Delhi High Court
Shri Brahm Singh S/O Late Shri ... vs Smt. Nisha Rani W/O Shri Sukh Lal ... on 1 February, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 47/2001
% 1st February, 2011
SHRI BRAHM SINGH S/O LATE SHRI GHASI RAM ...... Appellants
Through: None.
VERSUS
SMT. NISHA RANI W/O SHRI SUKH LAL GUPTA ...... Respondent
Through: Dr.S.L.Gupta, Attorney & Husband of
respondent, Dr.(Mrs.)Nisha Rani Gupta.
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?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. No one appeared on 19.11.2009 when the adverse orders were
deferred in the interest of justice. This case is on the Regular Board of this
Court since 3.1.2011 and today is effective item no.10 on the Regular Board.
No one appears for the parties. I have therefore gone through the record
and am proceeding to dispose of the matter.
2. The challenge by means of this Regular First Appeal is to the
impugned judgment and decree dated 15.12.2000 whereby the suit for
specific performance of the appellants/plaintiffs was dismissed.
RFA 47/2001 Page 1 of 5
3. The case of the appellants/plaintiffs was that the respondent
entered into an agreement to sell with the appellants/plaintiffs dated
25.3.1987 with respect to agricultural land measuring 9 bighas and 8 biswas
in village Karawal Nagar, Shahdara, Delhi for a consideration of Rs.1,00,000/-
, out of which the appellants/plaintiffs claimed to have paid Rs.60,000/- as
earnest money. The respondent/defendant contested the suit and
contended that the agreement dated 25.3.1987 is a forged and fabricated
document. It was stated that Mangal Sen, the brother of plaintiff no.1 was
the Chowkidar employed by the respondent/defendant to look after the
property, inasmuch as the respondent and her husband were working as
Lecturers in Delhi University. It was therefore prayed that the suit for
specific performance be dismissed.
4. After completion of pleadings, Trial Court framed the issues on
18.2.1991. The appellant no.1/plaintiff no.1 deposed as PW-1 and also got
examined another witness Sh. Gopal as PW-2 who was said to have
witnessed the agreement to sell. The appellants/plaintiffs also examined
hand writing expert as PW3. The respondent/defendant got 8 witnesses
examined in all, of which two were hand writing experts.
5. The following issues were framed by the Trial Court:-
"ISSUES
1. Whether the general power of attorney and an agreement to
sell dated 25.3.87, were executed by the defendant in
favour of the plaintiffs in respect of the suit land? OPP.
2. Whether a part payment of Rs.60,000/- was made by the
plaintiffs on 25.3.87 towards sale price of Rs.1,00,000/-?
OPP.
RFA 47/2001 Page 2 of 5
3. Whether the plaintiffs have entered into possession of the
suit land in compliance with the GPA and the agreement
dated 25.3.87? OPP.
4. Whether the plaintiffs have been ready and willing to
perform their part of the agreement? OPP.
5. Whether the plaintiffs are entitled to alternative decree for
Rs.1,00,000/- as damages against the defendant? OPP.
6. Who committed the breach of the agreement of sale? OPP.
7. Whether the land in suit does not exist and wrongly
claimed? OPD.
8. Whether the alleged agreement is false and fabricated
onerous and unreasonable? OPD.
9. Whether the suit has not been valued properly for the
purpose of Court fee and jurisdiction? OPD.
10. Whether the suit as framed is not maintainable? OPD.
11. Relief."
6. Though, the Trial Court has discussed the issue nos. 1, 2 3 and 8
separately, all of them could have been dealt with together inasmuch as the
same pertain to the factum as to whether there exists an agreement to sell,
inasmuch as the respondent/defendant claimed that the said agreement to
sell dated 25.3.1987 a forged and fabricated document. Though, the
reasoning given by the Trial Court while discussing these issues, may not be
correct on all the aspects, however, the conclusion of the trial court is correct
that the agreement to sell is a forged and fabricated document. I agree with
the aforesaid conclusions, inter alia, for the following reasons:-
i) The appellants/plaintiffs have failed to prove whether an amount
of Rs.60,000/- was paid under the agreement to sell. This has been
so held by the Trial court while dealing with issue nos. 2 and 3. The
Trial Court rightly mentioned that the appellants/plaintiffs failed to
prove the mode of payment. The Trial Court has also in this regard
RFA 47/2001 Page 3 of 5
noted that the appellants/plaintiffs have proved that the possession
was given to them by the defendant.
ii) The respondent/defendant has rightly proved through her hand
writing experts, who deposed as DW3 and DW5, that, the signatures
on the alleged agreement to sell are forged. I may note that the
contention of the respondent/defendant was that the
appellants/plaintiffs had traced out the signatures of the
respondent/defendant from a copy of the power of attorney given to
Sh. Mangal Sen. Of course there remains an ambiguity as to for what
purpose, the power of attorney was given to Mangal Sen, however,
the signatures quite clearly appear to be traced out from the said
power of attorney to the disputed agreement to sell.
iii) The respondent/defendant through the evidence of persons
working in the college showed quite categorically that she was in the
college working as Vice-Principal from 9:12 am to 2:30 pm and
therefore there was no question of the alleged agreement to sell
being signed at 9:00 am in the morning in the baithak/living room of
the appellant no. 1/plaintiff no.1.
7. A suit for specific performance is decreed when there is proof
beyond doubt of an agreement to sell, inasmuch as an agreement to sell
deprives a person of his ownership rights in the property. There also has
naturally to be definiteness about passing of the consideration, and which is
an aspect not proved by the appellants/plaintiffs as the mode of payment of
RFA 47/2001 Page 4 of 5
Rs.60,000/- has not been explained. I note that in the impugned judgment,
the financial capacity of the appellants/plaintiffs has also not been discussed
to show their readiness and willingness that if and how the
appellants/plaintiffs had with them the balance amount being Rs 1,00,000/-
for the payment to the respondent/defendant. Therefore, readiness and
willingness has not been adequately proved as required in law.
8. This Court is not entitled to interfere with the conclusions of the
Trial Court merely because two views are possible. This Court interferes with
the findings and conclusions of the Trial Court only if the view of the Trial
Court is perverse or causes grave injustice. I do not find that there is any
illegality/perversity in the impugned judgment nor is there caused any grave
injustice to the appellants/plaintiffs. The transaction appears to be an
unnatural one.
9. In view of the above I do not find any merit in the appeal which is
therefore dismissed, leaving the parties to bear their own costs. Interim
orders are vacated. The Trial Court Record be sent back.
CM No.419/2002 (Cross objections)
10 Since I have dismissed the appeal, no orders are required to be
passed in this application which is disposed of as such.
February 01, 2011 VALMIKI J. MEHTA, J.
ak
