NOOR MOHD Vs. SHASHI AND OTHERS

JUDGEMENT

(1.) The defendant-appellant is in the regular second appeal against the concurrent findings of fact arrived at by the courts below, while decreeing the suit for specific performance of the agreement to sell dtd. 10/5/2006. Substantial question which requires determination is "whether oral evidence is permitted to prove that the written agreement is sham and intended to be something different than what is written therein or oral evidence is barred to examine under Sec. 92 of the Evidence Act"?

(2.) The plaintiff-Ram Niwas filed the present suit on 14/5/2010 by asserting that the defendant-appellant Noor Mohd. had entered into an agreement to sell with him to sell the land measuring 15 kanals and 16 marlas @Rs.1,62,500.00 per acre and received earnest money of Rs.2,70,000.00. Sale deed was agreed to be executed and registered on 15/5/2007. The plaintiff has pleaded that on 15/5/2007, he was ready and willing to perform his part of the contract but the defendant did not come forward and he also visited the office of Sub Registrar, Ferozepur Jhirka to get the sale-deed executed. Hence, in token of his attendance, he got an affidavit attested from the Sub Registrar on 15/5/2007 The plaintiff is alleged to have sent a notice through counsel on 19/3/2010 by registered post and thereafter filed the present suit.

(3.) The defendant contested the suit and pleaded that the plaintiff, who runs a jewellery shop, is also in the business of money lending and the defendant used to borrow the amount from him from time to time and every time whenever the amount was taken as a loan he would get agreement to sell signed as a security document. It is further asserted by the defendant that after settling the account, plaintiff with his own hand prepared an account statement dtd. 6/4/2007 in which the total outstanding amount was worked out at Rs.2,57,774.00 and finally accounts were settled for Rs.2,50,000.00. The aforesaid amount was paid but the plaintiff did not return the papers which were got signed and only issued a receipt of Rs.25,000.00 in place of Rs.2,50,000.00. It would be noted that Ram Niwas-plaintiff died on 10/11/2012. He did not appear in evidence although, issues were framed on 23/8/2011 and the case was adjourned for the evidence of the plaintiff to 25/11/2011 and 21/3/2012.