NAFE SINGH Vs. SURESH

JUDGEMENT

(1.) THE defendant is in second appeal against the judgment and decree of the Courts below whereby suit of the plaintiff for specific performance of agreement to sell was decreed. THE case of the plaintiff is that the defendant agreed to sell 8 kanals 0 marlas of land situated at village Badesra, Tehsil and District Bhiwani to the plaintiff by way of an agreement to sell dated 20.12.1999 for a consideration of Rs.1,50,000/- and received a sum of Rs.93,000/- at the time of agreement, which was agreed to be executed till 20.6.2001. THE plaintiff claims to be always ready and willing to perform his part of the contract and for that purpose, on 20.6.2001, he went to the office of Sub- Registrar, Bhiwani along with balance sale consideration and got his presence marked but the defendant did not come present. THE plaintiff also served a legal notice dated 30.8.2001 calling upon the defendant to perform his part of the contract but that also proved to be futile and hence, the suit was filed. In the written statement, besides the technical objections, it was pleaded on merits that suit land was mortgaged by the defendant to Satish, brother of the plaintiff on 2.8.1994 by registered mortgage deed for Rs.40,000/- and delivered him possession. It is also alleged that he was in need of more money and requested for additional mortgage of the suit land for Rs.25,000/- which was given to him and was asked to execute the document. Since he was an illiterate person, the plaintiff and his brother in collusion with deed writer prepared the alleged agreement to sell in favour of the plaintiff instead of execution of a document for further mortgage and obtained his signatures. He alleged that he came to know about the agreement to sell for the first time on 18.9.2001 when he received legal notice. He also denied the receipt of Rs.93,000/- as earnest money. On the pleadings of the parties, following issues were framed:

(2.) BOTH the parties led oral as well as documentary evidence, however, the learned trial Court decreed the suit against which the plaintiff filed first appeal, which was dismissed by the learned Additional District, Judge (Fast Track Court), Bhiwani vide its judgment and decree dated 21.8.2009 observing that the agreement to sell dated 20.12.1999 (Ex.P1) was proved by Nafe Singh (PW1), the attesting witness Rajbir (PW2) and second attesting witness Satish (PW3). The signatures of deed writer S.C.Gupta who has admittedly expired, were identified by his brother-in- law Om Parkash Singal, deed writer, who appeared as PW5. The stamp vendor Rampal Singh (PW4) has also deposed that plaintiff Nafe Singh had purchased a stamp paper of Rupee 3/- from him which is entered in his register Ex.P5 at serial No.75. It was thus, held by the Court below that the plaintiff, who has admitted his signatures on the agreement to sell has failed to prove the story coined by him of fraud having been played with him. In the second appeal, the questions of law that have been framed in the memo of appeal are whether the plaintiff has failed to prove the agreement to sell as per Indian Evidence Act, 1872 and whether findings are based on conjectures and surmises and liable to be returned in favour of the defendant/appellant. Insofar as question No.1 is concerned, it is based upon finding of fact and nothing has been brought before this Court to show as to how the agreement to sell is in contravention of the provisions of Indian Evidence Act, 1872. Further the defendant has failed to prove as to how the finding returned by both the Courts below suffers from conjectures or surmises. As a matter of fact, no argument worth consideration has been raised by learned counsel for the appellant, therefore, I do not find any merit in the present appeal and the same is hereby dismissed though without any order as to costs.