LRs Of Dwarka Prasad And Ors vs Hetram And Ors

Heard learned counsel for the parties and perused the material available on record.

The instant appeal has been preferred by the appellant Dwarka Prasad for assailing the judgment-cum-decree dated 20.09.1990 passed by the learned Additional District Judge, Nohar in Civil Original Suit No.36/1984 whereby, the suit filed by the plaintiff for seeking specific performance of an 'Agreement to sale' (hereinafter referred to as 'agreement') dated 11.06.1981 was dismissed.

The plaintiff filed the suit with the pertinent assertion that the agreement was entered into between him and the defendant for purchase of six bighas land (Khasra Nos. 2, 3, 4, 5, 8 & 9) from Murabba No.27 of Chak No.22 JSN, Village Jasana ki Rohi. The rate was settled @ Rs.6,000/- per bigha. He paid an advance amount of Rs.13,000/- to the defendant on the date of the execution of the agreement whereas, the balance consideration amount to the tune of Rs.23,000/- was settled to be paid at the time of registration which was to be carried out on Jeth Sudi 9 Samvat 2039. The plaintiff further claimed that he repeatedly approached the defendant to execute the registered sale deed but the defendant failed to carry out his promise whereupon, a notice was issued to the defendant on 19.03.1984. Despite receiving the notice, the defendant failed to appear at the office of the Sub-Registrar where, the plaintiff was present with the balance consideration. The agreement was not registered and the sale was not finalized thereupon the suit came to be filed.

The defendant appeared and contested the suit. He made a pertinent assertion in the written statement alleging that; he had never executed any such agreement; the land described in the agreement was not owned by him, he had an Aadhat account in the firm Harigovind & Rajkumar owned by the sons of Dwarka Prasad. He would sell his agricultural produce with the aid of the said firm and used to take loans from them from time to time. He was made to sign some documents as a security for the loans. These signed documents were misused to prepare the fraudulent agreement. The defendant further alleged that entire land owned by him (which was not covered under the agreement) was ancestral and his sons etc. had a share therein. It is noteworthy to mention here that inspite of the pertinent assertion made in the written statement that the land under the agreement was not owned by the defendant, the plaintiff made no attempt to file either rejoinder or seek amendment of the plaint or the agreement.

Be that as it may. The trial Court framed the following issues for consideration:-

"1. आया प्रतिवादी ने दिनांक 11.6.81 को 6000/- रू. प्रति बीघा के मूल्य पर मुरब्बा नं0 27 के किला नं0 2 ता 5, 8 व 9 कुल 6 बीघा वादग्रस्त कृषिभूमि का विक्रय करने का अनुबंध करके 13,000/- रू. उसी दिन साई पेटे प्राप्त करके शेष मूल्य 23,000/-रू. विक्रय पत्र के रजिस्ट्रेशन के समय प्राप्त करने का इकरार करके इस अमर का इकरार नामा दिनांक 11.6.81 को वादी के हक में निष्पादित किया - वादी

आया वादी शेष विक्रय मूल्य अदा करके वादग्रस्त भूमि का बैयनामा तस्दीक करवाने के लिए सदैव तत्पर रहा है वह अब भी है।

आया अनुबंध की विनिर्दिष्ट अनुपालना ना किये जाने पर वादी का अपूर्णीय क्षति होगी। -वादी

आया प्रतिवादी ने भूमि विक्रय का कोई अनुबंध नहीं किया और वादी ने जवाबदावा की धारा 1 में अभिकथित तथ्यों के मुताबिक धोखे व फरेब से इकरारनामा मनातदावा तहरीर करवाया - प्रतिवादी

आया इकरारनामा मनातदावा भूमि विक्रय का नहीं बल्कि फर्म हरगोविन्द राजकुमार की किसी अदायगी का जो उनको की जा चुकी है, सुनिश्चित करने के लिए धोखे से तहरीर करवाया गया

आया वादग्रस्त कृषि भूमि में दो हिस्सेदार श्रीमति रामेश्वरी व नत्थू है। यदि ऐसा है ते इसका वाद पर क्या असर है ?

आया वादग्रस्त भूमि का विक्रय प्रेगमेंट है और यदि ऐसा है तो इसका वाद पर क्या असर है ?

आया वादग्रस्त भूमि प्रतिवादीगण खातेदारी अथवा स्थायी आवंटन की भूमि नहीं है।

आया विनिर्दिष्ट अनुपालना की डिक्री न होने की स्थिति में वादी 13,000/-रू. साई के व 13,000/- हर्जाना पाने का अधिकारी है ?

सहायता।"

The plaintiff appeared in the witness box as PW-1 and adopted a stance that the land was erroneously described in the agreement as being a part of Murabba No.27 whereas, the land agreed to be sold under the agreement was actually a part of the defendant's land adjoining the land of Hamir Singh who had purchased 10 bighas land from the same chunk of land owned by the defendant. It is further relevant to mention here that while deposing on oath, the plaintiff simply exhibited the copy of the notice as Ex.A-2. He made no averment whatsoever that the notice had ever been sent to the defendant.

Be that as it may. The defendant, supported the averments made in the written statement to the hilt in his evidence. On going through his testimony, it is clear that no suggestion was given to the defendant that he got the agreement drafted. The plaintiff gave a suggestion to the defendant that as a matter of fact, he had agreed to sell the land adjoining that of Hamir Singh under the agreement. However, the description/surroundings of that chunk of land was not specifically elicited in the cross examination of the defendant. The defendant pertinently denied to have received any notice issued by Dwarka Prasad for execution of the registered sale deed.

After hearing and appreciating the arguments advanced by the parties, the learned trial Court proceeded to reject the plaint holding that the land described under the agreement was not owned by the defendant; that the plaintiff failed to prove that notice for execution of the registered sale deed was ever given to the defendant. Accordingly all the issues were decided against the plaintiff and in favour of the defendant and the suit was rejected by the judgment-cum-decree dated 20.09.1990.

After having appreciated the submissions advanced at Bar and upon a thorough evaluation of the evidence available on record, I am in agreement with the findings recorded by the trial Court. The plaintiff admitted in his evidence that the land described in the agreement (Ex.A-1) was not owned by the defendant. The plaintiff did not state in his evidence that the agreement was drafted at the instance of the defendant. Apparently, on perusal of the signatures of Hetram, he appears to be illiterate/semi illiterate person. The plaintiff Dwarka Prasad (PW-1) as well as the scribe Lichchhi Ram (PW-2) stated in their evidence that the agreement was read over to Het Ram. This situation could only have arisen if the agreement was drafted at the instance of the plaintiff.

Be that as it may. The plaintiff was apprised by the written statement that the land under the agreement was not owned by the defendant. No steps were taken either to file a written statement/amend the suit or to seek amendment in the agreement. The plaintiff only exhibited the notice as Ex.2 but he did not pertinent to state in his evidence that any notice for execution of the registered sale deed was ever issued to the defendant. The duty of verifying the description/title of the land set out in the agreement was on the plaintiff by applying the principle of 'bewar'.

In this background, I am of the firm opinion that the learned trial Court was perfectly justified in dismissing the suit filed by the plaintiff for specific performance of the contract as the plaintiff failed to make out any cause of action whatsoever. The impugned judgment does not suffer from any error legal or factual whatsoever warranting interference therein.

Thus, the appeal is dismissed as being devoid of merit. Decree be prepared accordingly. Record of the trial Court be returned forthwith.