Sher Mohammad vs Mohan Magotra
2013 Latest Caselaw 2895 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 10th July, 2013

+                            RFA 205/2004

       SHER MOHAMMAD                                      ..... Appellant
                  Through:              Mr. S.K. Taneja, Sr. Adv. with Mr.
                                        Arvind Sharma, Adv.

                                    Versus
    MOHAN MAGOTRA                              ..... Respondent

Through: Mr. J.K. Jain, Adv.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree dated 09.02.2004 of

the Additional District Judge, Delhi dismissing suit No.94 of 1997 filed

by the appellant for specific performance of an Agreement dated

13.03.1995 with the respondent for sale of agricultural land falling in

Khasra Nos.1273, 1286, 1287, 1288, 1289, 1320, 1321 and 1322, total

measuring 7.125 acres in village Punjab Khore, New Delhi.

2. Notice of the appeal was issued and appeal thereafter admitted for

hearing on 16.02.2005. Vide ad-interim order of the same date, the

parties were directed to maintain status quo with regard to the nature, title

and possession of the said land. The Trial Court record was

requisitioned. However the same on receipt was found to be incomplete

and the record shows that the missing parts of the Trial Court record were

reconstructed before the District Judge.

3. The counsels have been heard between yesterday and today.

4. The case of the appellant / plaintiff in the plaint was:

(i) that the respondent / defendant had represented himself to be

the owner of the aforesaid land by virtue of a Family

Settlement dated 28.05.1993 between the legal heirs of Late

Sh. Datar Singh, forming part of the consent Decree dated

25.08.1993 of this Court in CS(OS) No.1495 of 1989 and

CS(OS) No.63 of 1989;

(ii) that the respondent further represented that he was in need of

money and had agreed to sell his other lands also in the

vicinity;

(iii) that the respondent had agreed to sell his aforesaid land for a

total sale consideration of Rs.4,98,750/- at the rate of

Rs.70,000/- per acre;

(iv) that since the land continued to be recorded in the revenue

records in the name of Smt. Ranjit Kaur, though under the

Family Settlement aforesaid had fallen to the share of the

respondent, the respondent also agreed to first have the land

mutated in his name and thereafter obtain NOC from the

Patwari / Tehsildar;

(v) that the terms and conditions agreed between the parties

were reduced into a writing dated 13.03.1995 in which the

respondent admitted receipt of advance / part sale

consideration of Rs.4,25,000/- leaving a balance of

Rs.73,750/- payable at the time of registration of the Sale

Deed and further admitted having delivered vacant peaceful

physical possession of the said land to the appellant;

(vi) that the appellant after so coming into possession of the said

land started tilling the same and approached the respondent

repeatedly to enquire about the status of the permissions and

sanctions required for execution of the Sale Deed and was

always assured that the necessary steps were being taken;

(vii) that though the parties had agreed that the Sale Deed would

be signed and executed on or before 31.07.1995 but the

respondent towards the end of July, 1995 sought further 15

days time, again with the assurance to execute the Sale Deed

thereafter; and,

(viii) however the respondent on 12.08.1995 purported to take

over possession of the said land from the appellant; hence

the appellant filed the suit from which this appeal arises on

or about 16.08.1995 claiming besides the relief of specific

performance, the relief of permanent injunction restraining

the respondent from forcibly dispossessing the appellant

from the land.

5. The respondent contested the suit by filing a written statement

pleading:

(i) that the writing dated 13.03.1995 forming the basis of the

suit of the appellant was forged;

(ii) that the said land was in power and possession of the

respondent, though the appellant had after the institution of

the suit illegally trespassed on the said land;

(iii) that the land had been grossly under-valued and no specific

performance could thus be ordered;

(iv) that no amount, let alone the amount of Rs.4,25,000/-, was

ever paid by the appellant to the respondent;

(v) that Family Settlement in CS(OS) No.1495 of 1989 was

under challenge in CS(OS) No.1790 of 1994 and the

respondent for the said reason also as on 13.03.1995 had no

right to enter into an Agreement to Sell with respect thereto;

(vi) that the writing dated 13.03.1995 appeared to have been

prepared in collusion with other persons who were the

recorded owners of the land;

(vii) that the signatures of the respondent on the Family

Settlement in CS(OS) No.1495 of 1989 had been obtained

fraudulently;

It would thus be seen that the defence of the respondent / defendant

was of denial of the Agreement of which specific performance was

sought.

