IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.112 of 2006 Reserved on : November 4, 2009 Decided on : November 7, 2009 Smt. Jayanti Devi and others ....Appellants. VERSUS Smt. Prabha Bhagra ....Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : Mr. Ajay Mohan Goel, Advocate. For the respondents : Mr. K.D. Sood, Advocate, with Mr. D.R. Sood, Advocate. Surjit Singh, Judge Present Regular First Appeal is directed against the judgment and decree, dated 28th September, 2005, of learned District Judge, Shimla, whereby suit for specific performance, based on agreement dated 1st July, 1995, filed by respondent Prabha Bhagra, hereinafter called plaintiff, against the present appellants, who shall hereinafter be referred to as defendants, has been decreed and a direction has been issued to the defendants to execute the sale deed, in respect of land described in the said agreement to sell, in favour of the plaintiff, on receipt of a sum of Rs.1,50,000/-, on account of balance sale consideration, within a period of 45 days from the date of the passing of the decree. Whether the reporters of the local papers may be allowed to see the Judgment? …2… 2. Facts, relevant for the disposal of the appeal, may be noticed. Plaintiff Prabha Bhagra filed a suit for specific performance of agreement to sell dated 1st July, 1995, as renewed vide endorsement dated 30th June, 1996, and also for damages to the tune of Rs.50,000/-, against the defendants, pleading the following cause of action. Late Shri Ran Vijay Singh, the predecessor-in-interest of the defendants, owned land measuring 3 bighas, bearing Khasra No.41/3, situate in Mauza Sadhora, Pargana Kuthangi, Tehsil and District Shimla, as per entry in the Jamabandi for the year 1985-86. Out of this land, he sold 2 bighas land to the plaintiff for a consideration of Rs.4,25,000/-, in the year 1991, vide sale deed Ex. PW-7/A. At the time of the sale of this land, late Shri Ran Vijay Singh promised and assured that the plaintiff would be allowed to have access to the land sold to her, through Khasra No.42, which also belonged to him. However, lateron he started objecting to the plaintiff passing through Khasra No.42. Plaintiff then approached late Shri Ran Vijay Singh to sell a portion of Khasra No.42, which could be used by her as a passage. Agreement was entered into on 30th July, 1994, per which 1 biswa land was agreed to be sold by late Shri Ran Vijay Singh, for Rs.25,000/-, to the plaintiff, out of Khasra No.42. Copy of the agreement is Ex. PW-1/A. Thereafter, another agreement, dated 1st July, 1995, Ex. PW-2/A, took place between late Shri Ran Vijay Singh and …3… the plaintiff. As per this agreement late Shri Ran Vijay Singh agreed to sell entire area of Khasra No.42, measuring 18 biswas and also Khasra No.249/44, measuring 12 biswas, for a consideration of Rs.4,50,000/-. He received a sum of Rs.1,10,000/-, at the time of execution of the agreement. It was agreed that the remaining sale consideration would be paid at the time of the execution and registration of the sale deed, which was to be executed and registered within one year from the date of execution of Ex. PW-2/A, i.e. 1st July, 1995. 3. On 30th June, 1996, late Shri Ran Vijay Singh approached the plaintiff for payment of some more amount of money, which he needed for his medical treatment and also household expenditure. Plaintiff then paid a sum of Rs.1,19,276/-, in cash. It was agreed that a sum of Rs.25,000/- paid, pursuant to agreement dated 30th July, 1994, Ex. PW-1/A, was also to be adjusted against the consideration for the land agreed to be sold vide agreement Ex. PW-2/A, dated 1st July, 1995, because the land agreed to be sold, vide agreement Ex. PW-1/A, was also included in the agreement, Ex. PW-2/A. Another sum of Rs.45,724/- paid to one Shri Ravi, on behalf of late Shri Ran Vijay Singh, was also agreed to be adjusted against the sale consideration. Writing to this effect was made, by way of endorsement Ex. PW-2/C, on agreement Ex. PW-2/A. A separate receipt was also prepared, which is Ex. PW-2/C/I. …4… Time for execution of sale deed was extended upto 31st March, 1997. 4. Late Shri Ran Vijay Singh died in January, 1997, before the expiry of the extended time, for execution of the sale deed. After his death, defendants were approached to execute the sale deed, but they dillydallied. A written notice Ex. PW-2/D was served upon appellant-defendant Prabha Singh, on 28th March, 1997. She responded to the notice vide reply Ex. PW-2/H, in which she denied that late Shri Ran Vijay Singh had executed any agreement dated 1st July, 1995 or that such an agreement was renewed vide endorsement dated 30th June, 1996. Defendants required the plaintiff to supply copies of the documents. Receipt of money, referred to in the notice, was also denied. Thereafter, another notice dated 8th July, 1997, Ex. PW-2/E was issued and copies of the agreement, the endorsement and the receipt were supplied, alongwith this notice. Defendants thereafter did not respond. 