Rsa No.5121 of 2011 (Oandm) Vs. Samarjit Singh - Court Judgment

RSA No.5121 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.5121 of 2011 (O&M) Date of decision:

13. 09.2013 Major K.S. Sharma ......Appellant(s) Versus Samarjit Singh ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sudhir Aggarwal, Advocate for the appellant. Mr. A.K. Jain, Advocate for the respondent. Rakesh Kumar Garg, J.

(Oral) This is defendant's second appeal challenging the judgments and decrees of the Courts below whereby suit of the plaintiff-respondent for possession by way of specific performance of the agreement to sell dated 11.6.1998, was decreed. As per the averments made in the suit, the defendant- appellant entered into an agreement to sell dated 11.6.1998 in respect of House No.17-P, Urban Estate, Gurgaon measuring 500 sq. yards at the rate of Rs.2,000/- per sq.yards for a total sale consideration of Rs.10 lacs. The defendant-appellant received Rs.50,000/- as earnest money and target date for execution of the sale deed was fixed as 30.12.1998. It is the further case of the plaintiff-respondent that the defendant-appellant had received Rs.9 lacs i.e. Rs.4,50,000/- in cash on 14.2.1997, Rs.2,00,000/- on 1.8.1998, Rs.1,00,000/- each through Cheque No.084280 and Cheque No.084283 dated 24.10.1998 and receipt dated 24.10.1998. The plaintiff- respondent was in possession of the house in dispute being tenant earlier Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5121 of 2011 (O&M) 2 to the agreement to sell. As per the terms and conditions of the agreement, he was authorized to make renovation of the house in question and also to get the house transferred in the name of his nominee or himself. The appellant submitted an application for permission to transfer the house in question in the name of the plaintiff-respondent. During this period, the price of the house increased. The plaintiff-respondent paid the balance sale consideration to the defendant-appellant. However, the appellant delayed the matter. Ultimately, the plaintiff-respondent got his presence marked in the office of Sub Registrar, Gurgaon on the stipulated date. It was further averred that the plaintiff-respondent was and is ready and willing to perform his part of the contract on payment of remaining sale consideration. However, the appellant failed to perform his part of the contract. Hence, necessity arose to file the instant suit. The defendant-appellant filed written statement raising various objections and denied all material allegations of the plaint and also sought relief of permanent injunction by way of counter claim that he neither entered into any agreement to sell nor received any amount. The plaintiff- respondent had procured his signatures and fabricated false and forged documents and on the basis of those documents, he was threatening to transfer the electric, water and sewerage connections in his name. It was further averred that the defendant-appellant neither received any cheque nor executed any receipt and receipt if any, with the plaintiff-respondent, was forged and fabricated. It is the further case of the appellant that the plaintiff-respondent in collusion with attesting witnesses had fraudulently forged his signatures and have committed an offence for which they are liable to be prosecuted. The house in question was rented out to one Shamsher Singh son of Dhan Singh, resident of village and Post Office Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5121 of 2011 (O&M) 3 Bilaspur, Tehsil and Distt. Gurgaon, on 15.11.1991 @ Rs.1700/- per month vide rent agreement dated 14.11.1991. The appellant had asked him to vacate the house in dispute on account of non-payment of rent since 1.4.1996. The said Shamsher neither paid the rent nor vacated the house in dispute but inducted the plaintiff-respondent unauthorizedly in the house in question without his knowledge and consent. The appellant filed a suit for possession by way of ejectment of Shamsher Singh along with recovery of Rs.61,200/- as rent and the same is pending. He had not moved any application for permission to transfer the house in question in favour of the plaintiff-respondent and thus, no agreement was signed or executed, so question of execution of sale deed does not arise. Dismissal of the suit was prayed for and it was further prayed that counter claim be decreed. The plaintiff-respondent filed replication to the written statement of the appellant controverting the averments of the written statement and reiterated that of the plaint. On the pleadings of the parties, the following issues were framed by the trial Court:

“1. Whether the defendant agreed to sell the property in dispute to the plaintiff vide agreement to sell dated 11.6.98 for a sale consideration of Rs.10,00,000/- as alleged?. OPP2 If issue No.1 is proved, whether the plaintiff has been ready and willing to perform his part of agreement?. OPP3 If above issues are proved, whether the plaintiff is entitled to a decree for specific performance of agreement to sell in question?. OPP Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5121 of 2011 (O&M) 4 4. Whether the plaintiff has got no locus standi to fle the present suit?. OPD5 Whether the defendant is entitled to a decree for permanent injunction against the plaintiff as prayed for?. OPD6 Relief.”

