R.S.A.No. 4201 of 2008 {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4201 of 2008 Date of Decision:August 17, 2009 Smt. Kalawati and others ---Appellants versus Ajmer Singh and another ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.Jaswant Jain,Advocate, for the appellants *** SABINA J. Plaintiff – Ajmer Singh and Ajit Singh had filed a suit for possession by way of specific performance of agreements to sell dated 22.4.1999(Ex. P-1). Additional Civil Judge (Sr. Division), Hansi vide judgment and decree dated 18.11.2003 decreed the suit of the plaintiffs. Aggrieved by the same, defendant preferred an appeal and the same was dismissed by Additional District Judge(Fast Track Court), Hisar vide judgment and decree dated 30.9.2008. Hence, the present appeal by the defendant. The facts of the case as noticed by the learned Additional R.S.A.No. 4201 of 2008 {2} District Judge(Fast Track Court), in paras 2 and 3 of its judgment read as under:- “Brief facts giving rise to the present appeal are that the plaintiffs filed the suit alleging that the defendant/appellant (hereinafter referred to defendant) is the real uncle of the plaintiffs and they are residing in the same village. The defendant was the owner in possession of the land measuring 57 kanal 17 marlas to the extent of 4/7th share vide mutation No. 1272 dated 31.10.96. Out of the above said land, the defendant agreed to sell 6 kanal 5 marlas of land with the plaintiffs for a sale consideration of Rs. 1,25,000/- and received the entire sale price in the presence of the witness and executed the agreement to sell dated 22.4.99 and further agreed to get the sale deed executed and registered as and when the litigation regarding the disputed property is finally decided. After the finalization of the pending litigation, the plaintiff asked the defendant to get the sale deed executed and registered but he kept the matter postponing on one pretext or the other and on 1.9.2001 refused to get the sale deed executed and registered. Hence the present suit. The plaintiffs are entitled to the specific performance of the contract or in the alternative entitled to the recovery of the sale price with interest @ Rs. 1.50% per month from the defendant. 3. On the other hand, defendant has taken preliminary objections of maintainability. Locus standi : cause of action; limitation; estoppel; concealment of facts, jurisdiction and that R.S.A.No. 4201 of 2008 {3} the suit of the plaintiffs is based on fraud and misrepresentation. On merits, it is alleged that the defendant has retired as Head Constable from Haryana Police on 29.2.92 and the plaintiffs do not want to get him cultivated the suit land. The defendant is having a residential house and the agricultural land in village Dhana Kalan but due to the fear of the plaintiffs and their rather, he is residing at Bhiwani with his son and he is simple person. The defendant never agreed to sell his suit land with the plaintiff and has not received the sale price of the property in dispute and question of execution the agreement to sell dated 22.4.99 does not arise. The alleged agreement is based on fraud and misrepresentat6ion and mala fide and the defendant has never signed the same and if the plaintiffs or their father in connivance with the stamp vendor and the petition writer or Sh. Azad Sisngh Swami, Advocate Hansi have procured his signatures on some blank papers under a conspiracy to grab the property of the defendant, the same is not binding of the rights of the defendant. On 22.4.99, the defendant regarding the land of his mother Smt. Sarti situated at village Dhana Khurd had come to the Court premises to Sh. A.S.Swami, Advocate for getting the mutation of the same cancelled and a compromise was effected between the defendant and the father of the plaintiffs Duli Chand for settling aside the mutation of Smt. Sarti and in this regard a compromise was written by Sh. A.S.Swami, Advocate in his own hand which was got signed by the defendant and the father R.S.A.No. 4201 of 2008 {4} of the plaintiffs Duli Chand in the presence of the witnesses and that muta6tion was later on got set aside and the land was partitioned by both the parties. On the same day, Sh. A.S.Swami, Advocate along with Ram Chander and Ishwar witnesses brought the defendant to Moti Sagar Jain, petition writer where Som Nath, stamp vendor was also present and Sh. A.S.Swami, Advocate asked him to sign one or two blank stamp papers in order to get the mutation set aside and as such, he kept6 the signed blank papers with him. It is probable that those blank stamp papers would have been used by the plaintiffs in connivance with the petition writer, stamp vendor and as Sh. A.S.Swami, Advocate for gorging the alleged agreement to sell. After appearing in the present case, the defendant has come to know about the alleged agreement to sell which is a result of fraud and misrepresentation and forgery and, therefore, question of agreeing to get the sale deed executed and registered in favour of the plaintiffs does not arise.