Dalip Singh & Ors. v. Anurag & Ors.

deceased), the original defendant No.1, (hereinafter to be referred as “defendant No.1”) is to the judgment and decree dated 11.9.2006, whereby the trial Court decreed the suit for possession by way of specific performance of the contract, filed by Anurag son of Tarshem Chand respondent-plaintiff (hereinafter to be referred as “the plaintiff”) and the judgment and decree dated 17.10.2008, vide which, the Ist Appellate Court has dismissed their appeal as well.

2. As the Courts below duly recapitulated and described the factual matrix of pleadings and evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same. However, the brief facts, relevant for disposal of the present appeal and emanating from the record, are that the plaintiff filed the present suit against the defendant for possession by way of specific Regular Second Appeal No.4229 of 2009 2 performance of the agreement dated 5.12.1997 (Ex.P1), with respect to the land in dispute. The case set up by the plaintiff was that defendant No.1 was the owner of the suit land as a co-sharer and had agreed to sell the same to him (plaintiff) at the rate of Rs.90,000/- per acre. The terms and conditions of the sale were incorporated in the agreement to sell (Ex.P1) and the defendant No.1 received an amount of Rs.80,000/- as earnest money at the time of registration of the agreement to sell before the Sub Registrar. The sale deed was to be executed on or before 28.5.1999 in favour of the plaintiff.

3. Levelling a variety of allegations, in all, according to the plaintiff that he has always been ready and willing to perform his part of contract but the defendant kept on postponing the matter of execution and registration of the sale deed on the one pretext or the other. The defendant refused to execute the sale deed, despite repeated requests and legal notice. On the basis of the detailed allegations contained in the plaint, the plaintiff filed the suit against the defendant, in the manner indicated here-in-above.

4. The defendant No.1 contested the suit and filed the written statement, inter-alia, pleading that the plaintiff was not entitled to the relief of specific performance inasmuch as he was guilty of concealment of material facts. According to the defendant, the plaintiff and his father are the commission agents and are running the business under the name and style of M/s Gupta Trading Company, Commission Agent, Cheeka Mandi. The plaintiff and his father had demanded security from the defendant for securing the arrival of crops at their firm and on this pretext, the defendant was taken to Tehsil premises, Guhla and his thumb impressions were obtained on blank papers as well as on the registers in good faith. The Regular Second Appeal No.4229 of 2009 3 execution of the agreement was denied by defendant No.1. It will not be out of place to mention here that defendant No.1 had stoutly denied all the allegations contained in the plaint and prayed for dismissal of the suit.

5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication.

6. In the wake of the pleadings of the parties, the trial Court framed the following issues for trial:-

1. Whether the plaintiff is entitled to specific performance of agreement to sell dated

5.12.1997?OPP

2. Whether the plaintiff is entitled to possession of suit property?OPP

3. Whether the plaintiff has come to the Court with clean hands and its effect?OPD

4. Whether the suit of the plaintiff is time barred?OPD

5. Whether the agreement is not enforceable?OPD

6. Whether the agreement is the result of fraud and collusion?OPD

7. Whether the answering defendants no.2 to 4 are bonafide purchasers of land measuring 5 kanals and 7 marlas?OPD

8. Whether the suit of the plaintiff is not properly valued?OPD

9. Relief

7. The plaintiff, in order to substantiate his case, produced the oral as well as documentary evidence on record, but no evidence was led by the Regular Second Appeal No.4229 of 2009 4 defendants despite adequate opportunities and their evidence was closed by order dated 16.9.2005 of the trial Court.

8. The trial Court, after taking into consideration the evidence on record, decreed the suit of the plaintiff and defendant No.1 was directed to execute and register the sale deed, in pursuance of the agreement to sell (Ex.P1), after receiving the balance sale consideration, failing which, the plaintiff was held entitled to execute and register the sale deed through Court in execution proceedings, vide impugned judgment and decree dated

11.9.2006.

9. Aggrieved by the judgment and decree of the trial Court, the legal representatives of defendant No.1 filed the appeal, which was also dismissed by the lower Appellate Court, vide impugned judgment and decree dated 17.10.2008.

10. The legal representatives of original defendant No.1 did not feel satisfied with the impugned judgments and the decrees and filed the present appeal.

11. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal.