. Thereafter, both the parties led evidence in support of their respective case. The trial Court, after hearing learned counsel for the parties, and going through the evidence available on the file, decided issues No.1 to 3 and 5 in favour of the plaintiff-respondent and found issue No.4 agaisnt the defendant being not pressed. Resultantly, the suit of the plaintiff decreed and counter claim was dismissed vide judgment and decree dated 5.8.2009. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the defendant filed an appeal before the First Appellate Court which was also dismissed vide impugned judgment and decree dated 29.8.2011. Still not satisfied, the defendant has filed the instant appeal challenging the judgments and decrees of the Courts below. In support of the appeal, learned counsel for the appellant has vehemently argued that the Courts below have erred at law while holding the alleged agreement to sell as a genuine document. According to the counsel for the appellant, the Courts below have misread, misinterpreted and miscontrued the agreement Ex.P-1. It is submitted that in the terms and conditions of the agreement, it is stated that the first party has Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5121 of 2011 (O&M) 5 received Rs.50,000/- as earnest money and the balance price shall be paid by the second party within six months. This clause itself shows that prior to the execution of the alleged agreement, no amount was paid by the respondent to appellant and in Clause (iii), it is mentioned that Rs.4,50,000/- was paid to the appellant on 14.2.1997 i.e prior to the execution of the agreement and further it is stated that first party has received Rs.2,00,000/- in cash on 1.8.1998 and this Clause itself shows that the alleged agreement is forged and fabricated one, because at one stage, it is mentioned that only Rs.50,000/- was paid and the balance will be paid within six months and in the later part, it is mentioned that Rs.4,50,000/- were paid on 14.2.1997. Thereafter, it has been mentioend that Rs.2,00,000/- have been received by the appellant on 1.8.1998 i.e. on a date which was yet to come because the respondent has alleged that the agreement was executed on 11.6.1998. So, in these circumstances, it cannot be believed that the agreement dated 11.6.1998 is a genuine agreement. It is the further case of the appellant that the Courts below have not appreciated the fact that the respondent has failed to prove the alleged agreement dated 11.6.1998 by leading cogent evidence. The alleged agreement was not scribed by the deed writer rather it was got typed by a typist. Neither the said typist was examined nor the stamp vendor from whom the stamp papers were purchased was examined. To prove the said agreement, only one witness was examined in affirmative evidence and the same was not sufficient to prove the alleged agreement. Moreover, the respondent has failed to prove the receipt regarding the balance part payment. It is the further case of the appellant that the plaintiff has to stand on his own legs and to prove his case, he has to lead evidence in Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5121 of 2011 (O&M) 6 affirmative whereas, in the instant case, the plaintiff-respondent has failed to lead evidence in the affirmative to prove the document in question. In that situation, such document cannot be held to be proved against the appellant. It is the further case of the appellant that suit could not have been decreed on the basis of a judgment passed under Section 13 of the Rent Act in a petition filed by the appellant against the respondent and thus, the following substantial questions of law arise in this appeal:

“1. Whether a relief of specific performance can be granted specifically when the payment of earnest money and other amount is not proved?.

2. Whether the finding of a Court in a rent petition is binding on the Civil Court in a suit for specific performance with regard to the agreement to sell?.

3. Whether the plaintiff who has sought relief for specific performance is not required to prove the agreement to sell by leading cogent evidence?.

4. Whether a bare perusal of agreement Ex.P1 itself does not show to be a fabricated document specifically a date of payment of Rs.2 Lakhs has been shown which is yet to come?.

5. Whether the finding of both the learned Courts below is not based upon the misreading and misinterpreting the evidence led by the parties?.

6. Whether the alleged agreement to sell dated 11.6.1998 does not require registration Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5121 of 2011 (O&M) 7 under Section 17(1)(b) of the Registration Act?.”. However, on behalf of the respondents, the learned counsel has vehemently argued that the Courts below on appreciation of evidence have recorded a concurrent finding in favour of the plaintif-respondent with regard to the due execution of the agreement in question and the appellant has miserably failed to prove the fraud, as alleged by him, and therefore, no fault can be found with the findings of the Courts below and the instant appeal is liable to be dismissed. I have heard learned counsel for the parties and perused the impugned judgments and decrees of the Courts below. At the outset, it may be noticed that the agrement in question has been proved by the plaintiff-respondent who has also examined both the attesting witnesses of the agreement. It may further be noticed that the payment made to the appellant to the tune of Rs.9,00,000/- including the cheques also stands proved on record of the case. Moreover, in the proceedings initiated by him under Section 13 of the Rent Act for ejectment of one Shamsher Singh, the appellant has failed and the said petition was dismissed by the Rent Controller observing that the averments made in the said application regarding giving the house to one Shamsher Singh by the appellant are found to be false. Even the second application filed against the plaintiff-respondent was dismissed by the Rent Controller holding that after execution of the agreement to sell, there exists no relationship of landlord and tenant between the parties. On the facts and circumstances, as placed before this Court, it can easily be inferred that the agreement to sell was entered into, payment was received and nothing incriminating has come out during the cross-examination of the witnesses. Though the appellant has alleged fraud against the plaintiff-respondent, Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5121 of 2011 (O&M) 8 however, till date he has not initiated any proceedings against the respondent for the alleged forgery or fraud committed against him. Although the appellant has taken a defence that the document in question is the result of fraud and fabrication but neither the facts of the alleged fraud have been pleaded nor proved which must be established beyond reasonable doubt. It is well settled that if a fraud is being pleaded, the particulars necessary for establishing the fraud should be stated in pleadings and the person who pleads such fraud, has to prove the same by leading evidence. In the instant case, the submission of the learned counsel for the appellant that fraud stands proved from the various clauses of the agreement, as noticed in the earlier part of the judgment, is not enough to succeed as the plaintiff-respondent has successfully explained the execution by various documents executed by the appellant on various stages. In fact, no serious attempt has been made on behalf of the appellant before this Court with regard to the factum of plaintiff-respondent making the payment of Rs.9 lacs to the appellant, as alleged by him. Another argument of the appellant to the effect that findings of the Rent Controller cannot be made basis for decreeing the instant suit is noticed only to be rejected as the plaintiff-respondent has proved the instant case in his favour by leading evidence and the Courts below have taken the aforesaid factum of findings of the Rent Controller against the appellant as an additional fact. Moreover, counsel for the appellant could not dispute before this Court that the plea taken by the appellant in the rent proceedings to the effect that the respondent is a tenant, has not found favoured. Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.5121 of 2011 (O&M) 9 No other point has been raised. Thus, in view of the aforesaid discussion, this Court finds that there is no merit in the arguments raised on behalf of the appellant and resultantly, no substantial question of law arises in this appeal which warrants interference of this Court in exercising its jurisdiction under Section 100 CPC. Dismissed. September 13, 2013 (RAKESH KUMAR GARG) ps JUDGE Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh