DALBIR SINGH Vs. RAGHBIR SINGH

JUDGEMENT

(1.) This regular second appeal has been filed by the defendantappellant against the judgment and decree dated 18.1.2005 passed by the learned Additional District Judge, Kaithal whereby the appeal of the defendant-appellant against the judgment and decree dated 11.8.2003 passed by the learned Civil Judge (Senior Division), Guhla has been dismissed. Bachan Singh, plaintiff (since deceased and now represented by his LRs Raghbir Singh etc., respondents) filed a suit for possession of land measuring 16 Kanals as detailed in para 1 of the plaint by way of specific performance of an agreement dated 14.12.1998. The defendant, it was alleged, had agreed to sell the suit land in favour of the plaintiff Bachan Singh for a consideration of Rs.1,35,000/- per acre. In consequence of the agreement the defendant is stated to have received Rs.1,25,000/- as earnest money in the presence of witnesses. The date for execution and registration of the sale deed was fixed as 15.12.1999 in terms of the said agreement. A day before the date fixed for execution and registration of the sale deed, the plaintiff approached the defendant at his residence to get the sale deed executed after receiving the balance consideration. The defendant assured the plaintiff that he would come in the office of Sub Registrar, Guhla on the date fixed. However, even though the plaintiff was present in the Tehsil complex on 15.12.1999 from 9.00 a.m. To 5.00 p.m. along with the balance sale consideration but the defendant did not turn. The plaintiff got his presence marked before the Sub Registrar. Thereafter, he served a legal notice dated 8.1.2000 calling upon the defendant to come present on 24.1.2000 in the office of Sub Registrar, Guhla. On that day also the plaintiff remained present in the office of Sub Registrar but the defendant did not come to execute the sale deed. Despite making repeated requests, the defendant failed to execute the sale deed which resulted in the filing of the suit.

(2.) The defendant contested the suit and took the stand that he had never agreed to sell the suit land in favour of the plaintiff and never received any earnest money nor executed any agreement to sell as alleged. In fact, the agreement to sell, it was stated, was the result of fraud and misrepresentation and the document had been procured by the plaintiff with the connivance of his son Sardool Singh, Advocate, who acted at the beck and call of M/s Sanjeev Kumar Satish Kumar, Commission Agent at Cheeka Mandi to whom he had been selling his crop and also borrowing advance to meet out day to day needs. In good faith, the said firm used to take his thumb impression on blank/printed papers to secure the recovery of money advanced. His thumb impression on the blank papers had been procured on the agreement in question by the son of the plaintiff at the instance of the said Commission Agent firm. This fact is stated to have also been proved as one of the witnesses is a partner of the said firm. Therefore, it was stated that the defendant never intended to sell his land nor had he executed any agreement so he was not liable to hand over the possession. Replication was filed controverting the allegations in the written statement and re-asserting the averments as made in the plaint. The learned trial Court framed the following issues in the case:-

(3.) After considering the evidence and material on record, the learned trial Court held that the plaintiff is entitled to the suit property by way of specific performance of the agreement dated 14.12.1998. In appeal, the judgment and decree of the trial Court has been affirmed by the learned Additional District Judge vide her judgment and decree dated 18.1.2005 which is assailed in the present appeal.