Raj Singh & Ors vs Sudesh Gupta
2011 Latest Caselaw 6030 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.474/2009

%                                                       9th December, 2011

RAJ SINGH & ORS                                 ..... Appellants
                               Through:   Ms.Priyanka &
                                          Mr. M.K.Bhardwaj, Adv.
                      versus

SUDESH GUPTA                                      ..... Respondent

Through: None.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Vide order dated 1.11.2011 this case was listed for today as no

one was present for the respondent on 1.11.2011. Today even in spite of

passover, no one appears for the respondent. I have therefore perused the

record and am proceeding to dispose of the appeal.

2. The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure, 1908 is to the impugned

judgment of the Trial Court dated 24.10.2009 by which the suit for specific

performance filed by the respondent/plaintiff was decreed.

3. The facts of the case are that the respondent/plaintiff filed the

subject suit for specific performance alleging that the appellants/defendants

had entered into an agreement to sell dated 18.12.1997 (Ex.PW2/3) with

them for selling 18 bighas and 19 biswas of land situated in the revenue

estate of village Mohammadpur Ramzanpur, Delhi. The area of 18 bighas

and 19 biswas would translate to about nineteen thousand sq. yds. of land.

The case of the respondent/plaintiff was that the total sale consideration was

fixed at Rs.4,95,000/-. A sum of Rs.1,00,000/- was stated to have been paid

in cash on the date of the agreement to sell and so recorded in a receipt of

the same date, Ex.PW1/2. It was further pleaded that an amount of

Rs.1,00,000/- was further paid to the appellants/defendants on 5.1.1998 and

a further sum of Rs.1,00,000/- was again paid on 16.3.1998. It was pleaded

that since the appellants/defendants failed to take the necessary no-objection

certificate from the Revenue Authorities or the income tax clearance

certificate, the appellants/defendants therefore breached the agreement to

sell, and consequently the subject suit for specific performance was filed.

4. The appellants/defendants contested the suit and pleaded that

the agreement to sell is a forged and fabricated document inasmuch as the

actual agreement of the appellants/defendants was not with the

respondent/plaintiff but with one Sh. Pawan Kumar Gupta and the sale

consideration was Rs.11,01,000/- per acre and not a total amount of just

`4,95,000/-. It was pleaded that there was no question of sale of the land in

question for a paltry amount of Rs.4,95,000/-. A crucial aspect pleaded by

the appellants/defendants was that whereas the agreement to sell talked of

land to be sold of 18 bighas and 19 biswas, however, this figure of 18 bighas

19 biswas was the figure picked-up from the Revenue Records. Though

there was no change in the Revenue Records, however, the

appellants/defendants were only owners of 15 bighas and 11 biswas of land,

inasmuch as portion of the land had already been acquired by the

Government way-back in the year 1983-84. It was pleaded that the total sale

consideration for 15 bighas and 11 biswas actually comes to Rs.34,68,859/-

and therefore it is inconceivable for the land to be allegedly sold for

Rs.4,95,000/-. It was pleaded that Sh. Pawan Kumar Gupta had taken

certain signatures on certain blank documents promising to type the correct

agreement to sell, however, the subject agreement to sell was forged and

fabricated inasmuch as said Sh.Pawan Kumar Gupta wanted to pay most of

the amount in cash/black money which was refused by the

appellants/defendants.

5. After the pleadings were completed, the Trial Court framed the

following issues:-

"i) Whether the plaintiff has no locus standi to file the present suit, if so what its effect? OPD

ii) Whether the suit is bad for non-joinder of necessary parties as mentioned in P.O.No.5? OPD

iii) Whether the alleged contract is unconscionable as market value of the property in question was Rs.11,01,000/- per acre at the time of execution of the alleged agreement, if so, what is its effect? OPD

iv) Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD

v) Whether this court has no pecuniary jurisdiction as alleged in WS? OPD

vi) Whether the suit is within limitation? OPP

vii) Whether the deft had entered into an agreement to sell of their property for a total consideration of Rs.4,95,000/- and had received Rs.1 lac at the time of execution of the alleged agreement to sell? OPP

viii) Whether the plaintiff remained ready and willing to perform her part of contract and is still ready to the same? OPP

ix) Whether the plaintiff is entitled to a decree for possession by way of specific performance as claimed?

            OPP

             x)    Relief."

6. I may note that the Trial Court has on very important issues

which were involved in the present case given extremely cursory findings.

