Shaitan Singh vs Neetu Goyal

Rakesh Kumar Garg, J.—The plaintiff-respondent filed a suit for specific performance of the agreement dated 20.10.1995 in respect of the suit property alleging that the defendant-appellant had entered into an agreement to sell his land to the extent of 320/11791 share out of total land measuring 589 kanals 12 marlas comprised in Khewat No. 97 for Rs. 1,20,000/- and received a sum of Rs. 1,00,000/- as earnest money. He failed to execute the sale deed within the stipulated period of one year. Though the plaintiff-respondent was ready and is still ready and willing to perform his part of contract, the defendant-appellant did not turn up. Upon notice, the defendant-appellant contested the suit raising various preliminary objections. On merit, he denied the execution of agreement and receipt of the amount. It was further stated in the written statement that husband of the plaintiff-respondent-Om Parkash had a cloth shop in Hatta Bazar, Mohindergarh and he used to take clothes on credit. It has been further averred that if Om Parkash had obtained defendant''s signatures and prepared agreement to sell, the same is not binding upon him being based on fraud and misrepresentation.

After framing of the issues and considering the evidence on record, the trial Court dismissed the suit.

However, on an appeal filed by the plaintiff-respondent before the First Appellate Court, the judgment and decree of the trial Court was set aside and suit was decreed in favour of the plaintiff-respondent.

Para 10 of the aforesaid judgment reads thus:

There is another aspect of the matter. Written statement was filed in this case by the counsel on behalf of the defendant. That written statement does not contain the signatures of defendant rather contains signatures of his counsel. The learned trial Court arrived at a conclusion that since the written statement was not signed by the defendant and the defendant, as DW1, took a stand that he had not filed any written statement, so the written statement filed by the counsel for the defendant cannot be binding on the defendant. This observation carries no merit. During the trial of the case defendant never took a stand that the written statement filed by him could not bind him as the same was not signed by him. His counsel kept on representing him. The defendant could disown the written statement filed by his counsel and could seek permission of the court to file fresh written statement under his signatures. The defendant did not raise any objection and hence in such circumstances it cannot be said that the written statement filed by his counsel on his behalf was not binding on him. Otherwise also, if we take the written statement of the defendant out of the consideration then his stand becomes very weak. In that eventuality we will have no defence of the defendant on the record so as to counter the case of the plaintiff. Again, the evidence of the defendant, including his own statement, would not be taken into consideration, except a small portion, as the same would amount to leading evidence beyond pleadings. Hence, the defendant cannot adopt such a risky and dangerous course to destroy his own case.

Another ground taken by the learned trial Court to record finding against plaintiff on issue No. 1 is that once defendant took a stand during his examination as DW-1 that he was not aware whether he had any share in the total land measuring 589 kanals 12 marlas, it became the duty of the plaintiff to tender into evidence the relevant documents to prove that the defendant was owner of the land agreed to be sold by him. I do not find any force in this observation. In the written statement it was never the stand of the defendant that he was not owner of the suit land. He attacked agreement Ex. P-1 on the ground that the same was a fabricated document. A suggestion was given to PW-3 Om Parkash on behalf of defendant that he (PW-3) was in possession of the suit land. The statement of defendant (DW-1) on this point is beyond pleadings. If he was not owner of the suit land, he should have stated this fact in clear terms in the written statement and should have placed on record the relevant documents to prove his stand. Once he has not disputed this fact in the written statement it was not the duty of the plaintiff to lead documentary evidence to prove the ownership of the defendant over the suit land. It may not be out of context to mention here that at the time of filing of appeal the appellant annexed the relevant documents with the grounds of appeal in support of the fact that Shaitan Singh was owner of the suit land. Thus I hereby reverse the findings of the learned trial Court on issue No. 1 and hold that defendant Shaitan Singh had executed the agreement to sell (Ex. P1) of the suit land in favour of plaintiff.

Challenging the judgment and decree of the First Appellate Court, learned counsel for the appellant has vehemently argued that the First Appellate Court has misread and misinterpreted the documents on record.

Counsel for the appellant has made an effort to raise the issue that the plaintiff-respondent has failed to place on record any revenue record regarding the ownership and possession of the suit land. It is his further argument that husband of the plaintiff-respondent is a clever person and by cheating has obtained signatures of the appellant on the agreement to sell Ex. P1 and wants to grab the property and the said fact has been established on record and thus, the judgment and decree of the First Appellate Court being perverse is liable to be set aside.

On the basis of the aforesaid arguments, counsel for the appellant has submitted that the following substantial question of law arises in this appeal:

Whether there is a misreading of evidence by the Ld. First Appellate Court?

The argument raised is misconceived. A perusal of the written statement would show that the appellant has not specifically denied the execution of the agreement to sell in question and in fact has taken a defence that said agreement is a result of fraud committed by the husband of the plaintiff-respondent as he had obtained his signatures in a fiduciary capacity and has prepared the forged document. However, a perusal of the impugned judgment and decree would show that except taking the aforesaid defence, the defendant-appellant has failed to lead any evidence to prove his aforesaid assertion.

In view thereof, the argument raised on behalf of the appellant that even the plaintiff-respondent was not willing and ready to perform her part of the contract is of no significance as the defence of the appellant is of total denial of the execution of the document on the basis of fraud which he could not prove.

In fact by raising the argument, the appellant on reappraisal of evidence wants this Court to take a different view than the view taken by the First Appellate Court which is not permissible while exercising jurisdiction u/s 100 CPC.

No substantial question of law, as raised, arises for determination by this Court.

No other point has been argued. In view of the aforesaid, this appeal is dismissed.