AFSAR GUJJAR Vs. BARKHA RAM

JUDGEMENT

(1.) The facts in this regular first appeal are these : Barkha Ram plaintiff sought the relief of specific performance of the agreement of sale dated 25.7.1995. In the alternative a sum of Rs. 18,000/- was claimed as damages. The plaintiff alleged, Afsar Gujjar defendant had agreed to sell his land measuring 24 Kanals 5 Marlas for a consideration of Rs. 24,000/- on 25.7.1995. Rs. 15,000/- were paid as earnest money and Rs.9,000/- were to be paid at the time of execution of the sale deed by 15.6.1976. On the defendant's failure to perform his part of the contract, the plaintiff was entitled to the refund of the earnest money along with Rs. 3,000/- as damages while in case of the failure on the part of the plaintiff to perform the contract, the defendant had the right to forfeit the earnest money. It was averred that the plaintiff had been willing and ready to perform his part of the contract. He was present in the office of the Registrar on 15.6.1976 as agreed with Rs. 9,000/-, the balance amount of consideration for payment to the defendant. The defendant did not turn up nor he executed the sale deed in his favour. The defendant had committed the breach of the contract. Hence the suit.

(2.) The defendant controverted the allegations and denied the execution of the agreement. Receipt of Rs. 15,000/- as earnest money was denied. It was averred that the defendant was an illiterate person and the plaintiff was a commission agent who by exploiting the defendant's innocence got his thumb impression on various papers under the pretext that they were required for the sale of the crops. Thus, the plaintiff committed fraud upon the defendant and forged the documents. On the pleadings of the parties, the following issues were framed :-

(3.) The counsel for the appellant contends that the agreement is surrounded by suspicious circumstances. The consideration amount is too low. The agreement suffers from uncertainty and it is further contended that the agreement is without consideration. The learned counsel has taken me through the statement of the plaintiff. Barkha Ram P.W. 1, Pawan Kumar P.W. 2, and Manohar Lal P.W. 4, the attesting witnesses, and Hari Kishan P.W. 5, the scribe of the agreement. The learned counsel contends that the evidence of the said witnesses is not reliable inasmuch as they being close relations of the plaintiff are interested witnesses. The contention of the learned counsel is not well-marited inasmuch as the statements of P.W. 2 and P.W. 3 show that they were not related to the plaintiff. Instead they were co-villagers. Even otherwise, mere relationship or being a co-villager in itself is not sufficient to hold that the witnesses are not reliable. Nothing substantial has been pointed out to disbelieve their statements in particular when the thumb impression on the agreement has been proved to be of the defendant though he had denied the same. Nothing has been pointed out by the learned counsel for the appellant to hold that the agreement does not bear the thumb impression of the appellant. The witnesses have categorically stated that the agreement was scribed at the instance of the appellant who after admitting the same to be correct thumb-marked it in their presence. They have further proved the payment of Rs. 15,000/- as earnest money. No substantial error or discrepancy in their statements has been pointed out to come to the conclusion that the finding arrived at by the trial Court on the basis of their evidence is erroneous or the view taken by it could not be taken.