Smt. Savitri Devi vs Smt. Gunja Devi
2010 Latest Caselaw 5633 Del

 R-18
 *             IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                          RFA No. 117/1999
 %                                                 10th December, 2010


 SMT. SAVITRI DEVI                                       ...... Appellant
                                       Through:    Mr. Dinesh Garg,
                                                   Advocate.
                            VERSUS

 SMT. GUNJA DEVI                                   .... Respondent

                           Through:                  None .
 CORAM:
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

VALMIKI J. MEHTA, J (ORAL)

1. By the present appeal under Section 96 of the Code of Civil

Procedure, 1908 (CPC), the appellant/plaintiff seeks setting aside of the

impugned judgment and decree dated 22.10.1998 whereby her suit for

specific performance was dismissed. The trial court has held that the

agreement to sell dated 15.5.1991 relied upon by the

plaintiff/appellant was not genuine and in fact the genuine agreement

was the earlier agreement dated 20.3.1991 relied upon by the

respondent and, which was breached by the appellant /plaintiff as the

required payment was not made under the same. In the two

agreements the first-one, relied upon by appellant being the

agreement dated 15.5.1991 and the second one relied upon by the

respondent/defendant being the agreement dated 20.3.1991, there are

fundamental differences by which it is shown that there was no

consensus ad idem because whereas the first agreement was for an

area of 1250 sq. yard the second agreement was for an area of 1008

sq. yard. Also whereas in the agreement dated 15.5.1991, the

consideration payable was Rs. 100/- per sq. yard, in the earlier

agreement it was Rs. 600/- per sq. yard. Further, in the agreement

relied upon by the appellant, the buyer was only the appellant, in the

other agreement buyers were Sh. Pritam Das and Sh. Tikam Das.

Therefore, the basic requirements of a categorical agreement or an

agreed document containing the agreed terms was found not to exist

between the parties.

2. After completion of pleadings, the following issues were framed

by the trial court :-

"1. Whether the defendant executed an agreement to sell dated 15.5.91 in favour of the plaintiff? OPP

2. Whether the defendant has received Rs.50,000/- as earnest money from the plaintiff on 15.5.91 at the time of execution of the agreement? OPP

3. Whether the possession of the open land in dispute was handed over to the plaintiff in part performance of the agreement? OPP

4. Whether the plaintiff has been ready and willing to perform her part of the agreement and even ready and willing to do so now? OPP

5. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP

6. Whether the plaintiff is entitled to the decree of specific performance of the agreement to sell dated 15.5.91? OPP

7. Whether the plaintiff is entitled to the decree of damages in the alternative, if so, to what extent? OPP

8. Whether the plaintiff is entitled to decree for injunction? OPP

9. Whether the agreement to sell dated 15.5.91 is a forged document. If so, its effect? OPD

10. Who committed breach of the agreement if any? Onus on parties.

11. Relief."

3. The trial court has very exhaustively examined and given

findings on the relevant issues being Issue Nos. 1 and 9 in paras 5 to 7

of the judgment, with which I wholly concur and which read as under:-

"5. Onus of proving issue No.1 was on the plaintiff and for issue No.9 was on the defendant. The plaintiff examined her attorney Tikam Das as the sole witness. Testimony of Tikam Dass is that on 15th May 91 in his presence defendant executed the agreement Ex.PW1/2. He identified the signature of Smt. Gunjan Devi defendant on this document and he stated that payment of Rs.50,000/- as earnest money was made on that date. His testimony is silent as to who was instrumental in entering into this transaction between the plaintiff and the defendant. How plaintiff came to know about the defendant‟s intention to sell the plot and when negotiation were held etc. On the other hand defendant has examined D.W.1 Sushiil Kumar and DW 2 Sat Narain. Susheel Kumar is husband of the Gunjan Devi and Sh. Sat Narain is father in law of the defendant. Both of them have stated that it was property