6. The appellant filed a replication to the written statement aforesaid

of the respondent but need to advert to the contents thereof is not felt.

7. On the pleadings of the parties, the following issues were framed in

the suit from which this appeal has arisen:

"1. Whether defendant represented himself as owner of the suit property? OPP.

2. Whether the defendant entered in agreement dated 13.3.95? OPP

3. Whether a sum of Rs.4,25,000/- was as advance / part sale consideration paid by plaintiff to the defendant and defendant executed valid receipt dated 13.3.95? OPP

4. Whether defendant has filed and neglected to carry out his part of the obligation? OPP

5. Whether the documents alleged have been forged?

OPD

6. Whether the alleged agreement is void for non compliance of provisions of Income Tax Act? OPD

7. Whether the plaintiff is not in lawful possession of suit property? OPD

8. Whether the suit property is the subject matter of suit No.1790/1994 pending in High Court? OPD

9. Whether the suit property is undervalued and proper court fee is not paid? OPD

10. Whether this Court has no pecuniary jurisdiction to entertain the suit? OPD

11. Relief."

8. The appellant examined himself as PW-1 and a witness to the

writing dated 13.03.1995 as PW2 and the Local Commissioner appointed

in the proceedings as PW3 and closed his evidence. The respondent

examined himself as DW1 another villager as DW-2 and the clerk from

this Court as DW3 and Patwari of village Punjab Khore as DW-4 and

closed his evidence. No evidence was led by the appellant / plaintiff in

rebuttal.

9. The learned Additional District Judge in the impugned judgment,

discussing Issues 1,2,3,5 and 7 together has held:

(i) that a perusal of the writing dated 13.03.1995 titled „Receipt‟

on which Ex.PW1/1 was put, showed that it was on a plain

paper with no margin left on the top;

(ii) that there was hardly a space of 2 mm on top end where the

word "Receipt" starts and there was no margin on the right

side;

(iii) that the words ended just 2 mm before the end of the paper

and there was very little margin (of less than an inch) on the

left hand side;

(iv) that the signatures of the respondent appeared on the right

side end of the paper;

(v) that though there was a revenue stamp affixed on the left

side of the signatures which was crossed in black ink, the

signatures of the respondent were in blue ink;

(vi) that under the word „Witnesses‟, there was hardly any space;

while one witness has signed under the word "Wtinesses",

the other witness has signed near the revenue stamp in the

middle of the paper;

(vii) the learned Additional District Judge thus concluded that the

contents of the receipt had been pre-prepared and squeezed

into the space available on the paper;

(viii) the learned Additional District Judge accepted the evidence

of the respondent that he was doing business in partnership

with Smt. Ranjit Kaur and in that regard had signed certain

blank papers and given to Smt. Ranjit Kaur since he used to

be out of Delhi for most the time and one of those papers

appeared to have been misused to forge the writing

Ex.PW1/1;

(ix) that the circumstances in which the appellant had deposed

the Agreement to Sell to have come about also seemed

highly unlikely;

(x) that the appellant had deposed that he had met the

respondent for the first time in 1991 in the office of Anant

Raj Builders where both appellant and the respondent were

suppliers of building material;

(xi) that after 1991, he met the respondent in the first week of

March, 1995 by chance in the parking of the Defence Colony

market and when the respondent had informed the appellant

that he wanted to sell his land and gave the appellant the

Settlement Deed forming part of the decree of this Court in

CS(OS)1495/1989;

(xii) that thereafter the respondent had come to the house of the

appellant where the appellant had called him and the next

meeting was on 13.03.1995 when the Receipt was signed

and payment of Rs.4,25,000/- made;

(xiii) that the appellant could not also explain the source of

Rs.4,25,000/- paid as part sale consideration to the

respondent;