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether defendant Sheo Chand agreed to sell 6 kanal 5 marlas of land i.e. 125/115-7 shares of land measuring 57 kanal 17 marlas for a consideration of Rs. 1,25,000/- and received the entire amount of sale consideration at the time of oral agreement in the presence of the witnesses and handed over the physical possession of the suit land to the plaintiff? OPP R.S.A.No. 4201 of 2008 {5} (2)Whether the defendant on that very day i.e.on 22.4.99 got executed an agreement for sale in favour of the plaintiff in presence of the witnesses? OPP (3)Whether the parties agreed to get the sale deed executed in favour of the plaintiffs or in favour of the others as suggested by the plaintiffs after the finalization of the pending cases? OPP (4)Whether the stamp charges and other misc. charges were to be bore by the plaintiffs? OPP (5)Whether in case of litigation on part of the defendant the plaintiffs were entitled to get the sale deed executed through Court, in that event the entire expenses were to be borne by the plaintiff? OPP (6)Whether the pending cases stands decided? OPP (7)Whether the plaintiffs have been ready and willing to perform part of contract? OPP (8)Whether the plaintiffs are entitled for decree for possession by way of specific performance on the grounds mentioned in the plaint? OPP (9)Whether the plaintiffs have no locus standi to file the present suit? OPD (10)Whether the suit is not maintainable in the present form? OPD (11)Whether the plaintiff has suppressed the material facts if so to what effect? OPD (12)Whether the suit of the plaintiff is time barred? OPD R.S.A.No. 4201 of 2008 {6} (13)Whether the plaintiff has no cause of action to file the present suit against the defendant? OPD (14)Whether the Civil Court at Hansi has got no jurisdiction to9 entertain and try the present suit? OPD (15)Whether the suit is not properly valued for the purpose of Court fee? OPD (16)Whether the plaintiffs are estopped by their own act and conduct from filing the present suit? OPD (17)Whether the suit of the plaintiff is passed on fraud and misrepresentation? OPD (18)Whether the plaintiffs have filed the present suit in collusive on with their father Duli Chand? OPD (19)Whether the property in dispute has not been pleaded exactly and the identity of the property has not been mentioned in the plaint? OPD (20)Whether the defendants are entitled for special cost u/s 35A CPC from the plaintiffs?OPD (21)Relief. Learned counsel for the appellants has submitted that the defendant had been defrauded by the plaintiffs. It was not believable that a person would pay the entire sale consideration although litigation was pending between the parties. The agreement to sell in question was not executed by the defendant. Litigation between the parties was going on up to this Court and the Regular Second Appeal was decided on 4.8.1999 after the execution of the alleged agreement to sell. After hearing learned counsel for the appellants I am of the R.S.A.No. 4201 of 2008 {7} opinion that the instant appeal is devoid of any merit. Plaintiffs had filed a suit for specific performance of agreement to sell dated 22.4.1999. In order to prove due execution of the agreement to sell, plaintiff No. 1 himself appeared in the witness box as PW-1 and examined PW-2 Ram Chander, Attesting witness, PW-3 Azad Singh Swami, scribe of the agreement to sell in question. Plaintiff further examined PW-4 Yash Pal Chand Jain, Handwriting and Finger Print Expert, who gave his opinion that the disputed signatures on agreement to sell (Ex. P-1) matched with the standard signatures of the defendant. Defendant, on the other hand, had taken the plea that fraud had been committed on him. In fact, he was under the impression that proceedings for setting aside the mutation of his mother were going on. Both the courts below after appreciating the evidence led by the parties have rightly concluded that the plaintiff had been successful in proving the due execution of the agreement to sell, in question. The plea taken by the defendant that he was under the impression that the proceedings regarding setting aside of mutation of his mother were going on, could not be believed as the defendant was a retired Head Constable. Hence, the plea taken by him was an after thought. Defendant had failed to establish the plea of fraud set up by him. R.S.A.No. 710 of 1999 was got dismissed as withdrawn on 4.8.1999. Hence, the agreement to sell executed between the parties was liable to be believed. The fact that the entire sale consideration had been paid at the time of execution of the agreement to sell, does not make the same unreliable document. It was for the parties to enter into the terms suitable to them. Parties are closely related to each other and at the time of execution of the agreement to sell in question, R.S.A.No. 4201 of 2008 {8} must be having faith in each other. The findings arrived at by the courts below do not call for any inference. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE August 17, 2009 PARAMJIT