RSA No.2216 of 1995(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2216 of 1995(O&M) Date of decision: 11.12.2008 Makhtool Singh ......Appellant Versus Mehar Singh and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. B.R. Mahajan, Advocate with Ms. Naina Goyal, Advocate for the appellant. Mr. Anupam Bhardwaj, Advocate for the respondents. * * * Rakesh Kumar Garg, J. Makhtool Singh-defendant has filed this appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff- respondents for possession by way of specific performance of the contract for sale dated 2.9.1985 executed by the defendant i.e. the appellant and proforma respondents No.4 and 5 has been decreed with costs. Makhtool Singh-appellant, Sarwan Singh defendant and Sardul Singh (since deceased) executed an agreement to sell the property in dispute vide agreement dated 2.9.1985 in favour of the plaintiff- respondent for a total consideration of Rs.40,000/- and Rs.16,000/- was paid as earnest money at the time of the execution of the agreement. The sale deed was agreed to be executed within a period of 11 months from the date of the execution of the agreement after receiving balance consideration before the Sub Registrar. It was alleged that the plaintiff- respondents have always been ready and willing to perform their part of the contract but the defendant-appellant committed breach of contract and did RSA No.2216 of 1995(O&M) 2 not execute the sale deed in terms and conditions of the agreement Ex.P1 in spite of the fact that a registered notice was sent on 14.8.1988 to the appellant and other defendants asking them to get the sale deed executed and registered in the office of the Sub Registrar on 24.8.1988 after receiving the balance sale price. The plaintiff-respondents went to the office of the Sub Registrar on that day but the appellant and other defendants did not turn up. Sardul Singh-defendant died during the pendency of the suit and his legal representatives were impleaded and substituted in his place. None appeared on behalf of the LRs of Sardul Singh and Sarwan Singh- defendant No.2. They were proceeded against ex parte. Makhtool Singh-defendant appeared and filed written statement wherein he denied the execution of the agreement and receipt of the earnest money of Rs.16,000/- at the time of the execution of the agreement. It was also denied that the sale deed was to be executed within 11 a period of months from the date of the execution of the agreement and the balance price was to be paid before the Sub Registrar. He also denied having received the notice from the plaintiff-respondents asking him to be present in the office of the Sub Registrar for the execution and registration of the sale deed on 14.8.1988. The agreement dated 2.9.1985 was said to be a forged and fabricated document. The price of the property in dispute was said to be Rs.1,50,000/- and not Rs.40,000/-. It was alleged that the mortgage deed was converted into an agreement to sell, in order to grab the property in dispute. It was said that the plaintiff- respondent is a money lender. It was therefore, prayed that the suit be dismissed with costs. From the pleadings of the parties, following issues were framed by the trial Court:- RSA No.2216 of 1995(O&M) 3 1. Whether defendant executed an agreement to sell the suit property dated 2.9.1985 in favour of the plaintiff? If so, its effect? OPP. 2. Whether agreement in question is forged document? OPD. 3. Whether alleged transaction between the parties was loan transaction, if so, its effect? OPD 4. Whether suit is not maintainable in the present form? OPD 5. Whether plaintiffs have always been ready and willing to perform their part of contract? OPD 6. Whether plaintiff is a money lender, if so, to what effect? OPD 7. Whether plaintiffs are entitled to the relief of possession by specific performance of contract pertaining to suit property? OPD 8. Relief. After recording evidence of the parties and hearing the learned counsel for the parties, the suit of the plaintiff was decreed for possession by way of specific performance of agreement dated 2.9.1985 of the property in dispute and the trial Court directed the plaintiff to deposit the balance sale consideration of Rs.24,000/- in the Court within a period of one month vide judgment and decree under appeal. Feeling dissatisfied with the judgment and decree of the trial Court, the defendants filed an appeal which was dismissed by the Additional District Judge, Amritsar vide impugned judgment and decree dated 3.5.1995. RSA No.2216 of 1995(O&M) 4 The present appeal has been filed by defendant-Makhtool Singh challenging the aforesaid judgment and decrees of the Courts below raising the following substantial questions of law:- “1. Whether agreement to sell dated 2.9.1985 (Ex.P- 1) was in the nature of loan transaction executed with the object to ensure payment of amount and plaintiff- respondent is not entitled to decree of specific performance of the agreement in the facts and circumstances of the case? 2. Whether there is unexplained delay in seeking specific performance of agreement to sell dated 2.9.1985 (Ex.P-1) disentitling the plaintiff-respondents from the relief of specific performance?” In support of his case, learned counsel for the appellant has vehemently argued that it stands proved on record that the plaintiff- respondent-Mehar Singh was a money lender and has been lending money to