Sharma, J. - (1.) In this appeal, preferred by the defendant appellant (for short the defendant) challenge has been made to. the decree and judgment dated 18.2.1995 passed by the learned Additional District Judge No. 2 Jaipur City, Jaipur whereby the suit for specific performance of the contract instituted by the plaintiff respondent (for short the plaintiff) was decreed.
(2.) The pleadings of the parties reveal the following generalogy and facts :- (i) Anil Kumar the husband of the plaintiff, was included as tenant in the disputed shop by the defendant in the month of March 1982 at the rate of Rs. 450/- per month as rent. The defendant offered rupees one lakh many a time to Anil Kumar and persuaded him to vacate the said shop but Anil Kumar did not agree. At last the defendant became ready to sell the shop in consideration of rupees one lakh fifty seven thousand Anil Kumar agreed to purchase the shop in "the name of the plaintiff. On 15.8.1988 an agreement duly drafted by the defendant advocate, was handed over to the plaintiff by the defendant after putting his signatures over it. The defendant though received rupees fifty seyen thousand in advance but in the agreement, only rupees five thousand was shown to have taken in advance and it was agreed that the plaintiff would pay remaining amount of rupees one lakh on or before 31.4.1989'and thereafter sale deed would be registered and possession of the house would be handed over to the plaintiff. But the defendant refused to perform the agreement in the month.of December 1990. Thus the plaintiff sought relief in the form of decree of specific performance of the agreement dated 15.-8.1988. (ii)The defendant in the written statement pleaded that at the time of induction of Anil Kumar as tenant in the disputed shop, a sum of Rs. 12,000/- was taken by the defendant on security towards the payment of rent. Since the shop was required for bona fide personal necessity of the defendant he requested Anil Kumar to vacate the shop and Anil Kumar agreed to vacate the shop by 30.4.1989 subject to the condition that the security deposit of Rs. 12,000/- was returned to him. In this regard he executed an affidavit on.stamp paper of Rs.5/- on 15.8.1988 in which it was stated that Anil Minocha had received Rs. 12,000/- which was deposited towards security of rent. When the shop was not vacated, the defendant instituted a suit for eviction of the said shop against Anil Minocha on the ground of bona fide necessity and default in payment of rent. The said suit is pending in the Court of Additional District Judge No. 2 Jaipur City. Much after filing of the suit for ejectment 'the plaintiff in collusion with her husband instituted a suit for specific performance on the basis of a forged document. The defendant neither executed the said agreement nor received any amount from Anil Minocha or the plaintiff. (iii) following three issues were framed out of the pleadings of the parties:- (a) Whether the defendant executed agreement to sell on 15.8.1988 after receiving Rs. 57,000/- as advance against Rs. 1,57,000/- - the total sale price of the shop? (b) Whether the plaintiff was ready and willing to perform the agreement to sell dated 15.8.1988 and was entitled to specific performance of the same from the defendant? (c) Relief? (iv) The plaintiff examined Anil Kumar P.W. 1,'RajeevBindalP.W. 2, Peru Mai P.W. 3, Chandra Prakash P.W. 4, Nathu Singh P.W. 5 and Krishna Charan Sexana Hand Writing Expert P.W. 6. As many as 21 documents were exhibited by the plaintiff The defendant produced himself as D.W. 1, Jugal Kishore D.W. 2, Mohd. Umar D.W. 3, Gyan Prakash Sharma,. Hand Writing Expert D.W.4. Report of Hand Writing Expert was exhibited as Ex. A/1. The learned trial Court decreed the suit as mentioned herein- above.
(3.) Before adverting to the arguments advanced by the learned counsel for the parties, following salient features of the documents Agreement to sellEx. 1' are necessary to be looked into- (a) Columns of dates at pages 1 & 3 of the document have been left blank. The document does not bear any date. (b) Date'31.4.19891 has been mentioned repeatedly four times as dead line of payment of Rupees one lakh and for delivering the possession of the shop whereas the month of April ends on 30th. (c) It has also been stated in the document that Risal Singh obtained Rupees five thousand from the plaintiff Smt. Sarita Minocha and issued receipt to her. (d) The document was witnessed by Sultan Khan and Anil, the husband of the plaintiff. (e) Neither the signatures of the executants of the documents were identified nor they were attested by any attesting authority. (f) the stamp of Rs. 5/- was purchased from stamp vendor Shri Mohan Lal Agrawal on 7.7.1988 in the name of Risal Singh but the column as to for what purposes it was purchased, left blank. There is yet another document 'Affidavit of Anil Minocha Ex. 22' salient features of which are as under:- (a) Affidavit was executed on stamp of Rs. 25/-purchased on.7.7.1988 from stamp vendor Shri Mohan Lal Agarwal in the name of Anil Kumar. The column as-to for what purposes it was purchased left blank. (b) In the affidavit Anil Kumar admitted that he received back rupees twelve thousand paid against security for rent from Risal'Singh. (c) The affidavit was executed on 15.8.1988 and Anil Kumar promised that he would vacate the shop on or before 30.4.1989 failing which Risal Singh could take recourse of legal action. (d) The affidavit was executed in presence of witnesses Yasin Khan and Gulab Chand. (e) Anil Kumar was identified by Advocates Lakshmi Raj Singh and S.C. Khandelwal. (f) The affidavit was attested by Notary Public on 15.8.1988.;