Balwinder Singh and Another vs Satnam Singh and Others

A.N. Jindal, J.—This petition assails the order dated 27.09.2011 passed by the Additional Civil Judge (Senior Division), Malerkotla, dismissing the application filed by the plaintiffs-petitioners (hereinafter referred as ''the petitioners'') for leading secondary evidence. When the case was fixed for evidence of the petitioners, they filed an application for leading secondary evidence in order to prove an agreement to sell dated 13.11.2002, executed by Kaka Singh-respondent No.5 along with Sarabjit Singh, Karamjit Singh, Kuldeep Singh and Charanjit Singh in favour of respondent No.1 for sale of land measuring 22 Bighas 8 Biswas at the rate of Rs.58,000/- per Bigha.

Learned counsel for the petitioners has submitted that the sale deed was executed for a sum of Rs.2,62,000/- (i.e. at lesser rate), therefore, it is necessary to lead this piece of evidence in order to prove that the sale was not for legal necessity. He has also referred to para No.8 of the plaint in order to contend that the petitioners have already pleaded in the plaint that the sale consideration was shown to be Rs.2,62,000/- against the prevalent price at that time, which was at the rate of Rs.4,12,000/-.

To the contrary, learned counsel for the respondents has submitted that the factum with regard to agreement to sell was not pleaded in the plaint and the sale deed is silent about the said agreement to sell. He has further submitted that it is well settled that the evidence beyond pleadings cannot be considered.

Arguments heard.

No doubt, Kaka Singh had 1/3 share in the total land measuring 22 Bighas 8 Biswas and his share comes to 7 Bighas 9 Biswas. The sale deed executed by Kaka Singh and other co-sharers sought to be challenged, is qua total land i.e. 22 Bighas 8 Biswas. The agreement sought to be produced, which pertains to same land, is for a higher price. Thus, in order to prove that the sale deed was not executed for the price as recorded in the agreement, it has become essential to prove the same.

As regards the factum that the agreement to sell was not pleaded in the plaint, it may be mentioned here that para No.8 of the plaint speaks for itself that the sale was effected at the lesser price, which fact could be proved by way of leading evidence. Resultantly, this petition is accepted; the impugned order is set aside and the petitioners are allowed to lead secondary evidence with regard to the agreement to sell dated 13.11.2002, subject to proof of its existence.