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Judgment
This Civil First Appeal under sec.96 CPC has been filed
against judgment & decree dated 06.01.2006 passed by Additional
District Judge, Raisinghnagar, District Sri Ganganagar in Civil Suit
No.83/1996 ( Rameshwar & others v. Devi Lal & others ), by which
suit of the plaintiffs for specific performance of the agreements
was dismissed.
Briefly stated, plaintiff-appellants filed a suit for specific
performance of agreements to sale dated 01.06.1987 and
13.08.1987 on 06.04.1996 against defendant-respondents No.1 to
An agreement was entered into for sale of 24 bighas agriculture
land situated in chak 22-NP, which was agreed to be sold by the
respondents for total consideration of Rs.2,10,000/-. A sum of
Rs.1,25,000/- was paid to the aforementioned respondents on the
date of the agreement itself i.e. on 01.06.1987 and a further sum
of Rs.35,000/- was agreed to be paid in the month of December
1987 while the remaining amount of Rs.50,000/- was to be paid at
the time of registration of sale deed. The executants of the
agreement after execution of agreement for sale dated
01.06.1987 handed over possession of the land in question, along
with turn of water, to plaintiff-appellants in part performance of
the agreement, which has continued to remain with the appellants
till date. The respondents also agreed to take steps for obtaining
sanction for sale of the land as well as execution of sale deed in
favour of plaintiffs.
It was also contended that Rs.35,000/-, which was to be
paid in December 1987, was paid on 13.08.1987 and on that, a
further agreement dated 13.08.1987 was executed by the
aforementioned respondents, in which reference of earlier
agreement dated 01.06.1987 was also given.
The plaintiffs further averred that they are always ready and
willing to perform their part of the agreement but the respondents
went on postponing execution of sale deed, in spite of requirement
of obtaining sanction having been dispensed with by the State
Government and ultimately, on 10.03.1996 respondents refused to
execute sale deed in favour of appellants and then the appellants
filed aforesaid suit for specific performance of agreement to sale
dated 01.06.1987 and 13.08.1987. The respondents No.1 and 3
submitted their written statement on 22.10.1999 while respondent
No.2 submitted his separate written statement on the same day.
Respondents No.4 & 5 were impleaded subsequently on their
application and they also submitted their separate written
statement on 22.10.1999.
Respondent No.2 in his written statement denied averments
made by the plaintiffs regarding execution of agreements for sale
dated 01.06.1987 and 13.08.1987 and also raised plea that on the
date of alleged agreement, he was minor and as such, same were
void and hence, no right accrued to plaintiffs against him in
relation to said agreements regarding his share in the land.
Similarly, defendants No.4 & 5 denied their signatures on the
agreements. All the respondents also raised plea that the suit was
barred by limitation.
On the basis of pleadings of parties, the trial court framed 13
issues and after trial passed judgment & decree dated 06.01.2006
whereby the suit was dismissed.
Being aggrieved by the judgment & decree dated
06.01.2006, the appellants preferred this appeal with the
contentions that the trial court while deciding issues No.1 & 5
against the plaintiffs has erroneously held that the plaintiffs have
neither been able to prove execution of agreement for sale dated
01.06.1987 nor payment of consideration of Rs.1,25,000/- as
earnest money out of total consideration of Rs.2,10,000/-. The
trial court also erroneously held that sum of Rs.35,000/-, which
was to be paid by the plaintiffs in December 1987, was actually
not paid on 13.08.1987 as alleged by the plaintiffs nor any fresh
agreement was executed by defendants No.1 to 3 giving reference
to earlier agreement dated 01.06.1987 and the evidence of PW1
Rameshwar Lal has been misconstrued by the trial court. As a
matter of fact, the trial court failed to read statement of plaintiffs''
witness Rameshwar Lal along with his examination-in-chief, which
was made by way of submission of affidavit. In view of evidence of
plaintiff Rameshwar, witness Hanuman Ram and evidence of Dilip
Kaushik son of Chandra Prakash the scribe of the document,
issues No.1 & 5 should have been decided by the trial court in
favour of plaintiffs and against the respondents.
It was also contended that the trial court has again
committed illegality in deciding issues No.6, 11 & 12 against the
plaintiffs and in favour of respondent-defendants on the basis of
findings on issues No. 1 & 5 and the same deserve to be decided
against defendants. It was further contended that the trial court
committed grave illegality in deciding issue No.7 against the
plaintiffs and in favour of respondent-defendants. It was
contended that the trial court again committed illegality in
deciding issue No.10 by holding that the respondent No.2 was not
bound by the agreement even if he had put signature on the same
for the reason that he was minor at the time of execution of said
agreement for sale. It was further contended that the trial court
has committed illegality in deciding issue No.9, which related to point of limitation and no reasons have been given by the trial
court as to how the suit filed by plaintiffs was barred by limitation.