(xiv) that the value of the land at the time of execution of writing

dated 13.03.1995 was Rs.6,50,000/- per acre and the

respondent could not be believed to have agreed to sell the

same at Rs.70,000/- per acre;

(xv) that if the revenue stamp had been affixed on the receipt

dated 13.03.1995 at the time of execution, there was no

reason why the signatures were not over the revenue stamp;

(xvi) that had the respondent been in need of money, he would

have contacted brokers for sale of the land and would not

have sold the same to the appellant on a chance meeting in a

parking of Defence Colony market;

(xvii) that the writing Ex.PW1/1 was forged and fabricated on a

plain paper which had come into possession of the appellant

through someone;

(xviii) that the appellant had been unable to prove the payment of

`4,25,000/- to the respondent;

(xix) that since the wife, daughters and other family members of

the respondent had in 1994 filed a suit against the respondent

and certain other persons including with respect to the land

aforesaid and claiming rights with respect thereto, the

respondent on 13.03.1995 could not have represented

himself to be the sole owner of the land; and,

(xx) that the report of the Local Commissioner appointed vide ex

parte order on the very first date when the suit was admitted

reporting the appellant to be in possession did not inspire

confidence.

The learned Additional District Judge thus held that the agreement

to Sell sought to be enforced being forged, there was no question of the

respondent fulfilling his obligations therein. Qua Issue no.6, it was held

that merely because the payment under the purported agreement to Sell

was made in cash did not make an Agreement void. The Issue no.8 was

also decided in favour of the respondent. However under Issue No.10,

the suit was held to be properly valued for the purpose of court fees and

jurisdiction. Resultantly, the suit was dismissed with exemplary costs of

`20,000/-.

10. The senior counsel for the appellant has argued; (i) that though the

plea of the respondent in the written statement was of the writing titled

„Receipt‟ dated 13.03.1995 containing the Agreement to Sell being

forged and fabricated but the respondent in his evidence deposed his

signatures having been obtained on a blank paper and the said Receipt

having been fabricated thereon; the said evidence is thus beyond

pleadings and the learned Additional District Judge could not have on the

basis thereof returned a finding of the Receipt dated 13.03.1995 being

forged and fabricated; (ii) that the learned Additional District Judge erred

in holding the appellant to have not explained the source of `4,25,000/-

paid to the respondent; the appellant in his testimony had deposed that the

said money was lying in his house and PW2 being a witness to the

Receipt dated 13.03.1995 examined by the appellant had also deposed of

payment in cash having been made to the respondent; it is argued that no

suggestion was given to PW2 that the said cash was not paid and thus the

payment stands proved and in any case the onus shifted to the respondent

and which the respondent has failed to discharge; (iii) that though the

respondent has denied handing over possession of the land to the

appellant on 13.03.1995 but DW2 examined by the respondent, in his

cross examination on 23.10.2003 admitted the appellant to have been

cultivating the land; (iv) that inadequacy of sale consideration is no

ground for not decreeing specific performance under Section 20 of the

Specific Relief Act, 1963; that the learned Additional District Judge thus

fell in error in disbelieving the Agreement for the reason of sale

consideration being `70,000/- per acre when the price approved was of

`4,65,000/- lacs per acre; and, (v) that there was no case of the appellant

having taken any unfair advantage of the respondent or the respondent

being under any hardship and the discretion in the matter of grant of relief

of specific performance thus ought to have been exercised in favour of

the appellant.

11. Per contra, the counsel for the respondent has invited attention to

the judgment dated 04.07.2008 of the Division Bench of this Court in LA.

