The High Court · 2010

Briefly, the case of plaintiff respondent before the trial Court was that the appellant who was owner of the suit land executed an agreement to sell dated 28.5.1999 for a total consideration of Rs.2,44,000/- and received a sum of Rs.1,90,000/- as part payment from him at the time of execution of the agreement. The balance sale price amounting to Rs.54,000/- was agreed to be paid by the plaintiff-respondent to the appellant at the time of execution and registration of the sale deed which was to be executed on or before 14.6.2000. It was the further case of respondent No.1 that the appellant had put his thumb impressions on the aforesaid agreement admitting the same to be correct in the presence of RSA No.526 of of 2010 2 witnesses, and it was further agreed between the parties that in case of default on the part of the appellant, he will pay double the amount of the earnest money to the plaintiff-respondent and he may also get the sale deed executed through Court. The possession of the suit land remained with the appellant though it was recited in the agreement that possession was given to respondent No.1. It was further averred by respondent No.1 that he was always ready and willing to perform his part of the contract. He remained present on 14.6.2000 in the office of Sub Registrar,Sunam, to perform his part of the contract, but the appellant did not turn up. Respondent No.1 served a notice on 18.12.2000 upon the appellant. He put off the matter on one pretext or the other. It was the further case of respondent No.1 that appellant sold the land in dispute to respondent No.2 vide sale deed dated

24.4.2000, which was illegal, null and void. Respondent No.2 was well within the knowledge of the agreement between the parties with regard to the suit land. The said sale deed had no effect on the rights of respondent No.1 and the same was liable to be set aside. On 1.2.2001 and 5.2.2001 the plaintiff again approached the defendants but they refused to execute the sale deed in favour of the plaintiff, the present suit was filed. Appellant and respondent No.2(defendants) appeared and contested the suit by filing separate written statements. Appellant in his written statement while raising various legal objections submitted on merits that the alleged agreement to sell was forged and fabricated document and he never entered into the alleged agreement to sell nor the earnest money ofRs.1,90,000/- was received by him. It was further averred that in fact respondent No.1 was a commission agent through whom he used to sell his agricultural produce and it may be possible that his thumb impressions RSA No.526 of of 2010 3 were secured by respondent No.1 on blank papers on which he might have forged the agreement. It was admitted that the suit land was sold by him to respondent No.2 which was legal and valid. Other averments were denied. Dismissal of the suit was prayed. Respondent No.2 (defendant No.2) in his written statement submitted that he had purchased the suit land from the appellant and the vendees were in possession thereof and this fact was in the knowledge of respondent No.1(plaintiff). A false story was concocted by respondent No.1. There was no entry in the revenue record with regard to the agreement in question. It was further averred that he purchased the suit land from the appellant after making due inquiries of the ownership and checking the revenue record and he was a bona fide purchaser. Rest of the averments made in the plaint were denied and the prayer for dismissal of the suit was sought. framed:- On the pleadings of the parties, the following issues were

1.Whether the defendant No.1 executed agreement dated

28.5.98 in favour of the plaintiff qua the suit land and received a sum of Rs.1,90,000/- from him as earnest money ?OPP

2.Whether the sale deed dated 24.4.2000, executed by defendant No.1 in favour of defendant no.2 is illegal, null and void and is liable to be set aside ?OPP

3.Whether the plaintiff has been and is ready and willing to perform his part of agreement ?OPP

4.Whether the plaintiff is entitled to decree of specific performance of agreement dated 28.5.98 ?OPP

5.Whether the plaintiff is entitled to recover a sum of Rs.2,44,000/- in the alternative as damages for breach of agreement dated 28.5.98 from defendant no.1 ?OPP RSA No.526 of of 2010 4

6.Whether the plaintiff has no locus standi and cause of action to file the suit ?OPD

7.Whether the suit is bad for mis-joinder and non-joinder of parties ?OPD

8.Whether the suit is not maintainable in the present form ? OPD

9.Whether the plaintiff is estopped by his act and conduct from filing the suit ?OPD

10.Whether the defendant no.2 is bona fide purchaser for value without notice and his interest is protected under section 40 of the Transfer of Property Act ?OPD