dealters Balkar Singh and Baldev Singh who had called upon them and informed about the intention of Tikam Dass and Pritam Dass to purchase the property. Both of them have stated that they had asked the property dealers to find out buyers and they wanted to sell 1008 sq. yards of the land. This testimony of D.W 1 and DW 2 has gone unchallenged. It is not suggested to either of the witness that Balkar Singh and Baldev Singh were not involved in the transaction or the plaintiff‟s husband and attorney were not introduced to the defendant‟s husband by these property dealers. It is also naturally that two unknown persons cannot come into contract for sale of property unless there is advertisement in the newspaper or there is involvement of property dealers. I therefore come to the conclusion that testimony of P.W.1 was lacking confidence and was not a true account of the transaction. The other facts which throw doubt on the testimony of P.W.1 is that PW1 has stated that agreed rate of land was Rs.100/- per sq. yd. The land was also having structure of 2 rooms and it has come in the testimony of D.W1 that about Rs.70,000/- to Rs.75,000/- was spent on the construction of these two rooms. It is also undisputed fact that the land was purchased by the defendant in Oct. 89 and thereafter defendant had put structure on the land. It has not been suggested to D.W 1 that the amount of Rs.70,000/- to Rs.75,000/- was not spent on the structure. A person who has spent Rs.70,000/- to Rs.75,000/- on the construction of two rooms would not sell the structure free of costs alongwith land at the rate of Rs.100/- per s. yard.

6. The other factor which creates doubt on the testimony of P.W.1 is moving of application for „no objection‟ before Tehsil Dar on 14th May 1991, if there was no agreement to sell in existence between the plaintiff and the purchaser upto 14.5.1991, there would have been no question of making application before the concerned authority for obtaining no objection certificate. The application is dated 13th May 91. It is not the case of the plaintiff that any talks had taken place between the parties on 13th May 91. His case is that he had drafted the agreement on 14th May 91. One more fact that shows incredibility of testimony of PW 1 is that his first stating that Gunjan Devi signed in his presence and it is stated subsequently that a woman who signed the agreement was in Pardh and he did not know who was the woman.

7. On the other hand the testimony of D.W 1 and DW2 is very emphatic and natural and their testimony is supported by D.W 3 who was the property dealer in this case. It has gone unrebutted that Baldev Raj was the property dealer. Baldev Raj who has appeared as D.W 3 produced the diary maintained by him, in the court in which he had recorded the transaction. The perusal of the diary would show that entry in respect of the transaction of the land in question was natural entry and it was made in the similar manner as other entries were made in the diary. The ink had faded out due to soiling of all material pages of the diary in the same manner. The entry was natural entry and was not a fabricated entry and in this entry date of agreement has been shown as 20.3.91 and earnest money at Rs.50,000/-. Rate has been shown as Rs.600/- per sq. yards and the area to be sold has been shown as 1008 sq. yards. The date of final payment has been shown as 20th May 1991. The testimony of this witness is totally creditworthy and the document produced by him is very natural and maintained during the course of business. Although the witness has stated that he was not having any letter head and not doing business under any name of the firm of property dealer, but that does not discredit his evidence. Moreover the document mark X is photo copy of the original receipt executed between the parties gives support to the version of the defendant witness. Unless the agreement to sell had been entered between Smt. Gunjan Devi the proposed purchaser, there would have been no question of making application for no objection certificate prior to 15th May 1991. The very fact that application for no objection was made on 13th May 1991 shows that there was an agreement in existence prior to 13th May 1991. The testimony of D.W1 and DW2 is more trustworthy and believable as it shows happening of transaction in the natural manner through property dealer while testimony of P.W.1 is not trustworthy as it is neither natural nor it explains how the plaintiff came into contract with the defendant for sale of this property. Moreover it does not seem probable that defendant would have agreed to sell the land measuring 1250 sq. yard and the structure for a sum of Rs.1,25,000/-. It is very natural that receipt is always given to the person who pays money and the receiver of the money only retains the copy. Defendant in this case was receiver of the earnest money. She at the time of receiving earnest money had executed the receipt. She had produced a copy of the receipt which is mark X, and the statement of defendant witness that original of this

was with the plaintiff is believable. I therefore, come to the conclusion that actual agreement to sell in respect of the land was entered on 20th March 1991 and it was in respect of 1008 sq. yards as is recorded in Mark X and in the diary of D.W.3 Ext. DW 3/1, and the earnest money was also paid on 20th March 1991. At the time of paying earnest money, the plaintiff husband and attorney were negotiator and they gave payment of Rs.50,000/- without disclosing as to in whose favour they would enter the purchase agreement of the property. Mark X to my mind is the true copy of that receipt which was executed at the time of this transaction and the agreement dated 15 th May 91 produced by the plaintiff in the court is not a genuine agreement which was entered into between the parties. This seems to be created later on by the plaintiff when the plaintiff failed to pay the amount within 2 months and failed to obtain „no objection‟ certificate. I therefore, decide issue No.1 and 9 accordingly against the plaintiff and in favour of the defendant."