It has also been contended that the trial court has committed
illegality in deciding issue No.3 in coming to finding that the
plaintiffs have not been able to prove that they were always ready
& willing to perform their part of the agreement.
In the context of contentions raised by the appellants,
perused pleadings and evidence placed on record.
Learned trial court decided issues No.1 and 5 to 12 together
stating that all these issues are inter-related. The burden of
proving issues No.1 & 5 was on plaintiffs, burden of proving issue
No.6 was on defendants No.1 & 3, burden to prove issues No.7 &
11 was on defendants No.4 & 5, burden to prove issues No.10 &
12 was on defendant No.2 and burden of proving issues No.8 & 9
was on all the defendants.
So far as question of execution of agreement Ex.1 dated
01.06.1987 and Ex.2 dated 13.08.1987 is concerned, PW1
Rameshwar stated that an agreement for sale of 24 bighas land at
the rate of Rs.8750/- per bigha for total sum amounting to
Rs.2,10,000/- was executed on 01.06.1987. This witness further
stated that on 01.06.1987 defendants Devi Lal, Gulab Chand and
Dalip Kumar executed the agreement and received Rs.1,25,000/-.
This witness further stated that on 13.08.1987 Rs.35,000/- were
received in cash and agreement Ex.2 was executed. He has not
stated that on 13.08.1987, which defendants executed the
agreement. Defendants No.4 & 5 have not signed Exhibits 1 & 2.
So far as defendant No.2 is concerned, it has come in
evidence that date of birth of Gulab Chand was 30.06.1972 and on
the date of execution of Exs.1 & 2, he was minor and therefore,
agreement is not valid so far as defendant No.2 is concerned.
The witness PW1 Rameshwar has further stated that on
Exhibits 1 & 2 Devi Lal, Gulab Chand and Dalip Singh put thumb
impression. This witness has further in his cross-examination
stated that at the time of execution of agreement, he was not
present and writing of the agreement was done by his father and
his father paid advance money of Rs.1,25,000/-, which he brought
from ''vk 15. It is important to note that PW1 in his examination-in-chief
stated that he himself and plaintiff Om Prakash paid advance the
money and no reference of his father was made. There is material
contradiction in the statement of PW1 in the examination-in-chief and his cross-examination. According to his cross-examination, he
was not present at the time of execution of agreement nor money
was paid by him and plaintiff Om Prakash. Instead, he deposed
that advance money was paid by his father and his father did not
appear in witness.
PW1 in his examination-in-chief also stated that the
agreement was verified by Notary Public on the next day when it
was written but in his cross-examination, he stated that he does
not know who purchased stamps nor does he know when the
agreement was verified by Notary. Under these circumstances, the
trial court disbelieved the evidence of PW1.
PW2 Hanuman in his cross-examination stated that
Bagdawat Ram paid money to Devi Lal but in his examination-in-
chief he had stated that defendants received from plaintiff
Rs.1,25,000/- as advance. This witness has further stated that on
13.08.1987, defendant Seller has received from Purchaser
Rs.35,000/- before Banwari Lal in cash. However, in the cross-
examination, he stated that only Bagdawat Ram paid
Rs.1,25,000/- to Devi Lal. This witness in his cross-examination
has nowhere stated that other defendants No.2 & 3 also received
advance money whereas in his examination-in-chief, he had stated
that all defendants were paid advance money.
The trial court has minutely discussed the evidence led by
PW1 and PW2 and came to conclusion that from the evidence of
PW1 and PW2, it is not proved that defendants No.1, 2 & 3
executed Exhibits 1 & 2 in favour of plaintiffs and the plaintiffs
paid Rs.1,25,000/- and Rs.35,000/- as advance.
PW3 Dalip Kaushik is son of Deed-writer Chandra Prakash.
This witness stated in his evidence that Chandra Prakash is his
father, who is Deed-writer, now he is 85 years of age and his
vision & hearing is weak and that is why he has left the work of
Deed-writer. This witness stated that agreements Exhibits 1 & 2
bear his father''s signatures. ''Arji-nawis'' Chandra Prakash, who is
father of PW3, who prepared documents Exhibits 1 & 2, did not
appear in witness to prove the documents. PW3 has nowhere
stated that his father is not in a condition to given statement in
evidence before the court nor any medical certificate was
produced, from which it can be inferred that he is not in a position
to appear for evidence before the court.