5. In the plaint, it was alleged that the plaintiff had always been ready and willing to perform her part of the agreement and was still ready and willing to perform her part of the agreement, by paying a sum of Rs.1,50,000/-, the balance sale consideration, to the defendants. 6. Plaintiff filed suit for specific performance of agreement in this Court. At that time the original jurisdiction of the Courts, subordinate to the High Court, …5… was upto Rs.2,00,000/- only. Lateron, when the pecuniary jurisdiction of the Court of District Judge was raised to Rs.5,00,000/-, the suit was transferred to the District Judge. 7. Suit was contested by the defendants. They denied that late Shri Ran Vijay Singh had executed any agreement to sell the land, described in Ex. PW-2/A and had received the money mentioned therein. It was alleged that late Shri Ran Vijay Singh was under treatment for throat cancer at Lucknow from 24th June, 1996 to the first week of July, 1996 and, therefore, there was no question of his having executed the endorsement, regarding extension of time, on 30th June, 1996, at Shimla, as alleged by the plaintiff. Agreement Ex. PW-2/A as also endorsement Ex. PW-2/C, regarding extension of time for the registration of the sale deed, were alleged to have been forged, after the death of late Shri Ran Vijay Singh. Certain preliminary objections were also raised. It was stated that the suit was barred by time, agreement was without consideration, there was no legal necessity for late Shri Ran Vijay Singh to sell the property and the suit was bad for mis-joinder of causes of action as also for mis-joinder of parties. Plaintiff was alleged to be not entitled to a decree for specific performance or for damages. …6… 8. Following issues were framed by this court, before transfer of the suit to the learned District Judge, Shimla: 1. Whether agreement dated 1.7.1995 is a valid agreement? OPD 2. Whether the defendants are not bound by the agreement dated 1.7.1995 as alleged? OPD 3. Whether the suit is barred by the period of limitation as alleged? OPD 4. Whether the agreement dated 1.7.1995 is without consideration as alleged? OPD 5. Whether the agreement dated 1.7./1995 for the sale of the property in dispute was without any legal necessity, if so, its effect? OPD 6. Whether the suit is bad for mis-joinder of causes of action? OPD 7. Whether the suit is bad for mis-joinder of parties? OPD 8. Whether the plaintiff is entitled to the decree for specific performance? OPP 9. Whether the plaintiff is entitled for damages as alleged, if so to what amount? OPD 10. Relief. 9. Plaintiff examined eight witnesses, besides proving the agreement to sell, receipts regarding payment of money and the endorsement Ex. PW-2/C, in support of her claim. Defendants examined, on commission, Medical Superintendent of Sanjay Gandhi Post Graduate Institute of Medical Sciences (SGPGIMS), Lucknow, one of them namely, Prabha Singh as DW-1, and a brother-in-law of late …7… Shri Ran Vijay Singh, namely DW-2 Col. V.S. Rana, to prove that late Shri Ran Vijay Singh was not at Shimla on 30th June, 1996, when endorsement Ex. PW-2/C and receipt Ex.PW-2/C/I, purport to have been executed by him. 10. Learned trial Court found Issues No.1 to 8 in favour of the plaintiff. Issue No.9 was, however, found against the plaintiff. Consequently, the suit of the plaintiff was decreed, only with respect to her prayer for specific performance of agreement dated 1st July, 1995. 11. Defendants have assailed the judgment and decree of the trial Court. 12. During the course of hearing, learned counsel for the appellants-defendants confined himself to the plea that endorsement Ex. PW-2/C and receipt Ex. PW-2/C/I, whereby late Shri Ran Vijay Singh allegedly extended the time for execution of the sale deed and received a sum of Rs.1,19,276/-, in cash, and agreed for the adjustment of an amount of Rs.25,000/- received by him, at the time of execution of agreement dated 30th July, 1994, Ex. PW-2/A and Rs.45,724/- allegedly paid to one Shri Ravi on his behalf were forged. He submitted that late Shri Ran Vijay Singh was not at Shimla on 30th June, 1996, but was at Lucknow, in connection with his treatment for throat cancer at SGPGIMS. 