Kashmir Singh & Ors. v. Narinder Kumar & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. D. S. Pheruman, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : This is second appeal by legal representatives of defendant no.1 Arjan Singh – since deceased (appellants no.1 and 2) and by defendant no.2 Harjit Singh (appellant no.3). Narinder Kumar – respondent no.1 filed suit for possession of suit land measuring 16 kanals by specific performance of the agreement to sell dated 19.12.1994. The plaintiff alleged that Arjan Singh – defendant no.1 entered into the impugned agreement dated 19.12.1994 for sale of the suit land to the plaintiff for total consideration of Rs.1,60,000/- and received Rs.30,000/- as earnest money. Out of the balance sale price, a sum of Rs.1,10,000/- was to be retained as mortgage money for payment to the R. S. A. No. 950 of 2010 2 mortgagee and the remaining amount of Rs.20,000/- was to be paid to the vendor defendant no.1 at the time of execution of sale deed, which was to be executed up to 31.01.1995. The plaintiff always remained ready and willing to perform his part of the contract, but defendant no.1 committed breach thereof. In fact, defendant no.1 executed sale deed dated

14.02.1995 in favour of his own grandson Harjit Singh – defendant no.2 to defeat the agreement in favour of the plaintiff. Legal representatives of defendant no.1 denied the allegations of the plaintiff and pleaded that the alleged agreement, if any, is null and void and result of collusion and conspiracy. Defendant no.1 never received any money from the plaintiff. On the other hand, defendant no.1 agreed to sell the suit land to defendant no.2 vide agreement dated 17.09.1994 @ Rs.90,000/- per acre and pursuant thereto, defendant no.1 executed sale deed dated 14.02.1995 in favour of defendant no.2. Defendant no.2 also filed separate, but similar written statement. Defendant no.3 was proceeded ex-parte in the trial court. Learned Additional Civil Judge (Senior Division), Batala, vide detailed judgment and decree dated 22.12.2005, decreed the plaintiff's suit. First appeal was preferred by defendant no.2 Harjit Singh only. Learned Additional District Judge, Gurdaspur, vide judgment and decree dated

05.11.2009, dismissed the said appeal. Feeling aggrieved, the instant second appeal has been preferred not only by defendant no.2, but also by legal R. S. A. No. 950 of 2010 3 representatives of defendant no.1, who had not challenged the judgment and decree of the trial court by filing first appeal. I have heard learned counsel for the appellants and perused the case file. At the outset, it has to be noticed that instant second appeal on behalf of appellants no.1 and 2 is not maintainable because they had not preferred first appeal against judgment and decree of the trial court. Learned counsel for the appellants vehemently contended that impugned agreement in favour of plaintiff is not proved. The contention cannot be accepted. Both the courts below, on appreciation of evidence, have concluded that agreement dated 19.12.1994 in favour of the plaintiff is fully proved. The said finding is a finding of fact. Court of first appeal is the final Court of fact. The aforesaid finding of fact is not shown to be perverse or illegal so as to warrant interference in second appeal. In addition to the aforesaid, the plaintiff led sufficient and cogent evidence to prove his case. The plaintiff examined scribe of the agreement and both marginal witnesses of the agreement as witnesses, besides himself entering into the witness-box. One attesting witness of the agreement is Lambardaar of plaintiff's village, whereas other attesting witness of the agreement is Sarpanch of village of defendant no.1 vendor. All the witnesses have supported the plaintiff's case. There is no reason Lambardaar of plaintiff's village and Sarpanch of village of R. S. A. No. 950 of 2010 4 defendants no.1 and 2 themselves would depose against the defendants. The plaintiff could not possibly lead any other evidence to prove his agreement. Learned counsel for the appellants emphasized that defendants have examined handwriting expert, who has opined that disputed signatures of defendant no.1 on the impugned agreement are not of the same person, who signed sale deed dated 14.02.1995 (Ex.D-1). However, this evidence of handwriting expert is not sufficient to rebut the plaintiff's direct and cogent reliable evidence. Both the courts below have analyzed the evidence in detail and have rightly come to the conclusion that agreement in favour of plaintiff stands proved. It has also to be noticed with significance that case of the appellants is full of dishonesty. In order to defeat the claim of the plaintiff under agreement, defendant no.1 executed sale deed dated 14.02.1995 in favour of his own grandson. This conduct itself shows the dishonesty of the defendants-appellants. Moreover, defendants pleaded that defendant no.1 had entered into agreement dated 17.09.1994 to sell the suit land to defendant no.2 @ Rs.90,000/- per acre. However, the said agreement has not been proved. Moreover, if this version of the defendants is taken to be true, sale price of two acres of suit land comes to Rs.1,80,000/- @ Rs.90,000/- per acre. However, sale deed Ex.D-1 in favour of defendant no.2 has been executed for total consideration of Rs.80,000/- only. There cannot be any better proof of dishonesty of the defendants. In addition R. S. A. No. 950 of 2010 5 thereto, Kashmir Singh – appellant no.1 stated in the witness-box that no agreement had been entered into at all before execution of sale deed in favour of defendant no.2. It again shows to what extent the defendants can go to defeat the rights of the plaintiff. The defendants set up agreement dated 17.09.1994 allegedly executed by defendant no.1 in favour of defendant no.2. It has also to be noticed with significance that the suit land was under mortgage for Rs.1,10,000/-. However, in sale deed Ex.D-1 executed by defendant no.1 in favour of defendant no.2, there is not even a reference to the mortgage money. It is thus manifest that the defendants conspired and came out with a dishonest version and procured sale deed Ex. D-1 from defendant no.1 in favour of defendant no.2 to dishonestly defeat the rights of the plaintiff. Learned counsel for the appellants contended that in the impugned agreement, there is a condition that in the event of breach of the agreement, plaintiff shall be entitled to double the amount of earnest money paid by him. However, merely on the basis of this condition, the plaintiff cannot be denied the relief of specific performance of the agreement. In fact, ordinarily, in case of agreement to sell immovable property, relief of specific performance of the agreement should be granted so that the parties remain bound to honour the agreement entered into by them. For the reasons recorded herein above, I find no illegality in the impugned judgments of the courts below. No interference is warranted in R. S. A. No. 950 of 2010 6 second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely bereft of any merit and is accordingly dismissed in limine. May 25, 2010 monika ( L. N. MITTAL ) JUDGE