- (1.) THIS is defendant's second appeal challenging the judgments and decrees of the Courts below whereby suit of the plaintiff -respondent for specific performance of agreement to sell in question was decreed against the appellant and appeal preferred by the defendant -appellant against the aforesaid judgment and decree before the first Appellate Court was dismissed. Plaintiff -respondent filed the instant suit for specific performance of agreement to sell dated 4.1.2008 alleged to be executed by the appellant -defendant for sale of land measuring 7 kanals 19 marlas, fully detailed in the head note of the plaint, at the rate of Rs.5,18,000/ - per acre and received a sum of Rs.1,25,000/ - as earnest money in the presence of witnesses. The remaining amount was to be paid before the Sub Registrar on 30.5.2008. The plaintiff -respondent was ready and willing to perform his part of the contract and he remained present in the office of Sub Registrar on the stipulated date with the balance sale consideration and expenses required for registration of the same. However, the appellant failed to turn up to perform his part of the contract. Hence, the suit.
(2.) UPON notice, the appellant appeared and filed his written statement, denying the averments made by the plaintiff and raised various legal objections. It was stated that agreement to sell dated 4.1.2008 was false, forged and fabricated and the same does not bear the signatures of the defendant. On merits, it was specifically denied that the defendant had entered into the agreement dated 4.1.2008 with the plaintiff to sell his land. It was further denied that the defendant received any earnest money. It was also averred that in absence of any agreement by the defendant, the question of its execution does not arise. Rest of the allegations were denied and dismissal of the suit was prayed for. Both the parties were given due opportunity to adduce evidence in support of their respective claims. On the basis of pleadings of the parties, following issues were framed: - 1. Whether defendant executed agreement to sell dated 4.1.2008 and received earnest money of Rs. 1,25,000/ -? OPP 2. Whether plaintiff is and has been ready and willing to perform his part of contract? OPP 3. Whether plaintiff is entitled to relief of specific performance? OPP 4. Whether plaintiff is entitled to alternative relief of recovery of Rs.2,50,000/ - with interest? OPP 5. Whether plaintiff is entitled to permanent injunction? OPP 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the plaintiff has no locus standi or cause of action to file the present suit? OPD 8. Whether agreement dated 04.01.2008 is false. Forged and fabricated? OPD 9. Whether agreement in question is vague, if s, its effect? OPD 10. Whether suit is not maintainable under Transfer of Property Act? OPD 11. Whether suit is bad for non joinder of necessary parties ? OPD 12. Whether defendant is entitled to special cost under section 35 -ACPC? OPD 13. Relief."
(3.) AFTER hearing both the parties and considering the evidence on record, the trial Court decided issues nos.1, 2, 3, 5, 8 and 9 in favour of the plaintiff and against the defendant. Issue no.4 was held redundant and issues No.6, 10, 11 and 12 were decided against the defendant, being not pressed and thus, the suit of the plaintiff -respondent for specific performance of agreement, was decreed vide impugned judgment and decree of the trial Court dated 5.8.2010. Feeling aggrieved by the aforesaid judgment and decree of the trail Court, the defendant preferred an appeal before the first Appellate Court, which was dismissed vide impugned judgment and decree date 28.5.2012. While dismissing the appeal, the lower Appellate Court observed as under: - "16. A perusal of the original agreement dated 4.1.2008 Ex.PW1/B reveals that Bhola Singh, defendant agreed to sell the land measuring 7 Kanal 19 Marlas that is 159/7664 share in land measuring 383 Kanals 4 Merles, situated in revenue limits of village Jiwan Singh Wala, at the rate of Rs.5,18,000/ -per acre and received Rs.1,25,000/ - as earnest money and agreed to execute and register sale deed upto 30.5.2008. The stamp paper of the said agreement has been purchased from Som Nath, stamp vendor and the agreement bears the signatures of Bhola Singh, defendant and witnessed by Baldev, Singh son of Sardool Singh, resident of village Kot Shamir and Gogi Ram son of Ved Parkash, resident of Bathinda. 17. The plaintiff while stepping into witness box as PW -1 tendered his affidavit Ex.PW1/A, wherein he reiterated his version as set out in the plaint itself. During cross -examination, he admitted that the stamp paper of Rs.300/ - was purchased by Bhola Singh. He admitted that Ex.PW1/B was scribed in his presence and in the presence of Bhola Singh. He also admitted that agreement was executed with regard to share and not of specific khasra number and the agreement was executed by Bhola Singh and scribed at tehsil complex, Talwandi Sabo. He testified that he brought the amount from his house. 