Judgment:
Mahesh Grover, J.
CM. No. 4535-C of 2009
1. For the reasons stated therein, the application is allowed and nineteen days' delay in the filing of the appeal is condoned.
R.S.A. No. 1514 of 2009
This Regular Second Appeal is directed against judgments and decrees dated 13.11.2007 and 11.11.2008 passed respectively by the Additional Civil Judge (Senior Division), Kurukshetra (hereinafter referred to as 'the trial Court') and the Additional District Judge, Kurukshetra (described hereinafter as 'the First Appellate Court') whereby the suit of the plaintiff-respondent No. 1 was decreed and the appeal filed by the legal representatives of Bachan Singh, appellants herein as well, was dismissed.
2. A suit for specific performance was preferred by respondent No. 1 seeking to enforce agreement to sell dated 19.4.1999 purportedly executed by Bachan Singh. A prayer for permanent injunction as a consequential relief was also made.
3. It was pleaded by respondent No. 1 that Bachan Singh had agreed to sell to him the land measuring 4 kanals comprised in khewat No. 41/34 min, khatoni No. 78, khasra No. 327 min east (4-0) situated in the revenue estate of village Barahan, Tehsil Thanesar vide the aforesaid agreement to sell for a total consideration of Rs. 1,97,500/-. It was further pleaded that a sum of Rs. 25,000/- was received by Bachan Singh as earnest money. According to the terms of the agreement, both the parties had agreed that if Bachan Singh failed to perform his part of contract, then respondent No. 1 will get the sale deed executed and registered through court of law at his expenses and in case, respondent No. 1 failed to get the sale deed executed and registered, the earnest money would be forfeited. The sale deed was to be executed and registered on or before 28.5.1999. It was averred that the balance sale price and other expenses were offered to Bachan Singh but he failed to perform his part of contract. It was further averred that on 28.5.1999, respondent No. 1 remained present in the office of Sub Registrar, Ladwa with balance sale price and other expenses for registration of the sale deed, but Bachan Singh did not turn up. An affidavit was duly sworn in by respondent No. 1 on that date and that is supportive of this fact. It was pleaded that a legal notice was also issued to Bachan Singh; but he failed to execute the sale deed and thereafter, respondent No. 1 came to know that he had sold the land in question to defendant-respondent Nos. 2 & 3 vide registered sale deed dated 30.4.1999 for a sum of Rs. 1,12,500/-, which sale deed was illegal, null & void, inoperative, ineffective, ultra vires and not binding on his rights.
4. Upon notice, Bachan Singh & respondent Nos. 2 & 3 had appeared and filed their separate written statements contesting the suit. In his written statement, Bachan Singh had pleaded that agreement dated 19.4.1999 was a result of fraud. He, however, admitted that the land in question had been sold by him to respondent Nos. 2 & 3 for a total consideration of Rs. 1,12,500/-. He averred that if an agreement was for a higher consideration, there was no occasion for him to sell his land for a lesser price. It was further averred that the land was mortgaged by him with mortgagees-Baldev Singh and Gurbax Singh sons of Nanha Singh and that fact was recorded in the jamabandi for the year 1996-97, but there was no recital of the mortgage in the agreement to sell which shows that the same was a forged document. Bachan Singh had pleaded that even total area of the land has not been given in the agreement to sell and his thumb impression might have been obtained on misrepresentation of facts.
5. In their written statement, respondent Nos. 2 & 3 had pleaded that they were bona fide purchasers of the suit land and that they had purchased the same after examining the revenue record. They averred that respondent No. 1 was estopped by his own act and conduct to file the suit. Agreement to sell dated 19.4.1999 was denied and it was averred that it did not pertain to the suit land. They pleaded that the sale in their favour was protected under the provisions of Section 41 of the Transfer of Property Act.
6. On the basis of the pleadings of the parties, the trial Court framed the following issues:
1. Whether the plaintiff is entitled to decree for possession by way of specific performance of contract deed dated 19.4.1999? OPP
2. Whether the impugned sale deed No. 125/1 dated 30.4.1999 allegedly executed by defendant No. 1 in favour of the defendants No. 2 and 3 is liable to be cancelled and set aside being null, void, illegal, inoperative? OPP
3. Whether the defendants are liable to be restrained from further alienating the suit land to any other person? OPP
4. Whether the suit is not maintainable in the present form? OPD
5. Whether the alleged agreement dated 19.4.1999 is fake and forged on the grounds mentioned in the para No. 1 of the written statement? OPD
6. Whether the defendants No. 2 and 3 are bona fide purchasers of the suit land? OPD
7. Whether the plaintiff has no locus standi to file and maintain the present suit? OPD
8. Whether the plaintiff has no cause of action to file and maintain the suit? OPD
9. Whether the plaintiff is estopped by his own act and conduct from filing the suit? OPD
10. Whether the plaintiff has concealed the true and material facts from this Court? OPD
11. Relief.
7. It is pertinent to mention here that Bachan Singh did not appear thereafter and he was proceeded against ex parte by the trial Court. It appears from the record that he died during the pendency of the suit and his legal representatives were brought on record.
