Alizan vs Abdul Sattar
2022 Latest Caselaw 16725 P&H

RSA No.1493 of 2013 (O&M)                                               1

         IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                        CHANDIGARH


Sr. No.101                                          RSA No.1493 of 2013 (O&M)
                                                    Date of Decision: 14.12.2022

Alizan                                                              .... Appellant
                                           Versus

Abdul Sattar                                                       ... Respondent


CORAM: HON'BLE MR. JUSTICE TRIBHUVAN DAHIYA

Present:       Mr. Abhilaksh Grover, Advocate for the appellant.

               Mr. S.S.Dinarpur, Advocate for the respondent.
                     ***

TRIBHUVAN DAHIYA, J. (ORAL)

This is defendant's second appeal against the concurrent

findings of both the Courts below.

2. The facts of the case in brief are, the respondent/plaintiff

(hereinafter referred to as the 'plaintiff') filed a suit for possession by way of

specific performance of the agreement to sell dated 02.07.1999. The

appellant/defendant (hereinafter referred to as the 'defendant') being owner

in possession of the suit land measuring 16 kanal 14 marla entered into the

said agreement to sell with the plaintiff for a sum of Rs.5 lakh, and received

Rs.1,80,000/- as earnest money against receipt executed at the bottom of the

agreement. Inadvertently, the amount of earnest money was written as

Rs.3,20,000/- therein, and pursuant to demand made by the defendant, the

balance earnest money of Rs.1,40,000/- was also paid on 01.08.1999 against

receipt recorded at the back of the agreement to sell. The sale deed, in terms

of the agreement to sell, was to be executed on or before 31.03.2000, the

date was subsequently extended up to 26.09.2000 with mutual consent of the

parties on defendant's request.

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3. The suit was contested by the defendant inter alia by denying

that the said agreement to sell, dated 02.07.1999, was ever executed, or that

earnest money was ever received.

4. On the pleadings of the parties, the following issues were

settled by the trial Court:

1. Whether the defendant executed agreement to sell dated 02.07.1999, as alleged? OPP

2. Whether the defendant has received an earnest money of Rs.3,20,000/- from the plaintiff, as alleged? OPP

3. Whether the plaintiff is always willing and ready to perform his part of contract. If so, to what effect? OPP

4. Whether the agreement to sell dated 02.07.1999 is forged and fabricated by the plaintiff, as alleged? OPD

5. Whether the plaintiff has no locus standi to file the present suit? OPD

6. Relief.

5. Issues no. 1 to 4 were decided together by the trial Court in

favour of the plaintiff, and based on that Issue no.5 was also decided in his

favour. Accordingly, the suit was decreed. The findings were affirmed in

appeal by the lower appellate Court.

6. Both the Courts below have concurrently held that ownership

and possession of defendant over the suit land stood established by

jamabandi for the year 1992-93 (Ex.P27). Execution of the agreement was

also duly established on record by way of testimony of the plaintiff, PW1,

and one of the attesting witnesses PW2, Som Parkash, Namberdar, as also

payment of earnest money of Rs.1,80,000/- against receipt. The subsequent

payment of earnest money of Rs.1,40,000/- was also proved by examining 2 of 6

PW4, Aabu, and PW5, Mubarak Khan, who deposed about the payment to

the defendant on 01.08.1999 and proved its receipt (Ex.P1) also.

7. Regarding readiness and willingness of the plaintiff with regard

to execution of the sale deed, both the Courts below have held that initial

date of execution, i.e., 31.03.2000 was extended up to 26.09.2000 with

mutual consent, vide endorsement dated 27.03.2000 (Ex.P2), entered at the

back of the agreement to sell dated 02.07.1999 (Ex.P3), which stood duly

proved on record. Besides, a registered notice for execution of the sale deed

was sent to the defendant. Plaintiff's presence in the office of Sub Registrar

for the purpose with balance sale consideration stands established by the

affidavit dated 26.09.2000, Ex.P5.

8. Regarding forgery, the defendant relied upon the criminal case

registered on his complaint against the plaintiff and his associates for forgery

of the agreement to sell dated 02.07.1999 under Sections 471, 420, 467, 468,

323, 596 and 120-B IPC by FIR No.62 dated 09.12.2000 at Police Station

Jathlana. However, the accused in that criminal case were acquitted by the

Court of Judicial Magistrate I Class, Yamunanagar, vide judgment dated

20.04.2009 (Ex.P-28) by observing that the prosecution case was nothing

but a bundle of lies.

9. Learned counsel for the appellant/defendant has raised two-fold

arguments before this Court for setting aside the impugned judgments and

decree. Firstly, it was contended that readiness and willingness of the

plaintiff for execution of the sale deed has not been established on record.