APP. 741/2006 titled Ishwar Singh Vs. Union of India and other

connected matters and para 21 of which judgement sets out a Notification

dated 03.05.1990 of the Land and Building Department, Delhi

Administration fixing the minimum price of `4,65,000/- per acre for

agricultural lands in Delhi with effect from 27.04.1990. He has

contended that no prudent person would sell his land, accepted by the

government itself to be having value of Rs.4,65,000/- per acre (with the

actual value being much more) at the rate of `70,000/- per acre. It is

further argued that though there may be concealment of the actual

consideration in Sale Deeds but not in Agreements to Sell. It is argued

that no cross examination on the said aspect was done of the respondent

appearing as DW1. It is further contended that there is no explanation as

to why no proper Agreement to Sell was got executed especially when

90% of the purported sale consideration was being paid at the time of

Agreement to Sell itself. Reliance is placed on para 7 of Shining India

Developers Pvt. Ltd. Vs. Ltd. Col. P.S. Bhatnagar 188 (2012) DLT 726,

para 7 of Deewan Arora Vs. Tara Devi Sen 163 (2009) DLT 520 and

para 2 of Lourdu Mari David Vs. Louis Chinnaya Arogiaswamy AIR

1996 SC 2814 to contend that remedy of specific performance is an

equitable remedy in the discretion of the Court; that the Court is required

to examine whether the equities of the case demand a decree for specific

performance to be granted and specific performance is not to be granted

in favour of a person who does not approach the Court with clean hands.

12. I have considered the respective arguments.

13. It is the case of the appellant that he had agreed to purchase the

said land from the respondent on the representation of the respondent that

he is the owner thereof on the basis of a Family Settlement filed in

CS(OS) No.1495 of 1989 and 63 of 1989 of this Court. The said Family

Settlement, the senior counsel for the appellant has contended has been

proved as Ex.DW1/P1. The said document having not been found on the

Trial Court file, the senior counsel for the appellant has shown from his

own file. Reference to the land, subject matter of this suit, is found in

para 3 of the said Family Settlement dated 28.05.1993 and with respect

whereto, it is recorded that Smt. Ranjit Kaur, Kumari Dayaneeta Singh,

Smt. Komal Kochhar, Smt. Kavita Singh & Kumari Rishma Singh,

described as First Party in the said Family Settlement, had released and

relinquished their interest therein in favour of the „Confirming Party‟.

„Confirming Party‟ has been described in the said Family Settlement as

Mohan Magotra i.e. the respondent herein, Smt. Kunti Devi, Kumari

Shalu Magotra, Kumari Mitu Magotra , Sh. Mohan Magotra, Sh. Govind

Ram, M/s Govind & Co. and Smt. Madhu Magotra.

14. It being the case of the appellant / plaintiff that the copy of the said

Family Settlement on which his evidence Mark „A‟ was put, handed over

by the respondent to him in the very first meeting in the parking of

Defence Colony market and that the respondent had represented himself

to be the sole owner of the land on the basis thereof, it is enquired from

the senior counsel for the appellant as to how the appellant on the basis of

the said document could presume the respondent alone to be the owner of

the land when as per the said document itself, the land, besides the

respondent belongs to several other persons, some of whom are minor.

15. No plausible answer has been forthcoming.

16. It was next enquired from the senior counsel for the appellant as to

how, when as per the document relied upon by the appellant itself, the

respondent is only one of the several owners of the land, could the

appellant under Agreement with the respondent alone, acquire the entire

land.

17. The only answer which is forthcoming is that specific performance

can be ordered to the extent of the share of the respondent in the land.

18. Though the aforesaid course of action is permissible in law but the

facts in the present case do not justify the same, even if the appellants

were otherwise held to be entitled to the relief. The land agreed to be

sold is agricultural land and division whereof is subject to the laws

relating to minimum holdings of agricultural land. As per the document

produced by the appellant himself, besides the respondent, Smt. Kunti

Devi, Kumari Shalu Magotra, Kumari Mitu Magotra, Sh. Mohan

Magotra, Sh. Govind Ram, M/s Govind & Co. and Smt. Madhu Magotra

are the owners of the land. The total land is 7.125 acres. The shares of

each, even if equal, would thus be less than 0.9 acres and which may

result in an agricultural holding not permitted to be transferred /

conveyed. Though the learned Additional District Judge has not

considered the matter in the said light but therefrom it is apparent that

even if the findings with respect to the existence of the Agreement to Sell

were to be in favour of the appellant, it is not possible to decree the suit

and grant the relief of specific performance.