13. In support of his contention, learned counsel placed reliance upon the testimony of CW-1 Dr. Hem …8… Chandra and the record maintained by SGPGIMS, Lucknow, regarding treatment of late Shri Ran Vijay Singh, copies Ex. CW-1/A and Ex. CW-1/B, as also the statement of defendant Prabha Singh, which she made as DW-1 and the statement of brother-in-law of late Shri Ran Vijay Singh, namely Col. V.S. Rana (DW-2). 14. As per testimony of CW-1 Dr. Hem Chandra, which is based on the record maintained by SGPGIMS, Lucknow, copies of which are Ex. CW-1/A and Ex. CW-1/B, late Shri Ran Vijay Singh was undergoing treatment for throat cancer, at the said Hospital, in June and July, 1996. He was administered radiotherapy on 28th June, 1996 and was required to visit the Hospital again on 1st July, 1996, on which date he visited the Hospital, but was required to appear on the next following day, i.e. 2nd July, 1996, on which date again a boost of radiotherapy was given. 15. DW-1 Prabha Singh stated that in the last week of June, 1996 and first week of July, 1996, late Shri Ran Vijay Singh was undergoing treatment at Lucknow and had been staying with DW-2 Col. V.S. Rana, his brother-in-law, and she was also staying with him, at the place of said Col. V.S. Rana. She stated that late Shri Ran Vijay Singh was very weak those days, on account of cancer of throat and radiotherapy, to which he was being subjected at SGPGIMS, Lucknow and was unable to undertake long and continuous journey from Lucknow to Shimla and back. …9… 16. DW-2 Col. V.S. Rana testified that late Shri Ran Vijay Singh was unable to walk himself and that two persons used to support him, as he was being given Radiotherapy at SGPGIMS, Lucknow, in the last week of June and first week of July, 1996. He stated that late Shri Ran Vijay Singh was very much with him at Lucknow from the last week of June, 1996 to the first week of July, 1996 and that he did not leave Lucknow, during those weeks nor was he in a position to travel and that the he remained with him at Lucknow, throughout, during those two weeks. 17. In addition to the aforesaid evidence of the defendants, learned counsel pointed out certain contradictions and improbabilities in the evidence of the plaintiff, to support his submission. He drew the attention of the Court to the statement of PW-2 Shri Vinod Sood, the scribe of endorsement Ex. PW-2/C and receipt Ex. PW-2/C/I and plaintiff Prabha Bhagra, who appeared as PW-3. 18. PW-2 Shri Vinod Sood, who is a practicing Advocate in District Courts at Shimla, stated that he was approached by both the parties, in the Court premises, on 30th June, 1996, for writing the endorsement, regarding extension of time, and that he asked them to visit his office in the evening, for the purpose. PW-3 Prabha Bhagra did not say that she went to Court premises accompanied by late Shri Ran Vijay Singh. Instead, she stated that she was approached by late Shri Ran Vijay Singh at her place, in the …10… noon, and she then spoke to her Advocate, Shri Vinod Sood, on phone, who asked her to see him in his office in the evening. Again, PW-2 Shri Vinod Sood stated that from the physical condition of late Shri Ran Vijay Singh, it did not appear that he was suffering from any disease, but plaintiff Prabha Bhagra stated that he was not physically well. 19. 30th June, 1996 was a Sunday. Courts were closed on that day. Therefore, Shri Vinod Sood, Advocate, was not supposed to be in the Court premises that day and that too when there are no chambers for the Lawyers in the Court Complex. So late Shri Ran Vijay Singh and plaintiff Prabha Bhagra were not supposed to have gone to the Court premises to contact him. Also, Shri Vinod Sood, Advocate, could not have been in Court premises, as testified by him. 20. Learned District Judge has not taken note of the aforesaid contradictions as also the improbability of PW-2 Shri Vinod Sood having been contacted by the parties in the Court premises, on 30th June, 1996, which was a Sunday. 21. Learned trial Court has also not taken into consideration the statement of DW-2 Col. V.S. Rana, who himself is a retired doctor from the Indian Army, that late Shri Ran Vijay Singh was unable to move, on account of radiotherapy treatment, which he was getting at SGPGIMS, Lucknow. Learned trial Court has observed that as per record Ex. CW-1/A and Ex. CW-1/B, proved by CW-1 Dr. …11… Hem Chandra, late Shri Ran Vijay Singh was given a boost of radiotherapy on 28th June, 1996 and after that boost he could have travelled and reached Shimla from Lucknow by 30th June, 1996. However, the learned trial Court has not taken note of the fact that on 1st July, 1996, late Shri Ran Vijay Singh was present in SGPGIMS, Lucknow and was attended upon by the doctors and required to visit again on the next following day, as is clear from document Ex. CW-1/A. 22. Now, if according to the plaintiff, late Shri Ran Vijay Singh was present in the office of Shri Vinod Sood, Advocate, in the evening, on 30th June, 1996, it could not have been possible for him to be present in the SGPGIMS, Lucknow, on 1st July, 1996, especially when he was seriously sick, undergoing radiotherapy and presumably very weak and unable to undertake constant journey, throughout the night intervening 30th June, 1996 and 1st July, 1996. 