RSA No.1490 of 1991 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1490 of 1991 (O&M) Date of decision 03.10.2011. Ajit Singh (died) through legal representative ...... Appellant. versus Bikkar Singh and another ...... Respondents. CORAM :- HON'BLE MR. JUSTICE K.C.PURI. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present : Mr. Sunil Chadha, Advocate for the appellant. Mr. R.S.Wasu, Advocate for respondent No.1. K.C.PURI . J. Challenge in this appeal are the judgment and decree dated 19.4.1991 passed by Shri Iqbal Singh, learned District Judge, Kapurthala vide which the appeal preferred by the defendant/appellant against the judgment and decree dated 28.10.1987 passed by Shri L.R.Roojam, PCS, Additional Senior Sub Judge, Kapurthala was dismissed. 2. The facts of the present case are that the plaintiff has filed the suit for possession of land measuring 26 kanals 14 marlas as detailed in the RSA No.1490 of 1991 (O&M) 2 head note of the plaint situated in the area of village Daburji, Tehsil and District Kapurthala against Ajit Singh and Land Mortgage Bank, Kapurthala by way of specific performance of an agreement dated 8.2.1983 on payment of balance consideration of Rs.39,750/- or in the alternative the suit for the recovery of Rs.54,000/- i.e. the double amount of Rs.27,000/- which was advanced at the time of the execution of the aforesaid agreement to sell. On 8.2.1983 Ajit Singh defendant no.1 received Rs.21,000/- as earnest money from the plaintiff and he executed agreement to sell the suit land at the rate of Rs.20,000/- per killa and to execute the sale deed upto 2.2.1984. On 2.2.1984 Ajit Singh defendant no.1 took another Rs.6000/- as part of earnest money and extended the date for execution of the sale deed. The plaintiff has averred that he always remained and still is ready and willing to perform his part of the contract. But Ajit Singh, defendant failed to execute the sale deed. Defendant further mortgaged land comprised in khasra No.143(6-0) with Land Mortgagee Bank defendant No.1 for a sum of Rs.26,500/-. The plaintiff has asked to Ajit Singh defendant No.1 to execute the sale deed in terms of the agreement dated 8.2.1983 but to no avail, hence the suit. 3. In his written statement Ajit Singh defendant No.1 has pleaded that in fact the alleged agreement of sale was not intended to be sale agreement, but was only a device to receive the loan advanced by the plaintiff, to him and actual amount advanced was Rs.13,000/- and the amount of interest of Rs.8,000/- was added to make the figure of Rs.21,000/- and the interest was agreed to be paid at the exorbitant rate of Rs.2% per month. The alleged terms in the agreement in question were fictitious and no sale was intended. The loan of Rs.6,000/- was entered on RSA No.1490 of 1991 (O&M) 3 account of interest, which was payable if the principal sum of Rs.13,000/- with interest Rs.2% p.m. was not paid at the earliest. There was no circumstance to extend the date for the completion of the sale from 8.2.1984 to 8.8.1984. Further on 8.8.1984, no notice was served or any other action taken to indicate that there was any sale transaction to be completed on 8.8.1984. The plaintiff has filed this false, frivolous and vexatious suit to extract money from him. The loan transaction was over on 22.8.1984, when the plaintiff, who was in urgent need of money, borrowed a sum of Rs.9,000/- from him vide pronote and receipt of the even date, which has not been paid back to him. This defendant has also added that the fact is that even the loan advanced to him by the plaintiff was paid back vide receipt dated 8.3.1984 for Rs.12,000/- and receipt dated 24.7.1984 for Rs.6000/- before the agreed dated 8.8.1984. 4. Defendant no.2 in separate written statement has submitted that in case the suit of the plaintiff is decreed against the defendant no.1 then the plaintiff be directed to pay the principal amount of Rs.26,500/- plus interest at the rate of 12% p.a. to them before executing the sale deed so far. 5. The plaintiff filed replication reiterating his own pleadings and denying those of the defendant no.1. 6. On the basis of the pleadings of the parties, the following issues were framed:- 1. Whether loan of Rs.13000/- was obtained by Ajit Singh defendant from the plaintiff and after calculating interest thereon at the rate of 5% per mensum of, writing mark-A was executed for total amount of Rs.21000/- and no agreement to sell the property was written?OPP 2. If issue No.1 is not proved, whether the plaintiff remained ready and willing for the performance of the RSA No.1490 of 1991 (O&M) 4 agreement?OPP 3. Whether defendant No.1 has committed the breach of the agreement?OPP 4. Relief 7. The parties have led their respective evidence on the aforesaid issues. The learned trial Court after appraisal of the evidence decreed the suit of the plaintiff with costs vide judgment and decree dated 28.10.1987. 8. Feeling dissatisfied with the judgment and decree dated 28.10.1987 passed by Additional Senior Sub Judge, Kapurthala the defendant filed First Appeal before learned District Judge, Kapurthala who after reappraisal of the evidence dismissed the appeal of the defendant vide judgment dated 19.4.1991. 