Judgment:
Rakesh Kumar Jain, J.
1. The defendant is in Regular Second Appeal against the judgment and decree dated May 27, 2000, passed by first Appellate Court, vide which the suit of the plaintiff (Siri Ram), was decreed reversing the judgment and decree dated February 15, 1997, passed by the trial Court.
2. In brief, facts of the case are that the plaintiff filed a suit for specific performance alleging therein that defendant No. 1 had entered into an agreement dated November 20, 1986 to sell gair mumkin gatwar for a consideration of Rs. 1,400/- and had received Rs. 900/- at the time of agreement. The balance amount of Rs. 500A was agreed to be paid at the time of registration of the sale deed before the Sub Registrar, Pataudi, District Gurgaon, on September 25, 1987. It was further pleaded that on September 25, 1987, the plaintiff went with ready money to Tehsil Pataudi but the defendant did not turn up. He then made an application to the Sub Registrar, Pataudi to the effect that he had come prepared for execution of sale deed, but the defendant was absent. It was claimed that he was always ready and willing to perform his part of the agreement, but defendant No. 1 has avoided the execution of the sale deed. The plaintiff, thus prayed for a decree for specific performance of contract of sale dated November 20, 1986 qua the property in question. On December 15, 1990, the plaintiff moved an application under Order 6 Rule 17 of C.P.C. for amendment of the plaint alleging that due to over-sight, he could not take an alternative plea in the prayer clause to the effect that' 'after the words sale deed, or in the alternative a decree for the recovery of Rs. 900/- along with usual rate of interest and damages suffered by the plaintiff may kindly be granted in favour of the plaintiff and against the defendant'. This application was allowed vide order dated April 08, 1991 subject to payment of Rs. 100/- as costs. Pursuant to that, the plaintiff filed amended plaint dated May 11, 1991 with an alternative prayer mentioned herein above.
3. The suit was contested by defendant No. 1. He denied the ownership of the land in question. Rather, it was pleaded that the plot belongs to his son Manbir Singh, who is living separately from him since 1973. It was also pleaded that the plot was purchased by said Manbir Singh, Chhattu and Raja Ram and defendant No. 1 had no right or concern with the plot in question, therefore, he could not have entered into an agreement to sell as alleged by the plaintiff. On merits, the defendant denied the execution of the agreement, and also claimed that the agreement, if any, might be a product of misrepresentation.
4. Defendant No. 2 also filed separate written statement and denied the sale in his favour by defendant No. 1. Rather, it was claimed that he had purchased the plot measuring 60' x 15', bearing boundaries different than the one claimed by the plaintiff in the agreement to sell, from defendant No. 1 vide sale deed dated January 17, 1992 for a consideration of Rs. 7,000/- which does not form part and parcel of the land in dispute.
5. The plaintiff filed replication and reiterated the stand taken in the plaint.
6. On the pleadings of the parties, the trial Court framed the following issues:
1. Whether defendant No. 1 is owner of gair mumkin gatwar detailed in para No. 1 of the plaint? OPP
2. Whether defendant No. 1 made an agreement of sale gair mumkin gatwar as mentioned above on 20.11.1986 with the plaintiff for a consideration of Rs. 1,400/-? OPP
3. Whether plaintiff has been willing and ready to perform his part of contract? OPP
4. Whether the defendant No. 1 during the pendency of the suit has sold a portion of suit property to defendant No. 2 to defraud the plaintiff? OPP
5. Whether suit is bad for mis-joinder and non-joinder of necessary parties as plot belonging to Manbir Singh, Chhatu and Raja Ram? OPD
6. Whether plaintiff is estopped by his own act and conduct etc., to file the present suit? OPD
7. Whether suit is not maintainable in the present form? OPD
8. Whether suit is not within limitation? OPD
9. Whether suit is not properly valued for the purposes of Court fee and jurisdiction? OPD
10. Whether plaintiff has no locus standi to file the present suit and cause of action against defendant No. 2? OPD
11. Whether the plot purchased by defendant No. 2 from defendant No. 1 is a different property then the suit property as alleged? OPD
12. Relief.
7. The plaintiff Siri Ram son of Ganga Sahai, examined himself as PW1, Om Parkash as PW-2, Bishamber Dayal as PW-3 and another Om Parkash as PW-4 in oral evidence and placed on record agreement to sell Ex.P-1 and application given to Sub Registrar as Ex.P-2. On the other hand, defendant/ appellant examined two witness i.e. Shiv Charan as DW-1 and Siri Ram as DW-2 respectively in their oral evidence and also placed on record sale deed Ex.DW2/A, site plan with the sale deed Ex.DW2/B and site plan Ex.DW2/C. The plaintiff did not lead any evidence in rebuttal.
8. The trial Court decided both issue Nos. 1 and 2 against the plaintiff. Under Issue No. 1, it was decided that since the defendant had made a statement on oath that the suit property is owned by Manbir Singh, it was for the plaintiff to prove ownership of the defendant, since he has failed to lead any evidence in this regard, therefore, this issue was decided against him. In so far as issue No. 2 is concerned, the trial Court held that the defendant has denied the execution and his signatures on the agreement in question, the burden was shifted to the plaintiff to prove that the agreement was executed by defendant No. 1 and the signatures on the agreement were of the defendant. Except for oral statements of the witnesses, no other evidence was led, specially the signatures of defendant No. 1 on the agreement Ex.P-1 were not proved by getting them compared by a handwriting expert. The trial court also found that the attesting witnesses of the agreement could not be examined because they had died. In the absence of any cogent evidence on record, it was held that the agreement Ex.P-1 was not executed by the defendant. Consequently, the suit was dismissed.
