INDER RAM AND OTHERS Vs. GURPREET KAUR

JUDGEMENT

(1.) Gurpreet Singh filed a suit for recovery of Rs. 4,500/-, Rs. 3,000/- being the earnest money paid by him to Kaka Ram defendant and Rs. 1,500/- by way of liquidated damages on the ground that there was an agreement of sale dated 2.2.1967, Exhibit P-2, vide which Kaka Singh defendant agreed to sell his land measuring 28 bighas, 4 biswas in his favour for Rs. 7,000/- and while the plaintiff was ready and willing to perform his part of the contract, the defendant failed to execute the sale-deed. Hence the suit. The defendant contested the suit and pleaded that he did not enter into an agreement of sale, nor any advance was given to him. He also pleaded that plaintiff's father had agreed to sell the land belonging to her daughter, as her attorney, to him (defendant had paid Rs. 3,000/- to him as earnest money and the suit was filed as a counter-blast. Both the courts below did not agree with the plea of the defendant that there was any agreement between him and the sister of the plaintiff and found that the agreement between the parties was proved and since the plaintiff was ready and willing to perform his part of the contract and the defendant was not, a decree for the return of Rs. 3,000/- and for Rs. 200/- by way of damages was passed. This is defendant's second appeal.

(2.) It is the admitted case of the parties that the defendant is tenant of plaintiff's wife in respect of certain other hand. It is also the admitted fact that the defendant had purchased the land in dispute from Smt. Harinder Kaur, sister of the plaintiff on 24.6.1959 and the other brother of the plaintiff filed a suit to challenge the sale on certain grounds which ultimately failed. In this background the evidence brought on the record deserves to be appreciated.

(3.) Normally, in second appeal the evidence cannot be reappraised and finding of fact recorded by the Courts below cannot be disturbed, but if it is shown that the important feature of the case are not Kept in view or if the evidence is not considered on the correct legal principles, then the findings stand vitiated and in that situation, the evidence can be reappraised. The agreement of sale is alleged to have been scribed by Thakar Singh, who also is one of its attesting witness. Joginder Singh is the other attesting witness, who has not been produced. Thakar Singh has been produced as PW-2. A reading of his statement shows that he is purely a chance witness as he had gone to plaintiff's house on the fateful day for purchasing a scooter but did not purchase any scooter either from the plaintiff or anybody else. He further admitted that later on also, he did not purchase any scooter. Contracts like agreement of sale before they are written, are arrived at after due deliberations and if the matter of price, area, etc. had been settled earlier, then the agreement of sale would have been got executed from some regular petition writer. It is not the plaintiff's case that agreement was arrived at after the deliberations were made any time before 2.2.1967. If talk for settlement of terms was to start on 2.2.1967, then the matter of writing the document and of having the attesting witnesses, could not be left to chance witnesses like Thakar Singh because to my mind, a reading of his statement and that of the plaintiff clearly go to show that there are material contradictions in the two statement because the plaintiff in his own statement never stated if he ever had a scooter; if he ever advertised for the sale of the scooter and as to way the matter was not written from a regular petition-writer because the plaintiff belonged to Patiala whereas the defendant is alleged to have come from Malerkotla and Patiala being a Sessions Division and District headquarters, large number of petition writers were available, the following things have persuaded me to come to the conclusion that the alleged agreement of sale is a fake document and that no consideration passed on its basis.