12. The main argument of the learned counsel for the appellants (LRs of defendant No.1) that as the adequate opportunity to produce the evidence has not been provided to the defendants by the trial Court, therefore, the impugned judgments and the decrees are liable to be set aside, is not only devoid of merit but misplaced as well. The bare perusal of the record would reveal that the application under Order 41 Rule 27 CPC moved by the appellants was contested by the respondent and the first Regular Second Appeal No.4229 of 2009 5 Appellate Court was of the view that sufficient opportunities were granted to defendant No.1 to lead evidence by the trial Court. The evidence of the plaintiff stood concluded on 7.2.2004 and thereafter the case was adjourned to 4.3.2005, 22.4.2005, 21.7.2005 and lastly on 16.9.2005 for evidence of defendants. Hence, more than sufficient opportunities have already been granted to defendant No.1 by the trial Court to produce the evidence, but he has miserably failed in this respect and did not produce any evidence. Meaning thereby, what to talk of producing the evidence, even the defendants did not try to step into the witness box despite adequate opportunities, to rebut the oral as well as documentary evidence brought on record by the plaintiff, for the reasons best known to them. Under such circumstances, it cannot possibly be saith that no adequate opportunity was granted to defendant No.1 to produce the evidence, as urged on his behalf. Thus, the contrary arguments of the learned counsel for the appellants stricto sensu deserve to be and are hereby repelled.

13. Moreover, the trial Court, after scanning the evidence on record in relation to the pleadings of the parties, recorded a finding of fact, which is reproduced as under:- “After going through the oral evidence adduced by the plaintiff, it emerges that defendant has agreed to sell his land measuring 17 kanals 17 marlas i.e. 357/21240 share in total land measuring 107 kanals at the rate of Rs.90,000/- per acre in favour of plaintiff and vide agreement to sell Ex.P1 it was agreed that sale deed was to be executed and registered till 28.5.1999. In the said agreement to sell Ex.P1 it has also been recited Regular Second Appeal No.4229 of 2009 6 that the possession will be given at the time of registration of sale deed in Murba no.91 killa nos.19 and 20 min (3-7). Execution of agreement to sell Ex.P1 has been admitted by plaintiff by producing the attesting witnesses. Moreover, the defendants have not dare to offer them for cross examination by entering into the witness box. Thus, the defendants have not been able to prove the alleged fraud and misrepresentation. It has also come in the evidence that plaintiff appeared before Sub Registrar, Guhla, as is evident from the application/affidavit Ex.P2 and P3. Therefore, from the evidence on record it emerges that plaintiff has been able to prove that in pursuance of agreement to sell Ex.P1 defendant received a sum of Rs.80,000/- and the plaintiff appeared before Sub Registrar, Guhla along with requisite sale consideration and stamp registration charges for getting the sale deed executed and registered in his favour but the defendant did not appear before Sub Registrar, Guhla. Therefore, from the evidence it has to be held that plaintiff has always been ready and willing to perform his part of contract Ex.P1 but the defendant had failed to perform his part of contract. Therefore, the above said issues are hereby decided in favour of the plaintiff. However, it makes clear that plaintiff is not entitled for possession of specific killa number i.e. Regular Second Appeal No.4229 of 2009 7 Murba No.91 killa nos.18, 19 and 20 min (3-7) as the defendants were not in possession over the above said specific killa number and he was in joint possession with other co-sharer. Therefore, plaintiff is also entitled for joint possession along with other co- sharer.”

14. The indicated findings of the trial Court were further upheld by the first appellate Court.

15. All the remaining arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellants, have already been duly considered and dealt with by the Courts below, in this relevant connection.

16. Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the plaintiff in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the concurrent findings of fact that defendant No.1 had agreed to sell the suit land to the plaintiff at the rate of Rs.90,000/- per acre. The terms and conditions of sale were incorporated in the registered agreement to sell (Ex.P1) and defendant No.1 received an amount of Rs.80,000/- as earnest money at the time of registration of agreement to sell before the Sub Registrar and plaintiff was always ready and willing to perform his part of the contract but defendant No.1 has failed in this respect. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, Regular Second Appeal No.4229 of 2009 8 the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of the well reasoned decision already arrived at by the Courts below, in this regard.

17. Meaning thereby, the entire gamut/matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments/decrees of the Courts below, as contemplated under section 100 CPC, in the obtaining circumstances of the instant case .

18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants.

19. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed, with no order as to costs. (Mehinder Singh Sullar) Judge

29.6.2010 AS