JAMIL AHMAD Vs. SAYEED AHMAD

JUDGEMENT

(1.) THE plaintiff filed a suit for specific perfor ­mance of the agreements dated 27.12.1972 and 18.7.1973 against the defendant No. 1. It was alleged that in the first agreement, it was agreed, that the total sale consideration would be for a sum of Rs. 2550 for plot No. 2684. It was also contended that if the defendant failed to execute a sale deed for plot No. 2684, in that event, the defendant would execute the sale -deed for plot No. 2668 and, in case the sale -deed was not executed, then the defendant would return double the amount by way of damages: At the time of this agreement, a sum of Rs. 500 was paid in advance. Subsequently, by another document dated 15.5.1973, a further sum of Rs. 300 was paid to the defendant and, by another document dated 15.4.1974, Rs. 1500 was paid. In view of the said payments, only a sum of Rs. 250 remained in balance. In the receipt dated 15.7.1974, it was stated that the possession of the said plot was being handed over to the plaintiff upon receiving a sum of Rs. 1500. It is alleged that the plaintiff soon thereafter constructed a house in due course of time. By the second agreement dated 18.7.1973, it was agreed that the defendant would sell plot No. 2746 for a total consideration of Rs. 1397.50 and a sum of Rs. 400 was paid in advance. By a document dated 12.12.1973, time for the execution of the sale -deed was ex ­tended. Since the defendant failed to execute the sale -deed, the plaintiff filed the present suit for specific performance. Subsequently, the defendant No. 2 was impleaded as a party on the allegation that the defendant No. I had sold the property to defendant No. 2 vide sale deed dated 12.5.1977 and 27.5.1977. It was alleged that defendant No.2 was the nephew of defendant No. 1 and the same was made without any consideration only to defeat the suit. The defen ­dant No. 1 resisted the suit and contended that he had never executed any agreement for specific performance though he had admitted that he had bor ­rowed a sum of Rs. 500 and Rs. 400 from the plaintiff as a loan and had exe ­cuted two documents for that purpose. The defendant contended that the two documents dated 27.12.1972 and 18.7.1973 were only executed for the purpose of the loan and that the plaintiff played a fraud by incorporating the words of specific performance which the defendant had never agreed. The defendant also denied the execution of the receipts dated 15.5.1973 and 15.4.1974 and also submitted that no possession was handed over to the plaintiff.

(2.) THE defendant No. 2 also filed his written statement alleging that he was a bona fide purchaser in good faith and had no notice of any agreement exe ­cuted between the plaintiff and defendant No. 1 and, further denied that he was a relative of defendant No. 1 and submitted that the suit was barred by limitation.

(3.) AGGRIEVED by the dismissal of the suit, the plaintiff filed an appeal which was allowed and the judgment of the Trial Court was set aside and the suit was decreed in terms of the relief claimed by the plaintiff. The Appellate Court found that the two agreements had been admitted by the defendant No. 1 himself and therefore, the question that the agreement was not proved was patently baseless. The Appellate Court found that the defendant himself ad ­mitted the execution of the two agreements as a loan agreement and not as a document for specific performance. Consequently, the question of the two docu ­ments not being proved by the plaintiff did not arise since the defendant him ­self admitted the said documents. The Appellate Court further found that the Trial Court has wrongly placed the burden upon the plaintiff to prove that the said agreements were not a loan agreement and that it was an agreement for specific performance, whereas the burden was upon the defendants to prove that the plaintiff had played a fraud upon the defendant in making the agreement of loan into an agreement for specific performance. The Appellate Court further found that no evidence was led by the defendant on the question of fraud being played by the plaintiff and therefore, concluded that the defen ­dant was unable to prove that fraud was played by the plaintiff. The Appellate Court further found that the expert had given a categorical finding that the signatures in the agreement as well as in the receipts were that of the defendant. The Appellate Court itself perused the thumb -impression in the agreement, receipts and compared with the thumb -impression in the sale -deed executed in favour of the appellant and also concluded that the thumb -impres ­sion was that of the defendant No. 1. The Appellate Court found that the re ­ceipt dated 15.4.1974 for Rs. 1500 was rightly rejected by the Trial Court on the ground that the name of the defendant was not disclosed below the thumb -impression, whereas the said document was proved by P.W. 5 who deposed that he had written the documents and that the defendant No. 1 and the plaintiff had placed their thumb -impression and signatures respectively before him. The Appellate Court further found that D.W. 1 had also admitted the execution of the two agreements dated 27.12.1972 and 18.7.1973 by defen ­dant No. 1 in his presence. The Appellate Court further found that defendant No. 2 had nowhere stated in his written statement that he had constructed the house on the plot in question after the execution of the sale -deed and therefore, concluded that the plaintiff was in possession of the plot and that, he had con ­structed the house on it. The Appellate Court further found that the address of the defendant No. 2 given in the sale -deed executed in his favour was the same address as that of defendant No. 2 and therefore, concluded that they were liv ­ing in the same house and therefore, there were a relationship between the two. The Appellate Court further found that no consideration had been paid for the execution of the sale -deed by defendant No. 1 in favour of defendant No. 2. In view of the aforesaid findings, the Appellate Court reversed the decision of the Trial Court and decreed the suit of the plaintiff.