19. Though the senior counsel for the appellant faced therewith has

faintly suggested that a decree for refund of Rs.4,25,000/- be then passed

but upon attention of the senior counsel for the appellant being invited to

Section 21 of the Specific Relief Act and the fact that the said relief has

not been claimed in the plaint, no further argument in this respect has

been made.

20. As far as the finding of the learned Additional District Judge, of

there being no Agreement to Sell is concerned, I tend to agree therewith.

The appellant / plaintiff in the present case has utterly failed to prove the

availability with himself of the amount of Rs.4,25,000/- paid in cash.

Though in the evidence on record, there is a reference to a passbook of a

bank account of the appellant / plaintiff having been produced during the

course of the cross examination but the senior counsel for the appellant

fairly admits that the said passbook does not justify the availability of

Rs.4,25,000/- with the appellant. As far as the argument of suggestion

having not been given to PW2 is concerned, I may mention that the tenor

of the entire cross examination by the respondent of PW2 is to challenge

his statement; though of course no specific suggestion is given that he has

lied on the aspect of payment of Rs.4,25,000/- in cash in his presence.

However, I am of the opinion that in a civil trial which is based on

pleadings, there is no need for such suggestions to be given. The

respondent in his written statement had already denied the said payment

and it was for the appellant to prove the same. The practice of giving

suggestions in cross examination to witnesses is of criminal trials where

there are no pleadings and the defence is built up by giving such

suggestions. However unfortunately the said practice of criminal trials

has crept into the civil trials also to the extent that most of the cross

examinations being in the form of suggestions alone and which take

considerable time. The purport of cross examination is to challenge the

testimony and / or to falsify the witness or his credit worthiness and not to

give suggestions to the effect that each and every deposition in

examination-in-chief is false. Similarly, a party in a civil trial is not

required to in cross examination put its case to the witness as the same as

aforesaid already exists in the pleadings.

21. I am also unable to agree with the contention of the senior counsel

that upon the mere statement of the appellant and the appellant‟s

witnesses of having paid the sale consideration of Rs.4,25,000/- in cash,

the onus shifted on the respondent. The appellant in cross examination

sought to explain the availability of the said amount with him by

explaining his source of income but without any proof whatsoever.

Without the appellant proving any source of income from which he could

have in his household over the years collected Rs.4.25 lacs, the appellant

cannot be said to have discharged the said onus. Moreover, it was the

appellant alone who could have led affirmative evidence of payment of

such amount and the respondent, besides denial of receipt could not have

been expected to lead any evidence on the said aspect.

22. In the face of the appellant having failed to prove availability of

funds for which Receipt dated 13.03.1995 was issued, the said claim in

any case falls.

23. There is considerable merit in the reasoning given by the learned

Additional District Judge of the manner in which the said Receipt is

engrossed, also being indicative of the same having been manufactured

on a plain paper bearing the signatures of the respondent.

24. In the ordinary course of transactions of sale-purchase of

immovable property, documents of sale are not engrossed in such a

manner. It is not as if the parties had cursorily wanted to keep a bare

Receipt. The receipt is quite exhaustive and in legal language. If the

intent was to prepare such a document, there was no reason why no

proper Agreement to Sell could have been executed.

25. As far as the argument of the learned senior counsel for the

appellant of the change in stand by the respondent qua the said Receipt is

concerned, a perusal of the record finds a reason therefor also. The

record reveals that the said receipt was not filed by the appellant along

with the suit and was filed subsequently. The same was thus not

available to the respondent at the time of filing of the written statement.

In fact the receipt came to be produced at the time of recording of the

evidence of the appellant as PW1 pursuant to the direction on 25.01.1999.

The respondent was thus fully justified, on examination of the original

document, to explain the signatures thereon which on such examination

were found to be genuine. Rather the same shows the conduct of the

respondent to be bona fide.

26. No other argument has been urged.

27. The appeal resultantly fails and dismissed.

28. The Trial Court having already imposed exemplary costs on the

appellant, I refrain from imposing any further costs.

29. Though there is a controversy between the parties as to possession

also, with both, appellant as well as the respondent claiming to be in

possession of the land today also, but in view of the above need is not felt

to return any findings thereon.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J JULY 10, 2013 „gsr‟