18. PW -2 Gogi Ram, tendered his affidavit Ex.PW2/A, wherein he mentioned regarding execution of agreement dated 4.1.2008 by the defendant in favour of the plaintiff in his presence and in the presence of Baldev Singh and receipt of Rs.1,25,000/ -as earnest money by the defendant in their presence. During cross -examination, he admitted that he is working as Munshi at the brick kiln of plaintiff and get Rs.5000/ -per month as salary. The plaintiff is his real maternal uncle. He admitted that on the day of execution of writing, he and plaintiff came back at brick kiln and brought the amount from the house and he had denied the suggestion that no consideration was passed in his presence and that the agreement was forged and fabricated. 19. PW -3 Som Nath, stamp vendor testified that on 4.1.2008, Bhola Singh son of Khilla Singh, resident of Jeon Singh Wala had purchased the stamp paper of Rs.300/ -from him, for execution of agreement and same was entered by him in register at Sr.No.8128 and produced the photocopy of the register Ex.PW3/A. He testified that Bhola Singh put his signatures on Punjabi in his register in his presence. He was cross -examined by the learned counsel for the defendant, but his testimony could not be shattered and no suggestion was put to him that Bhola Singh had not purchased the stamp paper on 4.1.2008 from him, or that the register did not bear his signatures. 20. PW -4 -Anil Kumar Gupta, handwriting and finger print expert, tendered his affidavit Ex.PW4/A, wherein he mentioned that he examined and compared the disputed signatures Mark Q1 to Q3 on the agreement dated 4.1.2008 Ex.PWl/D with the standard signatures of Bhola Singh appearing at Mark S1 and S2 on the written statement and at Mark S3 on reply dated 21.7.2008, at Mark S4 on another reply dated 9.1.2009, at Mark S5 on the vakalatnama dated 17.7.2008 and had given his report that disputed signatures Mark Q1 to Q3 and standard signatures of Bhola Singh Mark S1 to S5 are similar in their writing, characteristics and have been written by one and the same person. Though during cross -examination, he admitted that handwriting science is not a perfect science, but, he has denied the suggestion that the signatures in dispute are forged one. He has also denied the suggestion that he prepared a wrong report in connivance with the plaintiff. 21. The defendant while appearing as DW -1 tendered his affidavit Ex.DW1/A, wherein he reiterated his version taken in the written statement and he has also taken the plea that he had purchased bricks from the plaintiff on credit basis and plaintiff had obtained his thumb impression on stamp paper, for undertaking of payment of price of bricks to the plaintiff. At the time of affixing his thumb impression, he was in the impression that he is affixing the thumb impression of the document of undertaking for making payment of the price of bricks and the plaintiff taking the benefit of illiteracy of the defendant might had got the thumb impression on the alleged agreement to sell by playing fraud and mis -representation. The above plea taken by the respondent -defendant in his affidavit cannot be looked into as the same is beyond pleading. Even otherwise, the said plea taken by the defendant does not prove his version as the agreement dated 4.1.2008 bears the signatures of defendant whereas, he has taken the above plea with regarding to taking of his thumb impression by the plaintiff. He testified that Ex.PW1/D does not bear his signatures, but he has also denied his signatures on vakalatnama dated 17.7,2008, written statement dated 1.8.2008. Thus, the conduct of defendant shows that he has intentionally denied the execution of agreement to sell dated 4.1.2008 in favour of plaintiff and receipt of earnest money and his signatures on the said agreement. The testimony of DW -1 could inspire confidence, if the same would have been corroborated by other evidence. At least, he should have examined some finger print expert to rebut the testimony of PW -4 Anil Kumar Gupta, handwriting and Finger Print Expert. If the plaintiff had obtained his signatures fraudulently on the agreement Ex.P1, in that event, it was required for the defendant to report the matter to the police, but he had not done so. His complacence and tacitness in this regard would candidly prove the execution of agreement Ex.P1 and receipt of imprest of Rs.1,25,000/ - by the appellant from the respondent. So, the learned trial Court has rightly held that agreement to sell dated 4.1.2008 has been proved on record. 22. A perusal of affidavit dated 30.5.2008 Ex.PW1/C reveals that plaintiff remained present in the office of Sub -Registrar, Talwandi Sabo with balance sale consideration to perform his part of contract of agreement to sell, but the defendant did not turn up. No contrary evidence has been led by the defendantappellant. So, the learned trial Court has rightly held that plaintiff was ready and willing and is still ready and willing to perform his part of contract and has rightly granted the relief of specific performance of agreement to sell. As the defendant has failed to perform his part of contract of agreement to sell, so, the plaintiff got the locus standi and cause of action to file the suit which is well maintainable. The findings of the learned trail Court on all the issues are based on correct appreciation of evidence on record and are, thus, affirmed.";