9. Feeling dissatisfied with the aforesaid judgments and decrees dated 28.10.1987 and 19.4.1991, the defendant-appellant has preferred the present regular second appeal. 10. The learned counsel for the defendant/appellant has submitted that the following law points are involved in the present appeal :- (i) Whether execution of the alleged agreement to sell dated 08.02.1983 stands duly proved on record especially when the possession of the suit land is still with the appellant/defendant, whereas as per the alleged agreement, possession stood delivered to respondent no.1/plaintiff at the time of execution of the said agreement? (ii) Whether in view of the specific clause mentioned in the alleged agreement dated 08.02.1983 i.e. In case, appellant fails to execute the sale deed then he shall be liable to pay double the amount received as earnest money, Courts below committed a serious illegality in decreeing suit for possession by way of specific performance of the alleged agreement in favour of respondent no.1/plaintiff subject to the condition that he RSA No.1490 of 1991 (O&M) 5 deposits balance sale consideration amount ? (iii) Whether both the courts below committed a serious illegality in not taking into consideration the fact that the real transaction between the parties was borrowing loan amount of Rs.13,000/- by the appellant/defendant from respondent no.1/plaintiff and it was only in order to secure the said loan amount that the agreement in question came into existence ? (iv) Whether in view of the fact that the factum of appellant/defendant being a co-sharer only to the extent of 1/5th was already in the knowledge of respondent no.1/plaintiff, latter could agree to purchase the same through the alleged agreement to sell dated 08.02.1983 ? (v) Whether in view of specific admission of respondent no.1 plaintiff in his replication that he received an amount ofRs.9,000/- on 22.8.1984 from the appel1ant/defendant, suit of respondent no.1/plaintiff could be decreed ? (vi) Whether both the Courts below committed a serious illegality in disbelieving/discarding documentary evidence (Ex.D-1 and Ex.D2) executed by none other than the respondent no.1/plaintiff, which goes a long way to show that the appellant/defendant had received a loan amount from the respondent/plaintiff, which was paid back through the said receipts (Ex.D-1 and D-2) ? (vii) Whether the impugned judgments and decrees passed by both the Courts are liable to be set aside on the short ground that the same are the result of misleading, misconstruing and misinterpreting oral as well as documentary evidence available on record ? 11. The learned counsel for the appellant has contended that plaintiff has filed suit for specific performance of an agreement dated 8.2.1983. Both the Courts below by misreading and misinterpreting the evidence on the file have decreed the suit of the plaintiff. According to the agreement to sell, the possession of the suit property has been handed over by the defendant/appellant to the plaintiffs, however, that fact is wrong on RSA No.1490 of 1991 (O&M) 6 the face of it and both the Courts below have admitted the fact that defendant/appellant is still in possession of the suit property. So, the recital in the agreement regarding delivery of possession is wrong. This fact corroborates that there was no intention to sell the property and it was merely a loan transaction. 12. The defendants/appellants have taken a stand that amount of the loan has been paid through receipt Exs.D-1 and D-2. However, both the Courts below have returned a finding that the receipts Ex.D-1 and D-2 are not proved. Those findings are the result of misreading and misinterpreting the evidence. Even if it is assumed that the said amount has not been paid, in that case also, at the most alternative suit for recovery could have been decreed. 13. The transaction between the parties was simply to secure the loan given by the plaintiff to the defendants. It is submitted that man may tell a lie but the circumstances cannot. In the present case, the date of due performance of the contract was 8.2.1984. According to the plaintiff on 2.2.1984 the date for execution of sale deed was extended to 8.8.1984 and an amount of Rs.6000/- was said to be paid to the appellant. It is further alleged that Rs.20,000/- was paid to the appellant at the time of execution of the agreement dated 8.2.1983. In case, the real intention of the parties was to execute the sale deed, in that case, the time for execution of the sale deed would not have been fixed after a period of one year of the date of execution i.e. 8.2.1983 to 8.2.1984. Further time for six months would not have been extended. The plaintiff has pleaded in para No.6 of the plaint that on 8.2.1985 he went to the Office of Sub Registrar and remained present there RSA No.1490 of 1991 (O&M) 7 for whole of the day. At the end of the day, he got attested the affidavit from the Sub Registrar. However, no affidavit of 8.2.1985 has been produced on the file but the affidavit dated 8.8.1984 has been produced on the file as Ex.PW2/1. The said affidavit is beyond pleadings and cannot be looked into. 14. Learned counsel for the appellant has further argued that where the decree of specific performance caused great hardship to the defendants, in that case the same should not be passed in view of Section 20 of the Specific Relief Act. It would be unfair to pass a decree for specific performance of the agreement after more than 28 years of the execution of the alleged agreement, as the prices of the land have increased more than thousand times. 