accordingly readiness and willingness of the plaintiff to perform his part of the agreement is fully established. For the reasons aforesaid, I find no merit in the instant second appeal. Learned lower Appellate Court has properly appreciated the evidence. Finding recorded by the lower appellate court cannot be said to be perverse or illegal so as to warrant interference in second appeal. No Regular Second Appeal No.3357 of 2009 (O&M) 5 question of law much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed.

30.03.2010 Seema-II (L.N.Mittal) Judge