Important aspects as to the agreement to sell being forged and fabricated

because the same contains an area/land which was never owned by the

appellants/plaintiffs, or the documents being signed in blank or the sale

consideration could never have been a paltry sum of Rs.4,95,000/- have not

been properly dealt with. In order to appreciate the cursory nature of

findings, I would seek to reproduce paras 8, 10, 11 and 13 of the judgment

which read as under:-

"8.Finding on Issue No.1 Onus of proving this issue was on the defendant whose case is that they have not entered into any agreement to sell with the plaintiff. In fact, they have entered into the agreement to sell with Shri Pawan Kumar Gupta who manipulated the documents. I have perused the Agreement to Sell Ex.PW-2/3 which clearly shows that defendants had entered into Agreement to Sell with the plaintiff. This fact is corroborated by evidence by attesting witness. Further it is contended by counsel for defendant that plant has not been verified and signed properly. Plaint has been signed and verified by attorney of plaintiff viz. PW-1/1 on record. In view of that, this issue stands proved and decided in favour of plaintiff and against the defendant.

Finding on Issue No.3.

10. Onus of proving this issue was on the defendant whose case is that agreement to sell is unconscionable as at the time of entering into the agreement to sell between the parties, value of the land was more than Rs.11,01,000/- per acre. Defendant being a poor and illiterate person, has been cheated by plaintiff by executing this agreement to sell. On the one hand execution of agreement to sell is denied and on the other hand it is stated that the consideration is less. It is on the parties to arrive at any agreement regarding property in question. Even if it is admitted that the consideration is at a lower side, it could not be said that agreement is unconscionable agreement. Accordingly this issue is decided in favour of plaintiff and against the defendant.

11. Onus of proving these issues was on the defendants whose case is that the suit of the plaintiff is not properly valued for the purpose of court fees and jurisdiction and this court has no pecuniary jurisdiction to try the suit. In a suit for specific performance, valuation is required to be put at the value put in the agreement to sell and plaintiff has accordingly valued the suit properly for the purpose of court fees and jurisdiction at Rs.4,95,000/-. Accordingly suit is properly valued for the purposes of court fees and jurisdiction and valuation of the suit being Rs.4,95,000/- much below the pecuniary jurisdiction of this court which is Rs.20 lacs, this court has pecuniary jurisdiction to try the suit. Both these issues are decided in favour of plaintiff and against the defendants.

13. Onus of proving all these issues was on the plaintiff who has proved on record the agreement to sell executed between the parties Ex.PW-2/3 duly

corroborated by the statement of PW-2 and receipt Ex.PW-1/2 and PW-2/1, PW-2/2 and Ex.PW-1/5 by virtue of which payment of Rs.4 lac was made. Plaintiff served the notices upon the defendants. First notice was not replied. Second notice was replied in which a plea was taken that no agreement to sell was executed between the parties despite the extension of time. Several times letters written by plaintiff to the defendant. The Sale deed was not executed though, plaintiff was required to pay the amount at the time of execution of sale deed and had paid earnest money of Rs.1 lac. He has paid more than Rs.3 lac even after the execution of agreement to sell on the request of the defendant only. The payment of Rs.95,000/- is required to be made towards the remaining consideration of agreement to sell of which plaintiff is willing and ready to perform her part of contract. Hence it is held that defendant has entered into agreement to sell with the plaintiff Ex.PW-2/3 for a consideration of Rs.4,95,000/- and received 1 lac towards the earnest money. Plaintiff is ready and willing to perform her part of contract. Hence accordingly, suit of the plaintiff is decree. Defendants their agents, associates etc. are directed to execute the sale deed in favour of plaintiff in respect of the agricultural land measuring 18 bighas and 19 biswas bearing khasra no.373 (1-18), 374(2-11), 375(5-4), 381(2-18) and 282(6-

8) situated in the area of village-Mohammadpur Ramzanpur, Delhi less the land which is already acquired by the Government of NCT of Delhi on payment of consideration of remaining amount of Rs.95,000/- within the period of one month. In case of non-compliance of this order by any party the other party will be free to get it executed with the help of this Court. Ordered accordingly."