DW1 Devi Lal in his statement denied execution of the
agreement and receiving of advance money of Rs.1,25,000/- and
Rs.35,000/- and stated that the land was handed over to
Bagdawat Ram on contract and during that period, he received
cash for which pro-note was written and that money was adjusted
from revenue due against land given on contract. PW1 in his
statement denied the fact of receiving land on contract but PW2 in
his cross-examination admitted that before execution of
agreement, land in dispute was handed over by Devi Lal to
Bagdawat Ram on contract and documents were placed on record
in this connection as Exhibits A1 to A9.
DW3 Tara Chand also stated in his statement that on
27.01.1987, 15 bighas land was given on contract for one year to
father of plaintiff Bagdawat Ram and Devi Lal received
Rs.10,000/- from Bagdawat Ram and executed pro-note receipt.
This witness has categorically stated that defendant Devi Lal
generally gives his land to Bagdawat Ram, father of plaintiff
Rameshwar, for cultivation. He has not heard that Devi Lal has
sold his agriculture land to plaintiff Rameshwar, Om Prakash,
Bagdawat Ram or any other person. DW2 Nirmala DEvi in her
statement has refused her signature and thumb impression of her
sister and stated that agreements Exhibits 1 & 2 were forged and
also stated that for taking possession, a suit was filed before
Deputy Collector, Raisinghnagar against plaintiffs. This witness has
categorically stated that she and her sister relinquished their
share in favour of their brothers and denied that there was any
consent for execution of agreements Exhibits 1 & 2.
There was admittedly no signatures of defendants No.4 and
DW4 Gulab Chand, who is defendant No.2, in his statement
stated that his land is 6.02 bighas and the plaintiffs had no right
to sale it. He has refused execution of agreement as well as
receipt of advance money and stated that those documents are
forged and also admitted that a suit was filed before Deputy
Collector, Raisinghnagar. Admittedly, defendant No.2 was minor
when agreements Exhibits 1 & 2 were said to be executed.
Thus, the trial court after elaborate discussion has rightly
came to conclusion that execution of agreements Exhibits 1 & 2
was not proved.
So far as limitation is concerned, as per agreement Ex.1
dated 01.06.1987 permission for registration of document was to
be obtained within one month. Admittedly, the condition of
permission from State Government was waived. After removal of
the condition, registration of sale deed was to be performed within
one month from May 1991. PW1 has nowhere stated that after
removal of the condition they gave notice to defendants for
registration of sale deed nor anything has been stated that after
removal of condition in the month of April 1991, all steps have
been taken by plaintiffs before filing of the suit. From the
averments made in Exhibits 1 & 2, it is evident that after removal
of the condition of obtaining permission in the month of April
1991,sale deed is to be executed within one month and time was
essence of the contract.
PW1 in his statement nowhere stated that after removal of
the condition any step has been taken for execution of sale deed.
PW1 in his statement further stated that it is true that for the
purpose of registry they have not given documents relating to
domicile, voter-list, ration card etc whereas liability to give such
documents was on plaintiffs. PW1 in his statement only stated that
on 10.03.1996, defendants refused to execute sale deed and on
that basis they alleged that the suit was within limitation.
In the present case, after removal of condition of permission
to sale from State Government, sale deed was to be executed and
registered within one month from April 1991 and according to
Article 154 of Limitation Act, limitation of 3 years starts from that
day whereas the present suit was filed on 16.08.1996. The trial
court has rightly observed that the suit was barred by limitation.
The trial court after discussing all evidence placed on record has
rightly decided this issue.
So far as contentions raised in respect of issue No.2 are
concerned, the trial court has rightly discussed evidence of PW1
and PW2 and came to conclusion that the plaintiffs failed to prove
that on disputed land their possession and turn of water continued
from date of execution of Exhibits 1 & 2.
So far as issue No.3 is concerned, this issue was related to
readiness & willingness. In this case, date of agreement of Ex.1
was 01.06.1987 and Ex.2 was 13.08.1987 and admittedly after
removal of the condition for obtaining permission from the
Government for sale, in the month of April 1991, nothing had
been done by plaintiffs before filing of the suit nor any notice was
served for execution of sale deed. PW1 in his cross-examination
admitted that for registration of sale deed, he has not given
domicile certificate, voter card, ration card to Devi Lal. In this way,
he has not fulfilled the condition required for execution of sale
deed. The trial court has rightly inferred that the plaintiffs were
not at all ready and willing to perform their part of the contract.
There is no ground of interference in the judgment & decree
passed by the trial court. The appeal is dismissed.