R.S.A. No.2635 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.2635 of 2009 Date of decision:16.07.2009 Zile Singh ......Appellant Versus Dharampal and another ......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Parveen Hans, Advocate for the Appellant. RAJIVE BHALLA, J. The appellant challenges, the judgments and decrees dated 8.09.2004 and 13.02.2009, passed by the Civil Judge (Senior Division), Bhiwani and the Additional District Judge, Fast Track Court, Bhiwani, decreeing the suit, filed by the respondents and dismissing the appeal filed by the appellant. The plaintiff-respondents filed a suit for possession by way of specific performance of an agreement to sell dated 10.01.2000, whereby the appellant agreed to sell land measuring 5 kanals situated in village Sidhan, Tehsil Tosham, District Bhiwani, for a consideration of Rs. 62,500/-. A sum of R.S.A. No.2635 of 2009 2 Rs.50,000/- was allegedly paid as earnest money and it was agreed that the sale deed would be executed on 30.06.2000. The date for execution of the sale deed was extended to 15.09.2000 and thereafter, to 5.10.2000. On 5.10.2000, the plaintiff-respondents visited the office of the Sub Registrar, Tosham, with the remaining sale consideration and other incidental expenses. The appellant however, did not turn up to execute the sale deed. The plaintiff-respondents marked their presence with the Executive Magistrate, Tosham, and thereafter, served a legal notice dated 12.10.2000, calling upon the appellant to execute a sale deed. In response to the submissions in the plaint, the appellant denied the execution of the agreement to sell, the receipt of any earnest money and asserted that the agreement was a fabricated document. The appellant pleaded that the suit land was mortgaged with a Bank. The respondents offered to redeem the mortgage provided the appellant agreed to mortgage the land with them. The appellant accepted this offer and accompanied the respondents to Tosham, where he was served liquor and his thumb impressions were obtained on blank papers on the pretext that they were required for redeeming the land from the bank. It was further pleaded that the appellant's wife has filed a complaint before Superintendent of Police, Bhiwani, with respect to this fraud. The respondents filed a replication, reiterating the averments in the plaint and denying the averments in the written statement. On the basis of the R.S.A. No.2635 of 2009 3 pleadings, the learned trial court framed the following issues: “1. Whether the defendant entered into an agreement to sell the suit land dated 10.1.2000, for a consideration of Rs.62,500/- with the plaintiffs?OPP 2. Whether the defendant has received a sum of Rs.50,000/- towards earnest money?OPP 3. Whether the defendant has refused to get the sale deed executed in favour of the plaintiffs?OPD 4. Whether the suit of the plaintiffs is wrong and incorrect facts?OPD 5. Whether the plaintiffs have no right to file the present suit?OPD 6. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the learned trial court decreed the suit for specific performance by holding that the respondents had proved the agreement dated 10.01.2000, the payment of earnest money of Rs.50,000/- and the fact that they were ready and willing to execute the sale deed. The trial court rejected the appellant's defence that his thumb impressions had been obtained on a blank paper on the pretext that they were required R.S.A. No.2635 of 2009 4 for redeeming the mortgage. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal, the Additional District Judge, Bhiwani, vide judgment and decree dated 13.02.2009, dismissed the appeal and affirmed the findings recorded by the trial Court. Counsel for the appellant submits that the courts below committed an error in rejecting the appellant's assertion that his thumb impressions were obtained on blank papers, while he was under the influence of liquor. The courts below have failed to appreciate the appellant's plea of fraud and forgery and his assertion that he never received Rs. 50,000/- as earnest money. The courts below disregarded the fact that the agreement is not scribed on a stamp paper and the name of the attesting witness Shishpal appears in hand whereas, the agreement is a typed document. It is further argued that as the agreement is witnessed by a single witness, it violates the provisions of Section 3 of the Transfer of Property Act and should therefore, have been rejected. The absence of any receipt evidencing the payment of earnest money and the failure of the scribe to refer to any corresponding entry in his register clearly discloses that the agreement is a forged document. The courts below have disregarded the fact that the agreement reflects a sale price far below the market value. It is prayed that in view of the aforementioned arguments the impugned judgments be set aside. R.S.A. No.2635 of 2009 5 I have heard counsel for the appellant, perused the impugned judgments and considered the ten questions of law stated to be substantial questions of law which read as follows: “1. Whether to obtain a decree for specific performance, it is necessary to have a valid contract? 2. Whether according to Section 20 of the Specific Relief Act, jurisdiction to decree the specific performance of the contract is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so? 3. Whether the enforcement of specific performance of a contract can be refused, if it causes great hardship to either of the parties? 4. Whether the enforcement of specific performance of the contract can be refused, if it is not fair and is one sided? 5. Whether an agreement to sell requires attestation of at least two witnesses according to Section 3 of the Transfer of Property Act, 1882 and according to Section 68 of the Indian Evidence Act, 1872, its execution is to be proved by the attesting witnesses? R.S.A. No.2635 of 2009 6 6. Whether the scribe of the deed can be called as an attesting witness? 7. Whether it is necessary to read over and explain the recitals of the deed to an illiterate person? 8. Whether an agreement to sell which is not registered, is admissible in evidence? 9. Whether mere admission of signatures proves the the execution of the document? 10. Whether a fraudulent person can take the benefit of his own wrong?” Both the trial court and the first appellate court have returned concurrent findings of fact that the agreement to sell was executed by the appellant. The courts below have also held that the respondents were always ready and willing to discharge their obligation under the agreement. The courts below have rejected the appellant's defence that his signatures were obtained on a blank paper while he was under the influence of liquor. In the absence of circumstance that would disentitle the respondents to the discretionary relief of specific performance, the courts below proceeded to decree, the suit for specific performance. It was held, that even if it was accepted, that the appellant was under the influence of liquor, when his thumb impressions were obtained, no such allegation has been levelled with respect to the thumb impression appended for extension of R.S.A. No.2635 of 2009 7 time to execute the sale deed on 30.06.2000 and 15.09.2000. I find no error in the findings recorded by the courts below or in the discretion exercised while decreeing the suit. The first and second questions of law, are in the nature of a statements of law and therefore, cannot be disputed. A valid contract alone can be specifically enforced and the relief of specific performance is discretionary. The courts below have held that the agreement is legal and valid and the discretion exercised while decreeing the suit for specific performance is neither perverse nor arbitrary. Similarly, Section 20 postulates that the jurisdiction to grant specific performance is discretionary. The third and fourth questions can be answered by holding that once the discretion is held to be legal and valid and the agreement proved in accordance with law, the question of hardship or the agreement being one sided would not arise. The fifth question of law arises from an assertion that the agreement is void as Section 3 requires an agreement to be attested by two attesting witnesses. Suffice is to state that an agreement to sell, does not envisage transfer of proprietary rights, the absence of attesting witness did not render such an agreement and as even otherwise, as the appellant has admitted his thumb impressions on the agreement to sell, his argument is rejected. The other questions relate to the proof of the agreement to sell and have apparently been framed by disregarding the appellant's own admission admitting his thumb impressions on the agreement to sell. Consequently, as the finding of facts recorded by the courts below do not suffer R.S.A. No.2635 of 2009 8 from any error of law and as no substantial question of law arises for consideration, the appeal is dismissed. [RAJIVE BHALLA] JUDGE 16th July, 2009 SKaushik