4. The aforesaid findings show the following :-

(i) The agreement as relied upon by the respondent dated

20.3.1991 was in fact the real agreement between the parties and the

agreement dated 15.5.1991 relied upon by the appellant was not a

genuine document.

(ii) There was no question of the consideration being only Rs. 100/-

per sq. yard when the earlier agreement dated 20.3.1991 stated

consideration at Rs. 600/- per sq. yard.

(iii) The fact that the form for obtaining No Objection Certificate

(NOC) from the Revenue Authorities was found to have been signed on

13.5.1991, i.e. prior to the agreement dated 15.5.1991 and not

disputed by the appellant, shows that the agreement dated 15.5.1991

being of a subsequent date could not be genuine.

(iv) Whereas the NOC dated 13.5.1991 which was filed by the

respondent being Ex. PW-1/D-1 contained the consideration as Rs.

1,21,000/-, the NOCs relied upon and filed by the appellant being Ex.

DW-1/P-1 (dated 3.7.1991) and DW-1/P-2 (dated 8.7.1991) contained

the consideration as Rs. 1,25,000/- again adding to the discrepancies

as to the existence of a valid agreement between the parties.

(v) That, the appellant has deliberately concealed the original

agreement dated 20.3.1991 inasmuch as the original was bound to be

with the appellant as she was the purchaser who had paid a sum of Rs.

50,000/- as evidenced in the Agreement dated 20.3.1991and therefore

would have the original agreement with her and the respondent could

only have a photocopy.

To this I may add that there are the following additional points

which show the lack of genuineness of the agreement relied upon by

the appellant dated 15.5.1991:-

(i) The agreement dated 15.5.1991 mentions that possession was

with the appellant. Possession is one of the most important aspects

and a valuable consideration under an agreement to sell. The fact of

the matter however is that possession admittedly is with the

respondent, thereby clearly showing that the agreement dated

15.5.1991 is not genuine.

(ii) The agreement dated 15.5.1991 mentions the receipt of

payment of Rs. 50,000/- but it is not stated whether such payment was

already received, was received simultaneously to the agreement dated

15.5.1991, was received in cash or was received by cheque or pay

order/bank draft. Not only that, as per normal practice whenever

payment is made under an agreement to sell there is also a receipt

simultaneously executed for the amount paid, and which receipt is

conspicuous by its absence in the present case, thus again adding to

the improbabilities to the genuineness/validity of the Agreement dated

15.5.1991.

5. I find that the findings given by the trial court are completely in

accordance with the law and the facts as found in the present case.

There is no perversity or illegality in the findings arrived at by the trial

court. Sitting as an Appellate Court, it is not permissible for the court

to interfere with a well reasoned and detailed judgment of the trial

court merely because another view is possible. I, therefore, do not find

any reason to interfere or set aside the findings and conclusions as

arrived at by the trial court.

6. Before this Court, learned counsel appearing for the appellant

has impugned the judgment of the trial court on the following grounds:

(i) That the agreement dated 20.3.1991 and marked as „X‟ for

reference has not been signed by the buyer and hence

cannot be said to be an agreement. (I may note that the

document in question has been wrongly marked and not

exhibited because in the statement of DW-1 this document

has been proved. In the evidence of the witness Sushil

Kumar, DW-1, firstly, the reason for production of the

photocopy in stead of the original has been given that the

original was with the appellant being the natural position of a

buyer retaining an original document evidencing the

transaction including proof of payment. The witness has also

stated that he has signed the receipt and also identified

signatures of the Property Dealer Sh. Balkar Singh on the

document as a witness . The receipt/agreement dated

20.3.1991 was said to have been duly signed by the

executants);

(ii) The Balkar Singh who was the second witness on the

agreement dated 20.3.1991 has not been produced as a

witness;

(iii) No notice was given under Order XII Rule 8 CPC for

production of the original agreement dated 20.3.1991 to the

counsel for the appellant;

(iv) Sh. Baldev Raj, the broker, deposed as DW-3, but, his

testimony has no value because he was not a witness who

had signed the agreement dated 20.3.1991;

(v) The agreement dated 20.3.1991 was written on a stamp

paper which was not purchased by the respondent and who

was bound to pay the stamp duty of the agreement in terms

of the provisions of the Stamp Act, 1899. Qua this stamp

paper it is also urged that the same was purchased on

25.1.1991 when no negotiations were going on;

(vi) The cross-examination of the Property Dealer DW-3 Sh.