15. Learned counsel for the appellant has further submitted that the defendant/appellant has simply 1/5th share in the land measuring 26 kanals 14 marlas. Both the Courts below have passed the decree of 26 kanals 14 marlas of land whereas he is the owner of only 1/5th share in the land measuring 26 kanals 14 marlas. So, the judgments and decrees of both the Courts below are perverse on that account also and the same are liable to be set aside. 16 To support these contentions, learned counsel for the appellants has relied upon the following authorities :- (1) Mir Abdulk Hakeem Khan vs. Abdul Mannan Khadri AIR 1972 Andhra Pradesh 178 and (2) Kammana Sambamurthy vs. Kalipatnapu Atchutamma and Ors. 2010(4) R.C.R. (Civil) 894. 17. In reply to the above noted submissions, learned counsel for the RSA No.1490 of 1991 (O&M) 8 respondents has supported the judgments and decrees passed by the Courts below. It is submitted that total area of the land of defendants was 193 kanals 5 marlas and as such the agreement in respect of land measuring 26 kanals 14 marlas is well within the share of the defendant/appellant. Both the Courts below have given a concurrent finding of fact that the suit is in respect of the share of defendant/appellant only. Otherwise also, the defendant has no right to challenge in respect of his title. 18. There is concurrent finding of fact that Ex.D-1 and Ex.D-2 are forged and fabricated receipts and cannot be relied upon. There is concurrent finding of fact that defendants executed agreement to sell his share in respect of the suit property. The plea of loan transaction did not find favour by both the Courts below. So, the concurrent finding of fact cannot be interferred in the regular second appeal. 19. Learned counsel for the appellant has further submitted that the date 8.2.1985 for appearance of the plaintiffs before the Sub Registrar has been inadvertently mentioned. The date of due performance was 8.8.1984 and plaintiffs/respondents appeared before Sub Registrar on that date. The said affidavit Ex.PW-2/1 is duly proved. Mere fact that appellant has stated that Rs.9,000/- were taken by the plaintiff from the defendants on 22.8.1984 does not invalidate the agreement to sell. That was a separate transaction and this Court cannot interfere in the concurrent finding recorded by both the Courts below. 20. Learned counsel for the respondents has relied upon following authorities in support of his contentions :- (1) Gurbachan Singh & Anr. vs. Gurmit Singh 2004(2) LJR 727 equivalent RCR (Civil) 223; RSA No.1490 of 1991 (O&M) 9 (2) Netyam Venkatarammanna and others vs. Maharkali Narashimham 1994 (2) LJR 185 and (3) Deenanath vs. Chunnilal AIR 1975 Rajasthan 69. 21. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case with their able assistance. 22. So far as the submission made by counsel for the appellants to the effect that defendant is owner to the extent of 1/5th share of land measuring 26 kanals 14 marlas only is concerned that submission is without any substance. The plaintiff in para No.1 of the plaint has pleaded that defendant is the owner in possession of the suit property. The defendant in the written statement has admitted the said fact. Otherwise also, the plaintiffs has placed on record the jamabandi in which defendants has been shown to be owner in possession of 193 kanals 5 marlas of land and his share in that joint khata is 1/5th. So, according to the said jamabnandi the defendants is the owner of the suit property. Otherwise also after admitting fact in the written statement he is estopped from taking the said plea. So, the appellant cannot take benefit of the authority Mir Abdul Hakim as the same does not also help the case of the appellant. 23. So far as the second contention of learned counsel for the appellant/defendant that the loan amount has been paid through Ex.D-1 and Ex.D-2 is concerned that submission cannot be accepted. There is concurrent finding of fact recorded by both the Courts below that the defendants have failed to prove the execution of receipt Ex.D-1 and Ex.D-2. That being a concurrent finding of fact cannot be interferred in the regular RSA No.1490 of 1991 (O&M) 10 second appeal. 