9. The first Appellate Court, while deciding issue No. 1 held in para 20 of the judgment as under:
Admittedly, defendant Shiv Charan during the pendency of the suit had sold a plot measuring 60' x 15' shown in map Exhibit PW2/C, which is towards Eastern side of the suit plot. There is no dispute that defendant Shiv Charan is owner of whole of the plot, out of which a portion was sold to Siri Ram defendant No. 2. Admittedly, it is an open land. It is in the 'Abadi' of the Village. Just adjoins the remaining open land of the defendant Shiv Charan including the portion sold to defendant Siri Ram. In absence of any specific reliable or trustworthy evidence, suit plot would deem to be of the defendant Shiv Charan.
10. Besides the above findings, the first Appellate Court has also observed that the defendant had pleaded in the written statement that the plot in question was owned by his son Manbir Singh and two others, but he did not lead any evidence in this regard. On these premises, the first appellate Court reserved the findings of the trial Court and held that defendant No. 1 was owner of the land in dispute.
11. In respect of the agreement to sell, the first Appellate Court held that although the attesting witnesses i.e. Lambardar Jugti and Hari Bhagwan had died, yet the plaintiff had examined Bishamber Dayal PW-3, who is son of Jugti and he had identified signatures of his father on the agreement to sell Ex.P-1 and Om Parkash, brother of Hari Bhagwan as PW-4, who also had identified signatures of Hari Bhagwan, therefore, execution is proved. The first Appellate Court also observed that the signatures of Shiv Charan/Defendant on the agreement to sell Ex.P-1 also tally with the signatures on the written statement as well as on his evidence when he appeared as DW-1.
12. I have heard Mr. Sudhir Aggarwal, learned Counsel for the appellant and have perused the record.
No one has put in appearance on behalf of the respondent.
13. At the time of admission of this appeal, following substantial question of law was framed by this Court:
Whether plaintiff/respondent has been able to prove ownership of the defendant/appellant as well as execution of the agreement to sell dated 20.11.1986?
14. Admittedly, defendant No. 1 had denied his ownership on the land in dispute in his written statement, therefore, the onus of proof was placed by the trial Court upon the plaintiff to prove this fact. No cogent evidence has been led by the plaintiff to prove this fact, as such the trial Court decided this issue against the appellant, but the first Appellate Court on a presumption, declared the defendant to be the owner on the ground that defendant No. 1 had sold a plot measuring 60' x 15', which is towards eastern side of the plot which adjoins the remaining open land of defendant No. 1, and held that in the absence of any specific, reliable or trust worth evidence, the suit plot would be deemed to be that of defendant Shiv Charan. This finding, in my view, is conjectural and title of the immovable property cannot be decided on conjectures and surmises. The plaintiff, who had filed a suit for specific performance was required to prove with cogent evidence the. ownership of defendant No. 1 on the plot in dispute in affirmatives. Admittedly, the burden of proof was on the plaintiff to prove Issue No. 1. It is well settled that the plaintiff had to stand on his own legs to prove his case by leading cogent and convincing evidence admissible in evidence to succeed in his claim and he can not take the benefit of the weakness of the case of the defendant. In this regard, learned Counsel for the appellant has also referred to a decision of this Court in Lajpat Rai v. Smt. Vidya Wati (1997-3) 117 P.L.R. 126. Therefore, findings recorded on issue No. 1 by the lower appellate Court are reversed and that of the trial Court are restored.
15. So far as issue No. 2 is concerned, defendant Shiv Charan had categorically stated in the written statement that he had not signed the agreement in question. He had also stated on oath that the agreement to sell Ex.P-1, does not bear his signatures. Burden of proof was again on the plaintiff to prove the agreement. The efforts have been made to prove the signatures of attesting witnesses by producing their relatives, but no evidence was led to prove the signatures of defendant No. 1 on the agreement in question through the hand writing expert. In the absence of any cogent evidence in this regard, burden of proof placed upon the plaintiff has not been discharged in accordance with law. Although the Courts below on self examination of the signatures have opined that these belong to defendant No. 1. Be that as it may, once finding on issue No. 1 is reversed to the effect that when defendant No. 1, is not proved to be the owner of the property in dispute in accordance with law, his agreement, even if proved to be executed by him, is meaning less because of the settled law that the vendor of property can not pass title on the vendee better than he himself has in the property. In this regard reliance can been placed on the decision of this Court in the case of Pal Singh v. Uma Mehta 2 (1997-1)115 P.L.R. 80 and Lajpat Rai's case (supra). Since, defendant No. 1 is not proved to be the owner of the land in dispute, discretionary relief of specific performance cannot be granted in favour of the plaintiff and the suit so far as the prayer is concerned, is dismissed.
16. Resultantly, the present appeal is allowed and the judgment and decree of the first Appellate Court is set aside with costs.