Mst. Bachni vs Mangal Singh

J.V. Gupta, J.—This it Defendant''s appeal against whom the suit for the recovery of Rs, 23,000/- has been decreed by the trial Court.

Plaintiff Mangal Singh filed this suit for recovery of Rs. 30,000/- on the allegations that according to the agreement executed by the Defendant, Smt. Bachni, in his favour on 23rd July, 1971 (Ex. P1) by which the Defendant had agreed to sell her land, measuring 19 Kanali 17 Marias of land for Rs. 90,000/-. According to the Plaintiff, the Defendant received a sum of Rs. 23,000/- as earnest money. It was further pleaded that the Defendant had not executed the sale deed in accordance with the terms of this agreement upto 15th July, 1972, the date fixed for execution of sale deed in spite of the fact that the Plaintiff was always ready and willing to get the same executed. According to the terms of the agreement, if the Defendant did not execute the sale deed by 15th July 19''2, she was liable to return Rs. 23.000/- received by her, as earnest money and an equal amount as compensation, to the Plaintiff for damages However, the Plaintiff only claimed Rs. 7.000/- by way of damages together with a prayer fir the refund of earnest money of Rs. 23,000/-.

The Defendant contested the suit, She admitted that she had executed on 23rd July 1971, the agreement Ex. P1. She denied that any sum of Rs. 23,000/-. as alleged, was paid to her as earnest money. Her case was that the Plaintiff and his father Tara Singh executed an agreement deed with the Defendant on 27th November. 1973 (Ex. D1), according to which the Plaintiff received Rs 9,200/- from the Defendant and abandoned all his rights in the suits filed by the Plaintiff, or his father, including the present suit. Thus, according to the Defendant, in accordance with the agreement Ex. D1, the agreement to sell the land in dispute had become null and void, as having been cancel-led, with the result that the Plaintiff had no locus standi to file the present suit.

In the replication filed on behalf of the Plaintiff, the allegations in the plaint were reiterated. It was denied that he received any amount of Rs. 9,200/- or that he executed any agreement dated 27th November, 1973 (Ex. D1) or that he had abandoned his rights in the sale agreement Ex. P1. On the pleadings of the parties, the trial Court framed the following issues:

Whether the Plaintiff had paid the earnest money of Rs. 23,000/- to the Defendant on 23rd July, l971 ? OPP.

Whether the Plaintiff and his father Tara Singh executed an agreement deed with the husband of the Defendant on 27th November 1973, according to which, he received Rs 9,200/- and gave up ail the pending cases including the present suit? OPP.

Relief.

Under issue No. 1 it was found that Rs. 23,000/- were paid as earnest money by the Plaintiff to Smt. Bachni at the time of the execution of the sale agreement Ex. P.1. Under issue No. 2, the trial Court found that though it could be held that the Plaintiff and his father Ti a Singh executed agreement deed Ex. D1 with the husband of the Defendant on 27th November, 1973 and received Rs. 9,200/- from the husband of the Defendant, yet it could not be said with certainty that thereby the present suit between the parties bad been completely satisfied in accordance with the provisions of Order 23 Rule 3 of the Code of Civil Procedure, nor could it be said that it as the Plaintiff alone who had received Rs. 9,200/- Consequently, the issue was decided in favour of the Defendant, that agreement Ex. D1 was executed and Rs. 9,200/- were paid to the Plaintiff and his father, but at the same time it was decided against the Defendant on the point that this agreement did not effect the satisfaction of the present suit. In view of this finding, the Plaintiff''s suit for the recovery of Rs. 23,000/- was decreed. Dissatisfied with the same, the Defendant has filed this appeal in this Court.

The Learned Counsel for the Appellant vehemently contested the findings of the trial Court on both the issues. According to the Learned Counsel, it was only a sum of Rs. 5,000/- which was paid by the Plaintiff to the Defendant by way of earnest money and not Rs. 23,000/- as alleged by the Plaintiff The finding of the trial Court in this behalf, according to the Learned Counsel, was wrong. H was further contended that having found that agreement Ex. D1 was executed by the Plaintiff and his father Tara Singh, a sum of Rs. 9,200/- was paid to them, it has been wrongly decided that this agreement did not effect satisfaction of the present suit Thus, argued the Learned Counsel, Order 23 Rule 3 of the Code of Civil Procedure, was not applicable to the facts of the case as the said document was executed outside the Court, according to the terms of which, the Plaintiff was to withdraw the suit filed by him.

