AVTAR SINGH Vs. JARMANJIT SINGH

JUDGEMENT

(1.) This is a second appeal by the unsuccessful plaintiff-appellant against the judgment and decree dtd. 3/10/2018 passed by the Trial Court and judgment and decree dtd. 7/2/2024 passed by the First Appellate Court whereby his suit for possession by way of specific performance or in the alternative suit for recovery, mandatory injunction and permanent injunction has been dismissed.

(2.) As per the plaintiff-appellant the defendant-respondent is the owner of the suit land and he proposed to sell the same to the plaintiffappellant. An agreement to sell was reduced into writing on 27/2/2013 and the sale price was fixed as Rs.20,00,000.00 per acre. The total sale consideration was to be Rs.17,50,000.00 out of which Rs.12,00,000.00 was paid as earnest money as part of the sale consideration and the date of execution of the sale deed was fixed as 1/3/2014. On 1/9/2014 the defendant- respondent got the date for execution of the sale deed and registration extended vide an endorsement on the back of the agreement to sell and the same was signed and thumb marked by him and attested by the attesting witnesses. As per the plaintiff-appellant the defendant-respondent did not disclose that the suit land was under encumbrance and when the revenue record was perused it come to light that the suit land is subject to mortgage without possession with the Punjab State Federation of Coop. Society. The defendant-respondent orally agreed to remove the encumbrance before the stipulated date of execution and registration of the sale deed and also promised that if he was not able to redeem the suit land the plaintiffappellant shall be entitled to redeem the same on becoming owner of the suit land with the balance sale consideration and as such the mortgage money was within the balance sale consideration agreed to be paid at the time of execution and registration of the sale deed. On the stipulated date i.e. 1/9/2014 the plaintiff-appellant came to the office of Sub Registrar with the balance sale consideration but 1/9/2014 was a holiday and the defendant-respondent promised to perform his part on the next day. On 2/9/2014 the plaintiff-appellant remained present in the Tehsil compound till 5.00 pm along with the balance sale consideration as well as stamp papers and also brought the other expenses of writing and registration of the sale deed and both the attesting witness but the defendant-respondent did not turn up and the plaintiff-appellant got marked his presence before the Sub Registrar. As per the plaintiff-appellant he had always been ready and willing to perform his part of the contract but the defendant-respondent was resiling from the same. Hence, the present suit. The defendant-respondent contested the suit and filed his written statement raising preliminary objections of suppression of material facts, the alleged agreement to sell dtd. 27/2/2013 being a fabricated document, no cause of action and no locus standi etc. On merits it was denied that the defendant-respondent ever proposed to sell the suit land to the plaintiff-appellant and that the alleged agreement was forged and fabricated. It was contended that the plaintiffappellant was doing the business of commission agent and had prepared a forged and fabricated agreement to sell in connivance with the marginal witnesses who are closely related to him. It was stated that the defendantrespondent never received a single penny from the plaintiff-appellant as alleged in the agreement to sell and that the plaintiff-appellant wanted to grab the property of the defendant-respondent and that the defendantrespondent never entered into any agreement to sell with the plaintiffappellant so there was no occasion for him to come present in the office of the Sub Registrar or receiving earnest money of Rs.12,00,000.00. The plaintiff-appellant filed a replication controverting the allegations made in the written statement and reiterating those made in the plaint.

(3.) From the pleading of the parties the following issues were framed by the Trial Court :