Baldev Raj shows that the Agreement dated 20.3.1991 is a

forged document, inasmuch as prior to 20.3.1991 the witness

DW-3 admits that he did not know Sushil Kumar, husband of

the seller-respondent-Gunjan Devi;

(vii) That the Diary of Baldev Raj filed as Ex. DW-3/1 relied upon

by the trial court lacks credibility for being treated as

evidence. It is also stated that the Diary was filed after seven

years and hence is therefore forged and fabricated;

(viii) The NOC‟s being DW-1/P-1 and DW-1/P-2 show that all the

ingredients of an agreement to sell existed entitling the suit

to be decreed.

7. Before I deal with the contentions and arguments as raised by

the appellant, I note that not even one of the contentions as raised

above are found mentioned in the grounds of appeal in a

clear/categorical averment. This, I am stating because this Court is not

hearing final arguments sitting as a Court of original jurisdiction, and

as an Appellate Court, what has to be shown by the appellant are the

alleged shortcomings in the impugned judgment and decree for being

set aside which are pleaded as specific grounds. Unless and until, such

grounds are specifically taken up in appeal to impugn the judgment, it

could not be said that the appellant was aggrieved against those

aspects which are not found in the grounds and are now sought to be

raised for the first time. A reference to each of the arguments as

raised above shows that even if there were some points which have

been urged before the trial court, however, a final decision of a court is

after considering the arguments of both the parties and which are

ultimately weighed in a scale so as to arrive at a conclusion/decision

on the balance of probabilities. Surely, in every case there will be

certain pros and cons with respect to the case of each party, however,

once all these pros and cons are put in a melting pot for arriving at a

conclusion, it cannot be said that the contentions raised by one party

must necessarily prevail as against the contentions of the other party

which have prevailed. The trial court in the facts of the present case

arrived at the findings and conclusions after weighing all the factors as

existing in the present case, including the testimonies of the witnesses,

the documents, the probabilities, the circumstances and so on. These

findings and conclusions of the trial court have already been re-

produced above which are not in any manner illegal or perverse to

entitle this court to interfere as an appellate court. Accordingly, unless

and until the arguments urged before this Court are such which in

themselves would result in the trial court judgment being held to be

illegal or perverse, such arguments cannot succeed merely because an

alternative view is possible.

8. Now, let us take the arguments which have been addressed by

the appellants one by one. With respect to the first argument that the

agreement dated 20.3.1991 is not signed by both the parties, all that

needs to be said is that an agreement in law does not to have to be

signed by both the parties. A contract in law can be partly oral, partly

in writing, wholly oral or wholly in writing, partly express and partly

implied or any of the combinations of the above. The contract in

question in the present case is in the form of a receipt which is

executed by the seller showing the details of the transaction including

the receipt of the advance amount. The identification of the property

is there, the area of the property is there, the price is mentioned and

also the buyer. Clearly therefore, the agreement dated 20.3.1991

which is marked as „X‟, and in fact is otherwise a proved document and

which ought to have been exhibited as a concluded contract in the

eyes of law, is a valid contract and it cannot be argued otherwise

merely because it is not signed by the appellant/buyer.

9. The second argument was that the witness No. 2 of this

agreement dated 20.3.1991, namely, Sh. Balkar Singh was not

produced. In my opinion, this cannot be said to be a ground which can

in any manner upset the finality and conclusiveness of the agreement

dated 20.3.1991. It is not a requirement of law that all the witnesses

to an agreement must be summoned to prove an agreement if

otherwise the same has been proved in accordance with law. In fact, if

we accept this argument, then the agreement relied upon by the

appellant /plaintiff is also liable to fail on this very ground because the

appellant has not lead the evidence of the second witness Sh. Ram

Chander Balani in the case.