8. After appraisal of the evidence on record, the trial Court concluded that the agreement to sell in favour of respondent No. 1 was valid. It also went on to hold that respondent No. 1 was ready and willing to perform his part of contract and while decreeing the suit in toto, it directed the legal representatives of Bachan Singh to execute and get registered the sale deed on payment of balance sale consideration by respondent No. 1.
9. In appeal, the findings of the trial Court were affirmed by the First Appellate Court.
10. This has resulted in the filing of the instant appeal by the legal representatives of Bachan Singh.
11. The alleged bona fide purchasers of the suit land, i.e., respondent Nos. 2 & 3 have, however, not filed any appeal.
12. Learned Counsel for the appellants has contended that the findings recorded by the Courts below are erroneous. It was argued that the agreement to sell cannot be relied upon for the reason that no details of the land were given which gave rise to a suspicion that it was not a valid deed. It was further argued that the sale price was reflected as Rs. 1,97,500/-, whereas the suit land was sold for a sum of Rs. 1,12,500/-. He submitted that subsequent sale price being less, it is not believable that a person, who is getting better price, would sell his property for a lessor one. It was further submitted that the agreement to sell dated 19.4.1999 was a forged document and the findings of the Courts below are perverse and are liable to be set aside. According to the learned Counsel for the appellants, the following substantial questions of law arise for consideration in this appeal:
1. Whether an agreement to sell sans description of land and surrounded by suspicious circumstances is enforceable under law?
2. Whether non-examination of Deed Writer and non-entrance of the same in the register of the Deed Writer disproves the execution of an agreement?
13. I have thoughtfully considered the contentions of the learned Counsel for the appellant and have gone through the impugned judgments.
14. In a suit for specific performance, the following three essential ingredients necessary have to be proved:
1. that the agreement to sell was validly executed;
2. that there was valid consideration; and
3. that there was willingness and readiness on the part of the vendee to perform his part of agreement.
15. To examine if all the aforesaid three ingredients have been proved, the evidence on record is to be seen. Respondent No. 1 examined Virender Kumar, the attesting witness of the agreement to sell, Exhibit P1, who has appeared as PW1. He testified that the agreement was executed by Bachan Singh in favour of respondent No. 1 to sell his land for a consideration of Rs. 1,97,500/- and Rs. 25000/- were paid as earnest money. He also testified that Singh Ram, who had scribed Exhibit P1, had read over the same to Bachan Singh and papers for the agreement were brought by Bachan Singh himself. PW1 stated that Bachan Singh had put his thumb impression on Exhibit P1 after admitting the same to be correct and his son-Jaspal Singh also put his signatures on it.
16. Respondent No. 1 also produced Shri Jai Narain, Finger Print Expert as PW3. He testified that thumb impression on Exhibit P1 belonged to Bachan Singh.
17. Another attesting witness of Exhibit P1 is Man Singh, who appeared as PW4. He also deposed that he had appended his signatures on Exhibit P1 and Bachan Singh had put his thumb impression thereon in his presence.
18. Apart from the above evidence, Shri Ishwar Chand Saini, Advocate, Notary Public, was also examined as PW5, who stated that he has seen the original agreement to sell, which was attested by him.
19. In this view of the matter, there was sufficient material before the trial Court to come to a conclusion that the agreement, Exhibit P1, had been validly executed and similarly, the passing of a part of sale consideration was also proved.
20. The plea of fraud was raised by Bachan Singh, but no such evidence was led from where it could be inferred that a fraud had been committed upon him.
21. Respondent No. 1 also proved on record his affidavit to show that he was present in the office of Sub Registrar on the date fixed for execution of the sale deed. He also appeared as PW2 and deposed that he was always ready and willing to perform his part of contract. The legal notice was also proved on record. It can, therefore, be safely inferred that respondent No. 1 always remained ready and willing to perform his part of contract.
22. Surprisingly, Bachan Singh or any of his legal representatives did not step into witness box to controvert the case of respondent No. 1.
23. In this view of the matter, I am of the considered opinion that all the three ingredients as stated above stood satisfied and Bachan Singh or his legal heirs failed to substantiate the plea of fraud.
24. Therefore, the questions of law which have been posed by the learned Counsel for the appellants are answered to say that merely because the agreement to sell, Exhibit P1, does not describe the land properly, it would not render it to be a suspicious document if other attending circumstances conclusively point to the execution of the same and in such an eventuality, all the factors have to be considered in their totality to conclude that the agreement was a valid document or not. Likewise, merely because the deed writer was not examined, it would not rob Exhibit P1 of its credibility if there are attending circumstances to show its execution.
25. Accordingly, this appeal is dismissed being devoid of any merit.