various people and has been preparing documents relating to immovable property of the loanees and it has been further proved that it was in order to clear the loan transaction and interest that the signatures of the appellant were obtained on the blank stamp papers on the representation that fresh mortgagee deed of house in dispute is to be executed covering the entire amount of loan and the agreement to sell in question was subsequently prepared on those documents in stead of agreement to mortgage. It was further argued by the learned counsel for the appellant that after execution of the alleged agreement dated 2.9.1985, the plaintiff-respondent kept silent for about three years and had allegedly sent a notice on 14.8.1988 for the first time asking the appellant to execute the sale deed and in such circumstances, the specific performance of such RSA No.2216 of 1995(O&M) 5 documents cannot be granted to the plaintiff-respondents and the Courts below should have declined the discretionary relief of specific performance of the alleged agreement to sell. Thus, on the basis of the above said contention, the learned counsel for the appellant has prayed that this appeal be accepted and judgment and decrees of the Courts below be set aside. On the other hand, learned counsel for the respondents has vehemently argued that the agreement to sell in question has been proved beyond any doubt and the Courts below on appreciation of evidence have recorded a concurrent finding of fact and no substantial question of law arises in this appeal and the same is liable to be dismissed. I have heard learned counsel for the parties and perused the record. The appellant has taken a plea that the agreement Ex.P-1 is a forged and fabricated document as the same was never executed by him in favour of the plaintiff-respondents and that the plaintiffs forged the mortgage deed to an agreement to sell in respect of the property in dispute and that the agreement to mortgage was in fact executed as a loan transaction. In support of his plea, learned counsel has referred to mortgage deed Ex.DW1/1 which was executed by the appellant in favour of wife of Mehar Singh for a consideration of Rs.1,000/- in the year 1972. However, the Courts below have found that this was a made up plea in order to avoid the due execution of the sale deed in the terms and conditions of the agreement Ex.P-1. A perusal of the aforesaid mortgage deed Ex.DW1/1 would show that Makhtool Singh appellant was alone a party who executed the aforesaid mortgage deed in favour of Darshan Kaur wife of Mehar Singh-plaintiff in the year 1972 for a total sum of Rs.1,000/-. On the other hand, the property in question is the ownership RSA No.2216 of 1995(O&M) 6 of the appellant and two other defendants. All were not parties to the mortgage deed Ex. DW1/1 whereas all the three i.e. appellant and other two defendants were party to the agreement to sell the property in dispute in favour of all the plaintiffs. As such, it cannot be said that any mortgage deed or agreement to mortgage deed was fabricated and converted into a document to sell the property in question in favour of the plaintiff- respondents. However, there is no evidence to prove the said fact. It is well settled that the factum of forgery has to be proved like any other fact and the appellant and the other defendants have not been able to prove the same. It may also be mentioned that the mortgage deed Ex.DW1/1 is coming from the custody of the appellant which is said to have been fabricated and converted into an agreement to sell. This mortgage deed could not be in existence on the date of execution of agreement Ex.P-1 on 2.9.1985 because in case this mortgage deed had subsisted it would have come from the custody of Darshan Kaur wife of Mehar Singh. Thus, agreement in dispute cannot be said to be executed to secure the loan transaction as alleged. No fault can be found with the findings of the Courts below in this regard. The second contention of the appellant is also liable to be rejected. In this case, from the facts, it is crystal clear that time was not the essence of contract. Agreement to sell Ex.P-1 was executed between the parties on 2.9.1985 and the sale deed was agreed to be executed within a period of 11 months. The suit was filed in the Court on 1.9.1988. Three years' limitation period is prescribed to file a suit for specific performance from the date of accrual of cause of action. Thus, it does not suffer from any laches and delay. The plaintiffs have proved that they were always willing and ready to perform their part of the contract and are still ready and willing to perform their part of contract. Undisputedly, the defendants have RSA No.2216 of 1995(O&M) 7 not entered into any deal for sale with the third party during the intervening period. They have also not caused any improvement in the suit house. Merely because the value of the property might have got increased to some extent does not disentitle the plaintiff to seek a decree for specific performance. There is nothing on record which disentitles the plaintiff- respondents for the grant of decree of specific performance of the agreement to sell in question. Learned counsel for the appellant was in fact unable to raise any argument in this regard. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. December 11, 2008 (RAKESH KUMAR GARG) ps JUDGE RSA No.2216 of 1995(O&M) 8