I have heard the Learned Counsel for the parties and have gone through the entire evidence on the record. From a perusal of the record and the conduct of the parties, it is quite evident that the Plaintiff has not come to the Court with clean hands. The Plaintiff has totally denied the execution of the agreement Ex. D1 and the receipt of Rs. 9200/- on 27th November, 1973; whereas it has been found as a fact even by the trial Court that such an agreement was executed and a sum of Rs 9,200/ was paid On the other hand, the Defendant admitted the execution of the agreement of sale Ex. PL In the written statement, she denied that a sum of Rs. 23,000/- was received by her, as alleged in the plaint. However, when she appeared as a witness in Court as DW4, she conceded at the very first instance that she got only Rs. 5,00/- at the time of the execution of the agreement to sell, as earnest money. The Plaintiff, in order to prove the payment of Rs. 23,000/- as earnest money, produced Tara Singh (P.W. 1), one of the attesting witnesses and Chuni Lal, scribe of the deed, (P.W. 2), besides himself entering the witness box as P.W. 3. After going through their testimony I am not satisfied that a sum of Rs. 23000/- was paid to the Defendant as earnest money There is no independent evidence to prove the source from where the Plaintiff had got this money. of course, Tara Singh (P.W. 1) attesting witness and Chuni Lal, scribe of the agreement to sell (P.W. 2) had to support the story of the Plaintiff as contained in the agreement, Since the execution of the agreement Ex. PI was admitted, it was for the Plaintiff to prove that he hid paid a sum of Rs. 23,000/- by way of earnest money. The testimony of the Plaintiff cannot be believed and he seems to be a liar when he totally denied the execution of the agreement Ex. D1 whereunder a sum of Rs. 9,200/- was received by him. The said agreement duty bears his signatures The very denial of execution of the said agreement shows that the Plaintiff was not telling the truth when he stated that B sum of Rs. 23.000/- was paid by way of earnest money. What appears to be is that only Rs. 5,000/- were paid by way of earnest money, as admitted by the Defendant in her statement, Apart from that there was another litigation with the father of the Plaintiff, Tara Singh, for which they got a total sum of Rs. 9,200/- with the understanding that both the suits would be withdrawn. It is pertinent to note that in the agreement Ex. D1, reference to the suit the date of which was fixed as 6th December 1973, was specifically mentioned. of course, the other particulars of the suit were not given, but at the time it is admitted that 6th December 1973, was the date fixed in the present suit v. hen agreement Ex. D1 was executed on 27th November, 1973. In case it referred to another suit, then it was for the Plaintiff to explain the same by leading any cogent evidence In the absence of such evidence, it could not be successfully argued on behalf of the Plaintiff-respondent that the agreement Ex. D1 did not relate to the present suit The Defendant has produced Suijan Singh (DW1) who is a Sarpanch of the village He was proved the agreement Ex. D1, being one of the attesting witnesses thereof. Anyhow, the execution of the agreement Ex. D1 could not be disputed and the finding of the trial Court in this behalf was not challenged in this appeal. The only argument raised was that this agreement did not relate to the present suit filed by Mangal Singh against Smt. Bachni. From the totality of the circumstances and the evidence on the record, it could not be said that this agreement did not relate to the present suit. Once the execution is proved, then the burden shifts to the Plaintiff to explain as to under what circumstances, the said agreement was executed which he has failed to discharge.

The contention railed on behalf of the Plaintiff-respondent, that the agreement did not comply with the provisions of Rule 3 of Order 23 of the Code of Civil Procedure, has no merit. As a matter of fact, the said provisions are not at all attracted to the present case. Ex. D1 was not a compromise filed in the suit on the basis of which, the suit was to be decided. As a matter of fact, the agreement Ex. D1 was executed outside the Court whereunder the parties agreed to withdraw the present suit. Therefore, the approach of the trial Court was wrong and illegal. In this view of the matter, the appeal succeeds and is allowed with costs. The decree of the trial Court Ls set aside and the Plaintiff''s suit is dismissed.

Appeal allowed.