The findings recorded by the Courts below are in the absence of any

evidence to that effect. Secondly, he has contended that execution of the

agreement to sell as well as extension of the date of execution of the sale

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deed have also not been established on record, as there is no cogent evidence

to that effect.

10. Per contra, learned counsel for the respondent/plaintiff

contends that the judgments of the Courts below are well reasoned and the

same do not suffer from any error of law.

11. Learned counsel for the parties have been heard and record

perused.

12. The arguments raised by the learned counsel for the appellant

are not sustainable in the light of the evidence on record. As

aforementioned, it has been concurrently held by both the Courts below that

execution of the agreement to sell, receipts of earnest money and extension

of date for execution of the sale deed, duly stand established on record by

way documentary evidence as well as testimonies of the plaintiff and

attesting witnesses. On the contrary, there is no evidence on record to

dispute the findings recorded. The oral testimony of the deceased defendant's

son Alizan, DW2, and that of his co-villager Jagmal Singh, DW1, are not

sufficient to disbelieve execution of the agreement in question, or that it is a

forged document, as pleaded by the defendant.

13. Despite denying execution of the agreement to sell and the

receipts in question, the defendant has failed to lead any evidence to

establish the fact. Even thumb marks of the defendant were not got

compared, though plaintiff examined a handwriting and finger print expert

as PW6. The expert, in his report, Ex.P11, concluded that defendant's thumb

impressions tally with five disputed thumb impressions on the agreement to

sell, though the other impression on the receipt dated 01.08.1999 could not

be compared as the same was mostly smudged. Learned counsel for the

defendant, has laid much stress on this to contend that the receipt, therefore,

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could not be said to have been executed. The sole thumb impression not

being tallied, that too only on account of it being smudged, would not

establish the defendant's case in the light of sufficient evidence on record

establishing its due execution, as discussed above. The thumb impression in

question could not be compared at all. It is not a case that the thumb

impression did not match with other impressions of the defendant; it is not

positive evidence to doubt the impression in question. Therefore, it cannot

be a basis to impute the evidence establishing due execution of the

agreement in question as well as the receipt.

14. The argument raised by learned counsel for the

appellant/defendant to dispute readiness and willingness of the plaintiff on

the ground that there was no evidence to establish he had the resources to

pay the balance sale consideration, is also pointless. The very fact that

substantial amount of sale consideration already stood paid by the plaintiff in

the form of earnest money, i.e., Rs.3.2 lakh out of Rs.5 lakh, and also that he

was present for execution of the sale deed in the office of the Sub-Registrar

on the date fixed, leaves no doubt about his readiness and willingness to pay

the sale consideration, even in the absence of any explicit material on record

pointing out the availability of balance sale consideration with him on that

date. Besides, the plaintiff specifically pleaded and proved before the Court

that he has always been ready and willing to perform his part to get the sale

deed registered. On 29.09.2000, he served a registered A.D. Notice (Ex.P10)

upon the defendant also, which stands established by the postal receipts,

(Ex.P6 and Ex.P7), which the defendant refused to receive. However, notice

sent through U.P.C. to the defendant was delivered. He also testified that he

remained present before the Sub Registrar on the date fixed along with

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balance sale consideration and other expenses for execution and registration

of the sale deed, but the defendant did not turn up for the purpose.

15. Still further, the defendant has denied execution of the

agreement to sell altogether, and termed it a fraudulent document. As per

settled proposition of law, once the defendant denies execution of the

agreement itself, he cannot dispute readiness and willingness on the part of

plaintiff to execute the sale deed. Reference in this regard can be made to

law laid down by this Court in Sant Singh v. Amarjit Singh 2015(2) PLR

497. The relevant paragraph of the judgment reads as under:

3. I am afraid, the aforementioned submission of learned counsel for the appellant-defendant sans merit, for the simple reason that appellant-defendant in the written statement denied the execution of the agreement to sell. It is cardinal/settled proposition of law that a person who denies the execution and registration of the sale deed, cannot be permitted to raise the plea of readiness and willingness. Reference invited to the judgment of Jora Singh v. Lakhwinder Kumar and others 2011(1) RCR (Civil) 130.

16. In view thereof, there is no error of law in the judgments of the

Courts below. No substantial question of law arises for consideration either.

17. Appeal stands dismissed.

18. Pending miscellaneous application(s), if any, stand disposed of

as having been rendered infructuous.

                                              (TRIBHUVAN DAHIYA)
                                                   JUDGE

14.12.2022
Maninder
             Whether speaking/reasoned          :      Yes/No
             Whether reportable                 :      Yes/No
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