24. The last contention of the learned counsel for the appellant to the effect that both the Courts below have misread and misinterpreted the evidence regarding the nature of transaction between the parties carries weight and has to accepted. The case of the defendant from the very beginning is that it was a loan transaction and agreement was executed to secure that loan amount. One very important piece of evidence which has been ignored by both the Courts below is the admission made by plaintiff himself regarding execution of pronote dated 22.8.1984. The defendants in para No.8 of the written statement has pleaded that it was a loan transaction between the parties. On 22.8.1984 plaintiff now respondent was in urgent need of money and borrowed a sum of Rs.9000/- from the appellant. In the replication, the plaintiff has admitted that he has executed a pronote on 22.8.1984 in favour of defendant No.1 for a sum of Rs.9000/-. The date of due execution was extended upto 8.8.1984. Since the plaintiff himself has borrowed a sum of Rs.9,000/- on 22.8.1984 and as such there was no question of execution of agreement to sell but it was mere a loan transaction. No doubt, the concurrent finding of fact should normally be not interferred by this Court but where the evidence has been misread or misinterpreted in that case this Court should interfere in order to dispense with the justice. 25. Another circumstance which has been totally ignored by the trial Court is that the agreement to sell was executed on 8.2.1983 but the due date of specific performance was fixed as 8.2.1984 i.e. after a period of RSA No.1490 of 1991 (O&M) 11 one year. The case of the plaintiff was that on 8.2.1984 the time for execution of agreement was extended upto 8.8.1984 i.e. for a further period of six months. The matter does not end here, the suit for specific performance was filed in the month of February, 1985 i.e. about two years after the execution of agreement. So, had there been real intention of executing the sale deed in compliance to the agreement in that case, the time should not have been so long and the same should not have been extended. 26. Regarding ready and willingness, the plaintiff in paragraph No.6 of the plaint has pleaded that on 8.2.1985, he remained present in the office of Sub Registrar and defendant No.1 did not turn up. There was no occasion to appear before the Sub Registrar on 8.2.1985 as the said date was never agreed upon by the parties to execute the sale deed. However, the evidence produced on the file is contrary to the pleadings. He has proved the affidavit dated 8.8.1984 as Ex.PW-2/1. Anything beyond pleading cannot be looked into. Both the Courts below have lost sight of the fact that even till today the plaintiff has not got amended the plaint so as to plead that he appeared before the Sub Registrar on 8.8.1984. No person of the office of Sub Registrar has been produced to prove that on 8.8.1984 the plaintiff appeared before the Sub Registrar. No entry of the office of Sub Registrar has been produced. So, the affidavit can be procured at later stage. 27. Another circumstance which has been ignored by both the Courts below is that recital in the agreement that possession has been delivered by defendant No.1. The present suit has been filed for possession meaning thereby it is proved that possession was not delivered at the time RSA No.1490 of 1991 (O&M) 12 of agreement. This fact also strengthen the case of the defendant No.1/appellant that it was merely a loan transaction and not an agreement to sell the property. 28. In authority Gurbachan Singh & Anr.'s case (supra) it has been laid down that normally nothing extraneous can be read against the terms of the written contract in view of Section 92 of the Indian Evidence Act. However, the proviso (1) of Section 92 of the Indian Evidence Act, shows that any fact may be proved which would invalidate the document. The plaintiff would not have borrowed Rs.9,000/- on 22.8.19894 i.e. after the date fixed for the agreement. So, this fact suggests that parties have advancing loan to each other and intention was not to execute the sale deed in pursuant to the agreement to sell. In authorities Netyam Venkatarammanna and others' case (supra) and and Deenanath's case (supra), it has been held that defendant cannot take the plea that he has no title,. There is no dispute to that proposition of law. Both the Courts below have rightly held that defendant was the owner of the suit property and he is estopped from taking the plea that he was not the owner. However, the actual dispute is whether the transaction between the parties was agreement to sell or was a loan transaction. 19. In view of the above discussion, all the substantial questions raised above by the learned counsel for the appellants stand determined in the light of the discussion made above. 20. Consequently the regular second appeal is partly accepted. The judgments and decrees passed by both the Courts below vide which the RSA No.1490 of 1991 (O&M) 13 decree for specific performance of the contract has been passed stand set aside. However, the suit of the plaintiff for the recovery of Rs.27,000/- along with interest @ 9% per annum from the date of filing the suit till realization stands decreed. In view of the peculiar circumstances of the case, the parties are left to bear their own costs. 20. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE October 03, 2011 sv