MALKIAT KAUR Vs. HARDEEP KAUR

JUDGEMENT

(1.) THE defendant -respondent, being co -sharer to the extent of 1/12 share in land measuring 183 Bighas 19 Biswas, entered into an agreement to sell dated 22.5.1993 with the plaintiff -appellant whereby she (defendant -respondent) agreed to sell land measuring 15 Bighas and 4 Biswas to the plaintiff -appellant at the rate of Rs. 15,000/ - per Bigha and received Rs. 1,48,000/ - as earnest money from the plaintiff at the time of execution of the agreement in the presence of the witnesses. The balance sale consideration of Rs. 80,000/ - was to be paid at the time of execution of the sale deed. The sale deed was to be executed on or before 10.3.1994 and possession was to be delivered to the plaintiff by the defendant at the time of execution of the sale deed. Thereafter, with the consent of the parties, the date for execution of the sale deed was extended from 10.3.1994 to 10.5.1995. An endorsement to this effect was made on the back of the above said agreement to sell. The plaintiff -appellant remained present before the Sub Registrar concerned on 10.5.1995 along with the remaining sale consideration payable to the defendant -respondent. However, the defendant did not turn up before the Sub Registrar. The plaintiff submitted an affidavit before the Sub Registrar and got her presence marked. Since the plaintiff was always ready and willing to perform her part of the agreement, she approached the defendant a number of times for getting the sale deed registered, but to no effect. The plaintiff per force then filed the instant suit for specific performance of the said agreement to sell, which was decreed by the trial Court with costs vide judgment and decree dated 21.4.1997 and the defendant was directed to execute the sale deed till 31.5.1997 failing which the plaintiff was held entitled to get the same executed through Court on payment of remaining sale consideration. However, on appeal by the defendant -respondent, the lower appellate Court, vide judgment and decree dated 5.1.2001, modified the judgment and decree passed by the trial Court and the plaintiff -appellant was held entitled to the refund of Rs. 1,48,000/ - paid by her to the defendant as earnest money along with interest at the bank rate from the date of payment till its realization. Hence this Regular Second Appeal by the plaintiff -appellant. After hearing learned counsel for the parties and going through the records of the case, this appeal deserves acceptance and the judgment and decree passed by the trial Court deserve to be restored for the reasons to be given hereinafter.

(2.) IN this case, the defendant -respondent could not produce any evidence on record to show that the said agreement to sell was forged or a fabricated document or it was the result of fraud or misrepresentation. The plaintiff -appellant proved on record that she had always been ready and willing to perform her part of the agreement. In fact, filing of the suit by the plaintiff -appellant itself showed that she was ready and willing to perform her part of the agreement. The defendant -respondent had denied her signatures on the agreement to sell (Exhibit P.1) and the endorsement (Exhibit P.3) made on the back of the agreement, vide which the date of execution of the sale deed was extended from 10.3.1994 to 10.5.1995 by claiming that she did not know how to write and sign. However, there is evidence of Telu Ram (P.W. 4), produced by the plaintiff. Telu Ram (P.W. 4) had brought the original file No. 2110 concerning the defendant -respondent Hardeep Kaur whereby she had taken loan. On the application (Exhibit P.5) for taking loan, on the receipt of payment of loan amount (Exhibit P.6) and on the other documents pertaining to the sanction of loan (Exhibits P.7 to P.12), the defendant had put her signatures. It, thus, belied the stand of the defendant that she usually thumb marked the documents and had not signed the agreement to sell (Exhibit P.1) and the endorsement (Exhibit P.3). Both these documents i.e. Exhibit P.1 and P.3 prove in certain terms that the defendant had agreed to sell the land measuring 15 Bighas 4 Biswas to the plaintiff for Rs. 2,38,000/ -. Major part of the sale consideration i.e. Rs. 1,48,000/ - had already been paid at the time of execution of the agreement to sell (Exhibit P.1). The remaining amount of sale consideration of Rs. 80,000/ - was deposited by the plaintiff in the trial Court after the passing of the judgment and decree passed by the trial Court. It shows that the plaintiff has always been ready and willing to perform her part of the agreement. Under the circumstances, the lower appellate Court was not justified in confining the relief of the plaintiff to the return of earnest money only. Under the circumstances, this appeal succeeds. The same is, accordingly, allowed. The judgment and decree passed by the lower appellate Court are set aside and those of the trial Court are restored. However, there shall be no order as to costs.