7. I am afraid that the Trial Court has arrived at findings which are

incorrect both in facts and law. Firstly, the agreement to sell in question is

undoubtedly a forged and fabricated document inasmuch as the agreement to

sell cannot talk of sale of 18 bighas and 19 biswas of land, inasmuch as,

appellants/defendants were only owners of 15 bighas and 11 biswas. This

aspect conclusively proves that the signatures of the appellants/defendants

were taken on a blank paper and subsequently which was made into an

agreement to sell. Obviously, at the time of making of the agreement to sell,

the respondent/plaintiff would have looked at the Revenue Record which

would have reflected the appellants/defendants as owners of the 18 bighas

and 19 biswas, although, part of this land was already acquired by the

Government way-back in the year 1983-84 leaving the appellants/defendants

only with an area of 15 bighas and 11 biswas. The fact that the agreement to

sell is a forged and fabricated document and the signatures of the

appellants/defendants were taken on a single blank piece of paper is also

established by the fact that in the agreement to sell, there are no signatures of

the appellants/defendants either on page 1 or page 2 of the agreement. Even

on the third and the last page of the agreement, the signatures of the

appellants/defendants appear above the expression "second party" whereas

the appellants/defendants were in fact the first party. Obviously, because of

the space constraint or typographical error, there was available no space to

adjust the signatures of the appellants/defendants. I therefore hold that the

agreement to sell in question is clearly a forged and fabricated document.

8. Another reason for holding that the agreement to sell is a forged

and fabricated document is because the appellants/defendants have filed and

proved on record a legal notice dated 16.2.1999, Ex.DW1/A, issued to them

on behalf of one Sh. Yash Bhatia through their Advocates, and in which

notice it was alleged that the appellants/defendants had agreed to sell their

land to Sh. Yash Bhatia vide agreement to sell dated 25.6.1997 at

Rs.11,01,000/- per acre. Obviously, therefore if in June, 1997, the price of

the subject land to be sold was Rs.11,01,000/- per acre, then, subsequently

under the agreement to sell dated 18.12.1997, it could not be that the land

was to be sold for a total amount of Rs.4,95,000/-.

9. Other important aspects which also can be noted are that in the

receipts which have been filed and exhibited by the respondent/plaintiff,

Ex.PW1/2 dated 18.12.1997 and Ex.PW2/2 dated 16.3.1998, the typing

showing the person from whom payment has been received is of a different

typewriter/printer than the original receipt typed, showing that the name of

Sh. Sudesh Gupta, the present plaintiff/respondent, which is typed

subsequently by a different typewriter, and obviously which name would

have been added in furtherance of the forged and fabricated agreement to

sell. I may note that the appellants/defendants are honestly stating that they

did, in fact, receive a sum of Rs.4,00,000/-, however, it is said that this

amount of Rs.4,00,000/- was received not from the respondent/plaintiff but

from Sh.Pawan Kumar Gupta under an agreement by which the land was

agreed to be sold at Rs.11,01,000/- per acre.

10. Finally, I may add that the respondent/plaintiff did not file

either the books of accounts or the income tax returns to show whether at all

any agreement to sell in question was reflected in the books of accounts or

that in the income tax returns the payment, which was alleged to be made by

the respondent/plaintiff, was reflected.

11. In view of the above, I hold that the agreement to sell dated

18.12.1997, Ex.PW2/3 is a forged and fabricated document inasmuch as

neither the appellants/defendants were owners of 18 bighas and 19 biswas of

land nor could the agreement has been for a sum of Rs.4,95,000/- for the

huge area of above nineteen thousand sq. yds. as per the case of the

respondent/plaintiff and fifteen and a half thousand sq. yds. as per the case

of the appellants/defendants. There is quite clearly a ring of truth in the

stand of the appellants/defendants and obvious dishonesty/falsehood in the

stand of the respondent/plaintiff. This is all the more clear because the

respondent/plaintiff has not appeared to contest the present appeal.

12. Finally I may note that the possession of the suit land, even if it

is assumed only to be of 15 bighas and 11 biswas and not 18 bighas and 19

biswas continues to remain with the appellants/defendants, and which could

not have been the position if there was a genuine agreement to sell which

was acted upon inasmuch as the respondent/plaintiff claims that about 60%

of the payment under the agreement to sell was already made to the

appellants/defendants, i.e. a sum of Rs.3,00,000/- was already paid out of the

total alleged consideration of Rs.4,95,000/-.

13. In view of the above, the impugned judgment and decree dated

24.10.2009 is set aside. The suit for specific performance filed by the

respondent/plaintiff shall stand dismissed. Decree sheet be prepared. Trial

Court record be sent back.

VALMIKI J. MEHTA,J DECEMBER 09, 2011 ak