BALBIR SINGH Vs. RADHEY SHYAM

JUDGEMENT

(1.) This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of facts recorded by both the Courts below holding that plaintiff-respondent No. 1 is entitled to possession of the suit land by way of specific performance of the agreement to sell dated 28.1.1990. Both the Courts below have concurrently found that despite the fact that original agreement to sell dated 28.1.1990 has not been produced but by way of secondary evidence (permitted vide order dated 28.3.1998) it has been proved. In support of the fact that agreement dated 28.1.1990 was executed the relevant entry in the register of the scribe was got proved by the plaintiff-respondent as Ex.PW2/A by producing Megh Raj Scribe/Draftsman PWZ. Megh Raj had slated that the suit land was agreed to be sold for a sum of Rs. 2,40,000/- and Rs. 2,00,000/- was paid by the plaintiff-respondents to the defendant-appellants was earnest money. He further deposed that defendant-appellants had appended their signatures on his register. A certified copy of the register has been produced on record as Ex.PW2/A. Vijay Singh, Patwari, PW3 has also testified about the execution of the agreement between the parties. The theory of fraud propounded by the defendant-appellants has been summarily rejected because no evidence has been produced to prove and substantiate the fraud. Reliance has also been placed on compromise Ex.D1 which is an admitted document between the parties as per the joint statement dated 3.8.1993. Compromise Ex.D1 shows that defendant-appellant Chandro has categorically admitted the execution of the agreement and receipt of a sum of Rs. 2,00,000/- as earnest money. She further staled that they were all ready to get the sale deed executed. The afore-mentioned statement tacitly proves the execution of the agreement to sell dated 28.1.1990.

(2.) It is further appropriate to mention that both the Courts below have found that the plaintiff-respondent has always been ready and willing to perform has part of the contract. On 27.2.1991 he was present in the office of the Sub-Registrar but defendant-appellant failed to turn up. The affidavit Ex.P14 was prepared and application Ex.P15 was submitted to the Sub Registrar. The afore mentioned documents have been duly proved by the plaintiff-respondent who appeared as PW1 and both the Courts below have held that those two documents show that for administrative exigency 27.2.1991 was not the day kept for registration of the transfer deeds by district revenue authorities. But the plaintiff-respondent had appeared and was carrying the balance sale consideration. On 28.2.1991 an application Ex.P16 was submitted to the Sub Registrar on which endorsement was made and the same was returned to the plaintiff-respondent.

(3.) Shri Narinder Hooda, learned counsel for the defendant-appellant has vehemently argued that certified copy Ex.PW2A from the Deed Writer's register is not admissible in evidence as it cannot constitute secondary piece of evidence. According to the learned counsel, copy from the original alone could constitute secondary evidence. Learned counsel has referred to Section 63(3) of the Indian Evidence Act, 1882 (for brevity the 1872 Act) to argue that if such certified copies as Ex. PW2A are allowed to be treated as secondary evidence then the possibility of forged document passing of as genuine documents could not be ruled out. According to the learned counsel it cannot be accepted as secondary evidence of the original merely because an entry has been made in the register of the scribe with regard to the agreement to sell dated 28.1.1990. Learned counsel has further argued that it is unbelievable that a sum of Rs. 2,00,000/- would be paid as earnest money out of the total amount of Rs. 2,40,000/- and in fact it is a case of fraud and mis-representation practised on the defendant-appellant. Another contention raised by the learned counsel is that execution of the agreement or passing of consideration to the defendant-appellant has not been proved.