MUKHTIAR SINGH Vs. MAKHAN SINGH

JUDGEMENT

(1.) This is defendant's appeal filed under S. 100 of the Code of Civil Procedure, 1908 challenging the view taken by the lower Appellate Court. The judgment and decree partially allowing the suit of the plaintiff-appellant passed by the trial court has been reversed even with regard to payment of Rs. 10,000/- as earnest money to the plaintiff-appellant. According to the categorical findings recorded by both the Courts below, it has been held that the cause of action to file the suit had arisen on 30-5- 1989 and the suit could have been filed within a period of three years from the date of cause of action as per Article 54 of the Schedule of Limitation Act, 1963 (for brevity, 'the Act'). It is appropriate to mention that an agreement to sell was executed on 4-1-1989 and an amount of Rs. 10,000/- as earnest money was paid. According to the agreement, the land was priced at Rs. 20,000/- per killa. The parties had agreed to execute the sale deed on 30-5-1989. However, the suit was filed on 7-12-1992 which is apparently beyond the period of limitation. It is appropriate to mention that the defendant-respondent Makhan Singh had also filed a suit for recovery of possession being Civil Suit No. 76-1/10-12-1992.

(2.) It has been found concurrently that reliance of the plaintiff-appellant on the endorsement Ex. P.W. 1/A extending time for execution of sale deed has not been meritorious because to the naked eye, the signatures of defendant-respondent Makhan Singh on that endorsement have been found to be different than the standard signature and for that reason both the Courts below have preferred the expert report Ex. D.W./ 2A. The differences pointed out by the lower Appellate Court with regard to the authenticity of the signatures in Punjabi Gurmukhi Script of the defendant-respondent on the endorsement read as under :-

(3.) The Courts below have given categorical findings that the reasons recorded in the endorsement for extension of time were also not plausible inasmuch as defendant-respondent Makhan Singh was stated to have taken extension of time in order to redeem the land from mortgage. The reason has been rejected by holding that the land was mortgaged with the Bank and execution of the sale deed could have been made subject to the mortgage. On the contrary, the defendant-respondent would have received the balance consideration and his position to redeem the mortgage would have been strengthened because he would have paid to the mortgagee the amount of loan taken from the Bank would have been deducted from the balance sale consideration at the time of execution of sale deed. Even otherwise, there was no stipulation in the agreement Ex. P.W. 3/B dated 4-1-1989 to the effect that the sale deed would be executed after clearance of loan from the Bank. There is not even a mention in the agreement with regard to payment of loan against defendant-respondent Makhan Singh or that the suit land was under mortgage.