RAKESH KUMAR GARG, J. - (1.) THIS is defendants' second appeal challenging the judgment and decree of the lower appellate Court dated 19.01.2011 whereby appeal filed on behalf of the plaintiff -respondent against the dismissal of his suit for possession by way of specific performance of the agreement to sell dated 29.08.2002 was accepted and his suit was decreed.
(2.) SUFFICE it to say that in the written statement, the defendant -appellants had submitted that their father never executed the agreement to sell in question and the plaintiff -respondent had obtained his thumb impressions on blank papers. It is further case of the appellants that the plaintiff -respondent and his son Hukam Chand are money lenders and the land was already mortgaged with the son of the plaintiff and the instant agreement was executed as a security to the said mortgage and when the appellants approached the son of the plaintiff to pay back the mortgage amount, he refused to accept the same and when the appellants filed a suit for redemption before the revenue Court, the plaintiff -respondent has filed the instant suit in order to nullify the aforesaid redemption suit. After framing of the issues, plaintiff -respondent led evidence in support of his case; however, defendant -appellants failed to lead any evidence to support their pleaded case and ultimately their evidence was closed by an order of the Court dated 30.09.2009. There is nothing on record to show that the aforesaid order was ever set aside. However, the trial Court vide its judgment and decree dated 03.10.2009 dismissed the suit holding that the suit of the plaintiff -respondent was based on concealment of fact that the plaintiff -respondent has failed to disclose that mortgagee of the land in question was none else but his son Hukam Chand. However, plaintiff -respondent filed an appeal against the aforesaid judgment and decree of the trial Court, which was accepted by the first appellate Court vide impugned judgment and decree dated 19.01.2011. While accepting the appeal and decreeing the suit, the lower appellate Court observed as under: "Case of the plaintiff is that father of defendants No.1 to 5 namely Abdul Majid and his brother Abdul Gafoor entered into an agreement to sell their land measuring 13 Kanals 8 Marlas for the sale consideration of Rs.2,50,000/ - Abdul Gafoor and Abdul Majid received Rs.25,000/ - as earnest money and remaining amount of Rs.2,00,000/ - was adjusted/left with the plaintiff for payment to mortgagee Hukam Chand. Remaining amount of Rs.2,00,000/ - was adjusted/left with the plaintiff for payment to mortgagee Hukam Chand. Remaining amount of Rs.25,000/ - was to be paid at the time of registration of the sale deed. Plaintiff Amar Chand appeared into witness box as PW -5 and tendered his affidavit Ex.PW5/A, in which it is mentioned that Abdul Majid and Abdul Gafoor entered into an agreement to sell land measuring 13 Kanals 8 Marlas for consideration of Rs.2,50,000/ - on 29.05.2002. Agreement was typed by Jagdish Parshad Gupta, Deed Writer at the instructions of the parties and after that parties put their thumb impression on the same and witnesses signed the same. Agreement is Ex.P -1. At the time of agreement, suit land was mortgaged with Hukam Chand, Rs.2,00,000/ - was left with the plaintiff for payment to mortgagee, Rs.25,000/ - was paid to vendor as earnest money and remaining amount of Rs.25,000/ - was to be paid at the time of registration of the sale deed. Sale deed was to be registered on 15.06.2003. As on 15.6.2003 there was holiday, so plaintiff went to the office of Sub -Registrar on 16.06.2003 with all the expenses but defendants did not turn up. This witness proved agreement Ex.P -1, attendance before Sub -Registrar Ex.P -2. PW -1 Jagdish Parshad Gupta has appeared into witness box and stated that he has written agreement to sell Ex.P -1 at the instructions of the parties. Parties put their thumb impressions on the same. PW -2 Puran Chand who is attesting witness has also supported the statement of PW -5 Amar Chand. Basant Lal Gupta appeared as PW -4 and proved legal notice Ex.P -5. On the other hand, there is no evidence produced by the defendants before learned trial Court to rebut the evidence produced by the plaintiff. In written statement in para no.5, it is mentioned that further father of the answering defendants neither executed any agreement and nor thumb mark on the same, if three is any agreement in favour of the plaintiff, then the same was prepared on blank papers in collusion with scribe and witnesses. So, in such circumstances, it was burden upon the defendants to prove that the fraud has been committed with them but in lack of evidence same is not proved. There is no reason to disbelieve the evidence produced by the plaintiff. Hence, plaintiff proved that father of defendants No.1 to 5 and defendant No.6 executed agreement to sell dated 29.08.2002 in favour of plaintiff and received Rs.25,000/ - as earnest money. To prove his readiness and willingness plaintiff has proved document Ex.P -2, according to which on 16.06.2003 plaintiff remained present in the office of Sub -Registrar but defendants did not turn up. Hence, it is proved that agreement dated 29.08.2009 is valid and binding upon the parties. It is also proved that plaintiff always remained ready and willing to perform his part of contract. Hence, present suit is also maintainable. Therefore, findings of learned trial Court on issues no.1 to 3 are reversed and these issues are decided in favour of the plaintiff. Plaintiff has locus standi as well as cause of action to file the suit. Defendants failed to prove that plaintiff is stopped from filing the suit by his own act and conduct. Therefore, issues no.4 to 6 are decided against the defendants."
(3.) FEELING aggrieved from the aforesaid judgment and decree of the lower appellate Court, the defendants have filed the instant appeal submitting that the following substantial questions of law arise in this appeal: (i) Whether the agreement in question stands proved or is forged and manufactured document? (ii) Whether the testimony of the respondent/plaintiff is worth credence particularly in view of the fact that he has concealed the said mortgagee Hukam Chand was his son and has referred to him as (one Hukam Chand)? (iii) Whether the impugned judgment and decree of the Lower Appellate Court is the result of misreading of evidence? (iv) Whether in view of redemption of the suit land and keeping in view the prayer clause in the plaint, the suit has become infructuous? ;