11.Relief On the basis of the evidence led by the parties, the trial Court decided issue No.1 against the plaintiff-respondent observing that execution of the agreement Ex.P5 was not proved beyond suspicion. Under issue No.2, it was held that respondent No.2 purchased the suit land from the appellant after making due inquiries in good faith and he was a bona fide purchaser. Issues No.3 to 5 were decided against the plaintiff- respondent. . As a cumulative result of the findings returned on the issues, the suit of the plaintiff-respondent was dismissed. Feeling aggrieved from the judgment and decree of the trial Court, plaintiff-respondent filed an appeal before the lower Appellate Court. The lower Appellate Court reversed the finding on Issues No.1,3 and 5 in favour of the plaintiff-respondent and accepted the appeal. While setting aside the judgment and decree of the trial Court, a decree was passed for alternative relief of the recovery of Rs.1,90,000/- i.e. refund of earnest money with interest at the rate of 12% per annum from the date of institution of the suit till the date of decree with future interest at the rate of RSA No.526 of of 2010 5 6% from the date of decree till its realization. It may be pointed out that while accepting the appeal, the lower Appellate Court on re-appraisal of evidence found that the evidence led by the plaintiff-respondent with regard to his having proved the execution of the agreement to sell was not rebutted by the appellant and there was no evidence led by the appellant to support his assertion that when he was to settle his accounts with regard to the agricultural produce sold by him, his thumb impressions were obtained by the plaintiff- respondent. The lower Appellate Court also found that plaintiff-respondent was ready and willing to perform his part of the contract. However, the lower Appellate Court further found that respondent No.2 was a bona fide purchaser for valuable consideration and without notice. Lower Appellate Court in view of its finding to the effect that respondent No.2 was a bona fide purchaser held that plaintiff-respondent was not entitled to the decree for specific performance of the agreement to sell in question and the alternative relief of recovery of the earnest money was granted in his favour. Feeling not satisfied with the judgment and decree of the lower Appellate Court, appellant (defendant No.1) has filed the present appeal challenging the impugned judgment and decree of the lower Appellate Court. Learned counsel for the appellant has vehemently argued that the finding of the lower Appellate Court to the effect that agreement to sell in question stands proved are erroneous as the document expert produced on the record has not compared the thumb impressions of the appellant on the photograph affixed on the said agreement and on the reverse side of the stamp paper and therefore, it cannot be said that the agreement in question RSA No.526 of of 2010 6 duly stands proved. Moreover, there was ample evidence to support the version of the appellant that plaintiff might have obtained his thumb impressions on some blank papers as he used to sell his agricultural produce to him, and in view of the discrepancies in the evidence on record, the agreement in question cannot be said to be probed into, and, therefore, the judgment of the lower Appellate Court is liable to be set aside. On the basis of the aforesaid submissions, learned counsel for the appellant has submitted that the following substantial questions of law arise in this appeal:-

1. Whether the impugned judgment and decree dated 20.8.2009 is perverse,patently illegal, arbitrary, ignoring the pleadings and evidence of the parties and without application of judicial mind and as such is not sustainable at law ?

2. Whether respondent No.1/plaintiff has proved the due execution of the agreement to sell ?

3. Whether the learned lower Appellate Court is justified in decreeing the suit of respondent No.1/plaintiff on the ground of weakness the defence of the appellant/defendant No.1 ?

4. Whether the agreement to sell in question is a sham transaction ? I have herd the learned counsel for the appellant and perused the impugned judgment and decree passed by the lower Appellate Court. The pith and substance of of the submissions made by the learned counsel for the appellant is that the agreement in question has not been proved due to the discrepancies established on the record as agreement Ex.P5 is shown to be affixed with the photographs of the appellant and the same was purported to be thumb marked by him and his thumb impressions appeared both on the photograph and on the stamp paper but the plaintiff RSA No.526 of of 2010 7 respondent had not got the aforesaid thumb impression compared with the standard thumb impressions of the appellant and, therefore, the agreement to sell in question was not proved. The argument raised by the learned counsel for the appellant is without any substance. Admittedly there were other three thumb impressions of the appellant on the agreement to sell in question which were duly proved by the document expert by his report. Thus, in the face of this unrebutted fact it cannot be said that the agreement in question was not proved. Moreover, the lower Appellate Court on re-appraisal of evidence on record has recorded a finding of fact that agreement in question stood proved from the statements of plaintiff-respondent, scribe, and marginal witnesses of the agreement. The lower Appellate Court also observed that except a bald statement made by the appellant that his thumb impressions used to be obtained by the plaintiff-respondent at the time of settling the accounts regarding the sale of agricultural produce was not sufficient to discharge the onus upon him to rebut the execution of the agreement to sell in question. No cogent evidence led by the appellant to prove his assertion. Thus, the finding of the lower Appellate Court on the issue of proving the document in question cannot be held to be perverse being based either on no evidence or misreading of evidence. Thus, in these circumstances, no fault can be found with the judgment and decree of the lower Appellate Court which requires interference in exercise of the jurisdiction of this Court under Section 100 of the Code of Civil Procedure. RSA No.526 of of 2010 8 No substantial question of law arises in this appeal No merit. Dismissed. ( Rakesh Kumar Garg ) Judge February 5, 2010