10. The argument that no notice was given under Order 12 Rule 8

CPC for production of the Agreement dated 20.3.1991 is a self

defeating argument because the case of the appellant was that no

original Agreement dated 20.3.1991 exists. Also as per the second

proviso to Section 66 of the Indian Evidence Act, 1872 no notice is

required because the appellant knew that he was required to produce

the Agreement dated 20.3.1991.

11. The argument that the stamp paper on which the agreement

dated 20.3.1991 has been written was purchased in the name of Sh.

Ram Swarup would at best mean that the stamp paper was purchased

by one Ram Swarup. However, it is not the requirement of the Stamp

Act that stamp value of the transaction by means of a stamp paper

must only be purchased by a party to transaction. I have not found

any such provision in the Stamp Act. The relevant provision in the

Stamp Act pertains only to the person who is legally liable to pay the

stamp duty, however, this cannot mean that if someone-else, other

than a party to a transaction pays the stamp duty and purchases the

stamp paper the transaction would be liable to be struck down on this

ground.

12. The argument that the admission of witness DW-3 that he did not

know Sushil Kumar (husband of respondent) prior to 20.3.1991 should

be treated as conclusive and lack of credibility of a witness is again an

argument devoid of merits. This argument has no legs to stand upon

because it is not inconceivable that a transaction may well go through

at the very first day when it is being negotiated. In any case, merely

because two views are possible, cannot mean that the statement of

the witness should not be believed, when the same has been believed

by the trial court.

13. So far as the issue of the validity of the Diary which had been

relied by the trial court being Ex. DW-3/1 to show that it is a natural

document, I wholeheartedly agree with the findings of the trial court

because I have myself seen this Diary and even a cursory reference to

the same shows that it is a genuine document and there is nothing

unnatural or fabricated about the same. It is an entire Diary in which

transactions appear to have been noted in it on some pages in a

particular system which the person who maintained the Diary thought

it fit. I, therefore, reject the argument that the evidence of the Diary

DW-1/3 ought to be rejected. Once again even if two views are

possible, this Court will not interfere with the findings arrived at by the

trial court because the findings of the trial court cannot be said illegal

or perverse in having relied upon in Diary DW-1/3.

14. The last argument is based upon the fact that the document Ex.

PW-1/D-1 dated 13.5.1991 has all the ingredients of an agreement to

sell and being filed by the respondent/defendant themselves are

enough to prove the transaction in question. In fact, in my opinion,

this argument is almost like the answer begging the question because

whereas this document is of 13.5.1991, the agreement relied upon by

the appellant is dated 15.5.1991. In fact, all these aspects have been

gone into in detail by the court below to hold that the agreement dated

15.5.1991 is not a genuine document and the same was fabricated by

the appellant to overcome the breach of his obligations under the

original document dated 20.3.1991. Also, the argument raised on the

basis of documents dated DW-1/P-1 and DW-1/P-2 being the NOCs

dated 3.7.1991 and 8.7.1991, is not an argument which can in any

manner shake the fact that there was in fact a valid agreement dated

20.3.1991 and that the agreement dated 15.5.1991 is a

manipulated/fabricated document. In any case, various evidences

have been balanced by the trial court and a finding arrived at, as

required in a civil case on balance of probabilities. Therefore, I do not

find that the judgment of the trial court should be interfered with on

this basis at all.

15. In view of the above, I uphold the impugned judgment and

decree and its findings and conclusions to hold that the plaintiff is not

entitled to specific performance. In my opinion, in a case such as the

present where there is confusion and lack of clarity with regard to

price, the area and the parties to a transaction, there ought not to be

granted specific performance because the same would result in

irreparable and grave prejudice to the respondent. Specific

performance of contract is granted only on the basis of clear cut

agreement and established breaches thereof, besides the facts that

equities of the transaction demand that specific performance is

required to be granted. The facts and the circumstances in the present

case are such that the trial court is justified in passing the impugned

judgment and decree dismissing the suit for specific performance. The

present appeal is, therefore, dismissed, leaving the parties to bear

their own costs.

Trial court record be sent back.

DECEMBER 10, 2010                            VALMIKI J. MEHTA,J
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