GURBAX SINGH ALIAS GURBAKSH SINGH Vs. RANJIT SINGH

JUDGEMENT

(1.) CM No.5736 -C -2015 CM is allowed. LRs are brought on record subject to just exceptions and for them to maintain and press the appeal. Amended memo of parties is taken on record.

(2.) THIS is the plaintiff's (dead) by LRs' second appeal having partially lost in the trial Court and completely before the first appellate court. In a suit for specific performance of an agreement to sell, the lower courts have declined the main relief but have granted the alternative relief of refund of earnest money of Rs. 500/ - Ex.P4. Defendant 1 -Ranjit Singh agreed to sell the suit property by a contract dated 29th January, 2002 in favour of the plaintiff. In the suit, alternative relief of recovery of money was also prayed for.

(3.) DEFENDANT 1 contested the suit and pleaded that the agreement was a forged document. The receipt which evidenced passing of earnest money was denied. Defendants 2 to 4 were proceeded ex parte. Parties went to trial. The plaintiff produced evidence to prove that the agreement was a genuine document and other evidence in support of a decree. However, the defendant examined Gurmit Kaur, a Handwriting and Finger Print Expert to prove to the contrary and after which he appeared as his own witness in support of his case and closed his evidence. The alleged receipt of a sum of Rs. 1,09,500/ - dated 9th October, 2002 Ex.P5 has been disbelieved. What became the moot point in the suit was that in para. 2 of the preliminary objections, the defendant pleaded that the agreement was a false, forged and bogus document which has no force in the eyes of law and is not binding on his rights. However, in para. 1 of the written statement on merits, the defendant admitted that he had entered into an agreement to sell his property to his elder brother, i.e., the plaintiff and received a sum of Rs. 500/ - as earnest money. It is argued that the defendant could not blow hot and cold at the same time on the same paper. The material question was dependant for its answer on the receipts Ex.P4 in the sum of Rs. 500/ - and Ex.P5 representing balance amount of sale consideration in the sum of Rs. 1,09,500/ -.