HARWINDER SINGH Vs. GURPREET SINGH

JUDGEMENT

(1.) This Regular Second Appeal arises out of a suit for specific performance of agreement to sell. The date of the agreement to sell is 5/5/2006 and the same is Ex.P1 on the record. Defendant No.1 agreed to sell his land measuring 01 bigha, 16 biswa and 11 biswansi to the plaintiffs for a total consideration of Rs.2,10,000.00. The entire consideration was paid at the time of execution of agreement to sell and possession was also delivered. Defendant No.1 had undertaken to get the sale deed registered after mutation of inheritance from his mother, namely, Ravinder Kaur was sanctioned in his favour. Suit has been decreed and appeal has been dismissed. The second appeal has been preferred by defendant No.2 i.e. subsequent purchaser.

(2.) Other relevant facts are that defendant No.1 i.e. the owner, threatened to alienate suit property in August, 2006 which led to the filing of a suit for permanent injunction by the plaintiffs. In reply, defendant No.1 admitted the agreement to sell as is evident from the judgment of the trial Court. The suit was finally decided vide award dtd. 1/5/2010 passed by the Lok Adalat which is Ex.P4 on the record. The award is based upon statement dtd. 1/5/2010 of defendant No.1. He admitted the agreement to sell and stated that the sale deed would be executed within one week. He also gave an assurance that the suit property would not be alienated. Before that defendant No.1 had executed agreement to sell dtd. 3/8/2006 in favour of defendant No.2. Thereafter, defendant No.2 filed a suit for specific performance, wherein, defendant No.1 put in appearance and pleaded that he had already executed agreement dtd. 5/5/2006 (Ex.P1) in favour of the plaintiffs. The plaintiffs also sought impleadment as party defendants, however, before they could be impleaded, the suit was withdrawn on 27/11/2010 as defendant No.1 had executed two registered sale deeds dtd. 16/11/2010 in favour of defendant No.2. The suit land is also subject matter of the said sale deeds. Consequently, the plaintiffs instituted the present suit on 23/12/2010. In the written statement filed on behalf of defendant No.1, the agreement to sell dtd. 5/5/2006 (Ex.P1) was denied. It was stated that defendant No.1 borrowed a sum of Rs.50,000.00 from the plaintiffs, whereupon, certain blank stamp papers were got signed from him. One Gulzar Singh was cited as a witness to this transaction. After six months, the money was repaid again in the presence of Gulzar Singh. Thus, the case set up by defendant No.1 was that the agreement to sell (Ex.P1) was a forged and fabricated. The reply filed in the suit for specific performance filed by defendant No.2 that agreement to sell dtd. 5/5/2006 had been executed, was sought to be explained by submitting that at the particular point in time, defendant No.1 was under the influence of the plaintiffs. Defendant No.2 contested the suit on the ground that he was a bona fide purchaser for consideration and that the agreement to sell dtd. 5/5/2006 (Ex.P1) was a fictitious document.

(3.) As mentioned hereinabove, the trial Court decreed the suit on a consideration and appreciation of the evidence produced by the parties. To prove the agreement to sell dtd. 5/5/2006 (Ex.P1), PW2, namely, Harpal Singh, an attesting witness was examined. He not only proved, the agreement to sell dtd. 5/5/2006 (Ex.P1), but also proved receipt (Ex.P2) evidencing payment of entire sale consideration. The plaint of the suit for specific performance filed by defendant No.2 was produced and proved on record as Ex.P10 and the written statement filed by defendant No.1 in that suit was produced and proved as Ex.P11. Application of the plaintiffs for impleadment as party defendants in the said suit was produced and proved as Ex.P12. The trial Court was, consequently, convinced that defendant No.1 had executed agreement to sell dtd. 5/5/2006 (Ex.P1) and had also received the entire sale consideration. The same had been proved on record through evidence and also through his admission in award dtd. 1/5/2010 (Ex.P4) which was based upon a statement Ex.P3 as well as his written statement in the suit for specific performance filed by defendant No.2. These findings of fact have been upheld by the First Appellant Court as appeal of defendant No.2 has been dismissed.