RSA No.2158 of 2004(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2158 of 2004(O&M) Date of decision: 14.11.2008 Sandeep Kumar and another ......Appellants Versus Abhai Singh and another ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. R.S. Sihota, Sr. Advocate with Mr. Ashok Sharma, Advocate for the appellants. Mr. Mukesh Mittal, Advocate for the respondents. Rakesh Kumar Garg, J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiff- respondents for specific performance of the agreement dated 31.3.1989 has been decreed. Briefly stated, defendant No.1 Bishamber Dayal (now respondent No.2) was owner in possession of the suit property. He agreed to sell the suit property to the plaintiff on 17.3.1989 at the rate of Rs.90,000/- per acre. The agreement was reduced into writing on 31.3.1989 and Bishamber Dayal (respondent No.2) received a sum of Rs.80,000/- as an earnest money. In part performance of the agreement, the possession of the suit property was also delivered to the plaintiff. It was agreed that the sale deed shall be executed within one year in favour of the plaintiff on which date the remaining sale consideration was to be paid. Further, the case of the plaintiff is that he has always been ready and willing and is still ready and willing to perform his part of contract. RSA No.2158 of 2004(O&M) 2 However, he has come to know that defendant No.1 has suffered a collusive decree dated 2.4.1989 in favour of defendants No.2 and 3 Sandeep and Anil (now appellants). The plaintiff challenged the said decree averring that the same is void and not binding on him. With all these averments, the plaintiff prayed for the grant of a decree of specific performance of the agreement in respect of suit property on payment of Rs.31,500/- to defendant No.1. In the alternative, the plaintiff sought a decree for recovery of Rs.1,10,000/- which include Rs.80,000/- as earnest money and Rs.30,000/- as damages. All the three defendants filed joint written statement denying the execution of any agreement by defendant No.1 in favour of the plaintiff. It is alleged that the agreement was not the mental and conscious act of defendant No.1. The receiving of earnest money of Rs.80,000/- is also denied. It is pleaded that, in fact, defendant No.1 is a simpleton, illiterate and unmarried villager, who has been residing with his nephew Makhan Lal for the last 10 years, who with his family is looking after him. Defendant No.1 had no necessity to sell the suit land. Ratti Ram father of the plaintiff is brother of defendant No.1. The said Ratti Ram is alleged to be a clever and cunning person. The said Ratti Ram brought defendant No.1 in the Tehsil by representing that mutation of Balbir, their deceased brother was to be attested and that special power of attorney of defendant No.1 was required. On that pretext Rati Ram obtained thumb impression of defendant No.1 on certain blank papers. It is pleaded that if those blank papers has been converted into alleged agreement, then defendant No.1 is not bound by the same. Suffering of the decree by defendant No.1 in favour of defendants No.2 and 3 regarding suit property is admitted and it is claimed to be a legal and valid decree. With this stand and controverting other averments of the plaintiff, defendants prayed for dismissal of the suit. RSA No.2158 of 2004(O&M) 3 After perusing the evidence on record and hearing the counsel for the parties, the trial Court found that agreement dated 31.3.1989 was duly executed by defendant No.1 in favour of the plaintiff. The possession of the suit property was held to be delivered to the plaintiff. Decree dated 29.1.1989 in favour of appellants was held to be void. The plaintiff was held to be always ready and willing to perform to perform his part of contract. Resultantly, the suit was decreed and a decree for specific performance of contract Ex.PW3/1 was passed directing defendant No.1 to perform his part of the contract on receipt of the remaining sale consideration. Feeling dissatisfied by the aforesaid judgment and decree of the trial Court, defendants No.2 and 3 filed an appeal. Sh. S.K. Kapoor, the then learned Additional District Judge, Rewari, vide his order dated 21.11.1998 remanded the case to the trial Court after framing some additional issues. Against this order dated 21.11.1998, the plaintiffs went in revision before this Court. Vide order dated 21.7.2000 passed in Civil Revision No.5941 of 1998, this Court set aside the order dated 21.11.1998 of Shri S.K. Kapoor, the then learned Additional District Judge, Rewari and sent the case back to the Appellate Court to decide the appeal afresh. The said appeal was dismissed by the Additional District Judge, Rewari vide impugned judgment and decree dated 17.3.2004. While dismissing the appeal, the Lower Appellate Court affirmed the findings of the trial Court on all the issues. Still not satisfied, defendants No.2 and 3 have filed the instant appeal challenging the judgment and decree of the Courts below. Sh. R.S. Sihota, learned senior counsel, has vehemently argued that the findings on issues No.7 are patently illegal in the light of the fact that agreement in question dated 31.3.1989 is hit by the provisions RSA No.2158 of 2004(O&M) 4 of Section 16 of the Contract Act, 1872. Elaborating further, learned counsel has argued that the agreement in question was forged and fabricated document which has been proved on record and therefore,all exercise undertaken by respondent No.1 to prove the due execution of the agreement is nugatory and is of no consequence being forged and fabricated document and hit by the provisions of Contract Act, 1872. In support of his arguments, learned counsel has placed reliance upon the judgment of this Court in the case of Hamelo v. Jang Sher Singh (2002- 2) PLR 101 wherein it has been held that a person who is induced by the false statement of another and who has signed a written contract that is fundamentally different in character from the one which he envisaged then such a person is competent to say that it is not his document. Learned counsel has further argued that respondent No.2 being brother of Rati Ram, the fiduciary position between them is unassailable, on account of their relation being brothers and, therefore, the burden of proof of absence of fraud, misrepresentation and undue influence, is upon the person in a dominating position and it was enough for the appellants to plead that the document in question is a fabricated and forged document and thus, the judgment and decrees of the Courts below are liable to be set aside. I have heard learned counsel for the appellant and perused the record. I find no merit in this appeal. The argument raised by the learned counsel for the appellants is misconceived. From the perusal of the judgments of the Courts below, it is clearly established that the aforesaid argument has been raised by the learned counsel for the appellants for the first time in this Court. Learned counsel was unable to point out from the pleadings or the discussion in the impugned judgments that the said point was raised by the appellants before the Courts below. RSA No.2158 of 2004(O&M) 5 No factual basis has been laid down in this regard before the Courts below. Moreover, both the Courts below have recorded a finding of fact that the execution of the agreement in question stood proved beyond any doubt and in fact no challenge has been raised on the findings of the Courts below on this issue. Dismissed. November 14, 2008 (RAKESH KUMAR GARG) ps JUDGE