23. Again, though endorsement Ex. PW-2/C and the receipt for Rs.1,19,276/-, Ex. PW-2/C/I, were prepared on the same day, i.e. .30th June, 1996, as per case of the plaintiff, but apparently they have been typed on two different dates and occasions, though on the same typewriter. The reason is that the print of endorsement Ex. PW-2/C is dim, while that of receipt Ex. PW-2/C/I is much darker. …12… 24. It also appears from the evidence on record that the contents of endorsement Ex.PW-2/C and receipt Ex.PW-2/C/I are concocted and probably the same were not even in existence when the notice, Ex. PW-2/D, dated 28th March, 1997, was issued to defendant Prabha Singh. As per endorsement Ex. PW-2/C and receipt Ex. PW-2/C/I, a sum of Rs.1,19,276/- had been paid, in cash, on 30th June, 1996, a sum of Rs.25,000/- paid, earlier at the time of execution of Ex. PW-1/A, was adjusted and another sum of Rs.45,724/- paid to one Shri Ravi, on behalf of late Shri Ran Vijay Singh, had also been adjusted against the sale consideration, for the land agreed to be sold. However, in the notice, Ex. PW-2/D, it is mentioned that out of the total sale consideration of Rs.4,50,000/-, a sum of Rs.1,10,000/- had been received by late Shri Ran Vijay Singh, at the time of execution of the agreement, dated 1st July, 1995, i.e. Ex. PW-2/A and a sum of Rs.1,90,000/- had been received by him on 30th June, 1996. Recital in the notice, Ex. PW-2/D, that a sum of Rs.1,90,000/- had been received by late Shri Ran Vijay Singh on 30th June, 1996, suggests that endorsement Ex.PW-2/C and receipt Ex. PW-2/C/I were prepared subsequent to the issue of the said notice and not on 30th June, 1996, as claimed by the plaintiff, because while in the notice it is written that Rs.1,90,000/- were received by late Shri Ran Vijay Singh, on 30th June, 1996, but in the endorsement and receipt it is written that only …13… Rs.1,19,276/- were received on that date and rest of the amount had been adjusted. 25. All the witnesses examined by the plaintiff to prove the endorsement Ex. PW-2/C are interested. PW-3 Prabha Bhagra is plaintiff herself and PW-2 Shri Vinod Sood is her counsel. The plaintiff herself stated that Shri Vinod Sood was her Advocate. Also, the fact that notice, calling upon the defendants to execute the sale deed, after the death of Shri Ran Vijay Singh, was issued by Shri Vinod Sood, suggests that he had been counseling the plaintiff, at the relevant time. The third witness examined to prove the execution of the endorsement is a brother of the plaintiff, namely PW-6 Vivek Chand Spehia, who claims to be an attesting witness of the agreement. No independent or disinterested witness was associated for the attestation of the endorsement, though initial agreement Ex. PW-1/A was attested by two Advocates, namely Shri Rajiv Sharma and Shri Parmod Bhimta. 26. Learned District Judge has himself compared the purported signatures of late Shri Ran Vijay Singh on the endorsement Ex. PW-2/C and receipt Ex. PW-2/C/I and the signature on the agreement of 1991, Ex. PW-7/A and concluded that the endorsement and the receipt are genuine. Learned District Judge ought not to have acted as an expert, especially when the above-discussed evidence suggests that late Shri Ran Vijay Singh could possibly have …14… not been at Shimla on the date of the execution of the said endorsement and the receipt. 27. In view of the above discussion, it is held that the endorsement, Ex.PW-2/C and receipt Ex.PW-2/C/I, which the plaintiff has sought to use as part of the original agreement, Ex.PW-2/A, were not executed by late Shri Ran Vijay Singh. The same appear to have been made falsely. Hence, the plaintiff is not entitled to the discretionary relief of specific performance of agreement to sell. Consequently, appeal is accepted, judgment and decree of the trial Court, decreeing the suit of the respondent-plaintiff, are set aside and respondent-plaintiff’s suit is dismissed, with costs of the appeal also the suit. Appeal stands disposed of accordingly. November 7, 2009(sd) ( Surjit Singh ), J.