Pritam Kaur v. Joginder Singh

CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Vikram Bali, Advocate, for the appellant. Gurdev Singh, J (oral) The appellant/defendant – Pritam Kaur, has preferred this second appeal against the judgment and decree dated 13.5.2010 passed by Additional District Judge, Patiala, vide which he dismissed the appeal preferred by her against the judgment and decree dated 13.6.2009 passed by Civil Judge (Jr. Division) Rajpura, in the suit of the respondent/plaintiff – Joginder Singh for specific performance of the agreement. The case of the plaintiff, as pleaded in the plaint, is that the defendant agreed to sell the land in dispute measuring 9 bighas 18 biswas, being 1/9th share out of 26 bighas 3 biswas of land, situated in revenue estate of Village Alimajra Tehsil Rajpura vide agreement dated 23.11.1998 for `1,08,750/- and received `20,000/- as earnest money/advance sale consideration. The sale deed was to be executed and got registered on or before 22.11.2001. He always remained ready and willing to perform his part of the contract and was ready with the balance sale consideration of `88,750/-. On 22.11.2001, he remained present in the office of Sub R.S.A. No. 4250 of 2010 (O&M) -2- Registrar, along with the balance sale consideration and the other expenses required for execution and registration of the sale deed, but the defendant did not turn up. About his presence he got attested affidavit. He also served registered notice dated 4.12.2001 through his counsel upon the defendant, but he failed to execute the sale deed in his favour. The suit was contested by the defendant. In her statement, she denied all the contentions of the plaintiff and inter alia pleaded that the agreement is false and fictitious and is the result of fraud. Previously, one Sardar Singh filed civil suit against him, which was dismissed as withdrawn on 12.8.1999. There was dispute between the plaintiff and Arjan Singh etc. regarding which DDR No.7 dated 10.9.1999 was got lodged in the police post Shambu. A compromise was entered into in that DDR and it was mentioned therein that the suit land shall be divided to the extent of ½ share each. However, the plaintiff prepared a false and frivolous agreement, which has no value in the eyes of law. The suit is not legally maintainable. In the replication to the written statement, the plaintiff denied all the contentions raised therein and reiterated his averments made in the plaint. On the pleadings of the parties, following issues were framed by the learned trial Court:- 1) Whether the defendant entered into an agreement to sell the land on 23.11.1998 and received earnest money from the plaintiff?OPP 2) Whether the plaintiff is ready and willing to perform his part of agreement?OPP R.S.A. No. 4250 of 2010 (O&M) -3- 3) Whether the plaintiff is entitled for specific performance of the agreement to sell?OPP 4) Whether the plaintiff is entitled for permanent injunction prayed for?OPP 5) Whether the suit is not legally maintainable?OPD 6) Whether the plaintiff has not come to the Court with clean hand?OPD. 7) Whether the plaintiff is estopped from filing the suit by way of his act and conduct?OPD. 8) Relief. To succeed in the suit the plaintiff examined himself as PW4, Sewa Singh PW1, Gurdial Singh PW2 and Mehanga Singh PW3. On the other hand, the defendant entered the witness box as DW-1 and examined Bhupinder Singh DW2 and Arjan Singh DW3. After going through that evidence and hearing learned counsel for both the sides, learned trial Court decided all the issues in favour of the plaintiff and resultantly decreed the suit. The defendant preferred the first appeal which was dismissed by the Additional District Judge, Patiala, as aforesaid. I have heard learned counsel for the appellant/defendant. It has been submitted by learned counsel for the defendant that no evidence was produced by the plaintiff that he was ready with the sale consideration and in the absence of that evidence, it could not have been concluded that he always remained ready and willing to perform his part of the contract and the decree for specific performance could not have been R.S.A. No. 4250 of 2010 (O&M) -4- passed. He also submitted that the contradictory evidence was produced by the plaintiff and it can easily be inferred from those contradictions that the agreement put forward by him is false and fabricated document. According to him those contradictions are:- i) It was put to the defendant that the endorsement of the stamp vendor on the back of the agreement bears his thumb impression and that also purports to bear the thumb impression of the defendant, which itself suggests that the stamp paper was purchased by the defendant. But the plaintiff stated in his statement that the stamp paper was so purchased by him; ii) The plaintiff stated in the Court that he got attested affidavit regarding his presence in the office of the Sub Registrar from the Sub Registrar himself, whereas that affidavit purports to bear attestation of Oath Commissioner and not that of the Sub Registrar. Merely in view of these two contradictions, it cannot be concluded, in view of the trust worthy and reliable evidence produced by the plaintiff, that the agreement is false or fabricated document. For proving the due execution of the agreement the plaintiff not only examined himself, but also the attesting witness thereof and both of them deposed in their affidavits that this agreement was read over to the defendant and he had put his thumb impressions after admitting the same to be correct. No doubt the defendant stated in the Court that the agreement does not bear his thumb impression, but in view of the trust worthy evidence produced by the plaintiff both the lower Courts rightly placed no reliance on the evidence of R.S.A. No. 4250 of 2010 (O&M) -5- the plaintiff. The defendant had the later opportunity and could have got compared his admitted thumb impression with the alleged thumb impression on the agreement from some document expert, but failed to do so. Concurrent findings were recorded by both the lower Courts and it cannot be said that those findings are perverse or are the result of misreading of the evidence. The other argument of the learned counsel for the defendant is devoid of merit. The plaintiff specifically deposed, while making statement before the trial Court, that he had gone to the office of the Sub Registrar with the balance sale consideration and other amount for meeting the expenses of the registration etc. He was not at all cross-examined regarding that part of statement, which means that the defendant admitted that part of his statement to be correct. When such is the position, it cannot be said that the plaintiff has failed to prove that he was ready with the balance sale consideration. No substantial question of law arises in the present appeal and the same is dismissed accordingly. November 16, 2010 tripti (Gurdev Singh) Judge