DIWAN CHAND Vs. KULDIP KUMAR MEHTA

JUDGEMENT

(1.) THE defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below whereby suit of the plaintiff for specific performance of the agreement to sell dated 3.6.1995 stands decreed.

(2.) THE plaintiff-respondent filed a suit for specific performance of the agreement of sale dated 3.6.1995 in respect of the property measuring 1-1/4 marls agreed to be sold by the defendant for a sum of Rs. 1,87,000/-. It is the case of the plaintiff that a sum of Rs. 51,000/- was paid as earnest money to the defendant and the sale deed was to be executed on payment of balance sale consideration on 5.10.1995. Since the defendant failed to execute the sale deed, even though the plaintiff remained present in the office of the Sub Registrar on the aforesaid date, the plaintiff filed the present suit for specific performance of the agreement of sale after giving another opportunity to the defendant to get the sale deed executed.

(3.) AFTER considering the evidence led by the parties, both the Courts below have decreed the suit. The learned trial Court found that the agreement was scribed by regular scribe. PW-3 Milkhi Ram is the attesting witness. Plaintiff also examined PW-4 Santosh Sehgal who identified the signatures of Sub Registrar on Exhibit P-4. PW-1 Paramjit Singh and PW-5 H.K. Seth are the witnesses to prove the ready and willingness of the plaintiff to seek execution of the sale deed and the pay orders prepared for the payment of the balance sale consideration. The plaintiff himself examined as PW-2. Whereas the defendant appeared himself as DW-1. The learned trial Court found that a perusal of the agreement Exhibit P-3, shows that the signatures of the defendant are appended on it alongwith the signatures of Pardeep Kumar, Jatinder Veer and Comrade Milkhi Ram. The defendant has admitted his signatures on Exhibit P-3 at the points A and B and that he knows Comrade Milkhi Ram. The Court found that the defendant has not lodged any complaint in respect of execution of the agreement. Only DDR No. 9 dated 19.11.1995, Mark- A, has been produced. The subject matter of such DDR is not for obtaining the signatures by the plaintiff, but it is in respect of complaint that Kuldip Kumar, Babu and Saroj Kumari called bad names to the defendant and were to beat him. Thus, the Court found that the agreement of sale is proved to be executed and granted a decree for specific performance in favour of the plaintiff. The learned First Appellate Court affirmed the findings recorded by the learned trial Court, although it recorded finding that the defendant has admitted his signatures in the cross-examination on the agreement of sale Exhibit P-3 and that he has received earnest money in the sum of Rs. 51,000/-.