2015 (11) TMI 1885 - HC - Indian Laws

Suit for possession by way of specific performance of the agreement to sell on payment of balance sale consideration - HELD THAT - It is held that the execution of agreement to sell to be duly proved. Plea of fiduciary relationship as pleaded by the defendants was rejected by the trial Court as well as by the Appellate Court. Execution of agreement to sell Ex.P1 was duly proved. The agreement to sell has been proved with reference to statement of scribe as well as of attesting witnesses. Passing of consideration to the tune of Rs.4,00,000/- has been proved with reference to the statement of attesting witnesses. PW-1 Ajit Singh who is one of the attesting witness to agreement to sell Ex.P1 has specifically deposed about due execution of agreement to sell at the instance of defendants No.1 and 2. He has also endorsed the factum of passing of consideration worth Rs.4,00,000/- in the presence of witnesses Bikram Singh son of Sher Singh and the agreement to sell was duly scribed by Rana Partap Singh deed writer and defendants No.1 and 2 appended their thumb impressions admitting the contents of the agreement to sell to be correct - Bald statement of Gurmail Singh as DW-1 has not been taken to be sufficient evidence as against convincing overwhelming evidence led by the plaintiff. Gurmail Singh DW-1 took a plea that thumb impressions of the defendants No.1 and 2 were taken upon the paper already prepared by the plaintiff in collusion with Ajit Singh. In cross examination the witness even did not admit his signature upon which the alleged agreement to sell Ex.P-1 was scribed. The stand advanced by DW-1 Gurmail Singh was held to be contradictory with the stand taken in the cross examination. Either the alleged agreement to sell Ex.P-1 was not the said document stated by the defendant in his cross examination or the earlier account submitted by the defendant was not correct. Bare perusal of Ex.P1 reveals that the stamp papers were purchased by DW-1 Gurmail Singh himself on 07.06.2003 from the stamp vendor but he miserably failed to examine the stamp vendor to prove the factum of his not visiting the stamp vendor for the purpose of purchasing the stamp papers in question. Once the agreement to sell is proved, grant of decree is a natural consequence of the same, unless and until a case of hardship is pleaded by the defendants in terms of Section 20 of the Special Relief Act. Since no such hardship has been pleaded by the defendants in the defence, therefore, question No.2 has to be answered against the appellant. Question No.3 in the context of fiduciary relationship of the defendants with Ajit Singh has not been proved to the extent of discarding the case of the plaintiff which is based on lawful evidence on record. Particulars of fiduciary relationship have not been proved on record with reference to evidence, therefore, question No.3 does not arise at all. Appeal dismissed.

Summary

Issues:
1. Suit for possession by way of specific performance of the agreement to sell dated 07.06.2003.
2. Allegation of failure by defendants to execute the sale deed on the agreed date.
3. Contention of fiduciary relationship between defendants and an attesting witness.
4. Examination of evidence to establish execution of the agreement to sell and passing of consideration.
5. Dispute regarding the authenticity of the agreement to sell and the involvement of the attesting witness.
6. Analysis of the evidence presented by both parties and the findings of the trial court and appellate court.
7. Application of Section 20 of the Special Relief Act in the absence of a plea of hardship by the defendants.

Detailed Analysis:

1. The plaintiff filed a suit for possession based on an agreement to sell dated 07.06.2003, alleging that the defendants failed to execute the sale deed on the agreed date despite receiving earnest money and agreeing to the sale terms.

2. The defendants contested the suit, denying the execution of the agreement to sell and alleging a fiduciary relationship between an attesting witness and the plaintiff, casting doubt on the authenticity of the agreement.

3. The trial court and appellate court found the execution of the agreement to sell duly proved based on the evidence presented, rejecting the plea of fiduciary relationship as unsubstantiated.

4. The attesting witness and other witnesses corroborated the due execution of the agreement, with the plaintiff demonstrating readiness to fulfill the agreement terms by presenting the balance sale consideration.

5. The defense's argument regarding the alleged collusion in preparing the agreement was refuted by the evidence presented, highlighting contradictions in the defense's stance and the lack of substantial evidence to support their claims.

6. The courts below analyzed the evidence thoroughly, concluding that the plaintiff's case was supported by trustworthy accounts and reliable witness testimonies, leading to the dismissal of the appeal due to lack of grounds for interference.

7. The court emphasized the importance of not reappreciating evidence in a second appeal and highlighted the natural consequence of proving the agreement to sell, unless hardship under Section 20 of the Special Relief Act is pleaded, which was not the case here, leading to the dismissal of the appeal.

In conclusion, the judgment upheld the validity of the agreement to sell, dismissed the appeal due to lack of substantial evidence to challenge the lower courts' findings, and emphasized the importance of establishing hardship under the relevant legal provisions to contest specific performance claims.