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2021 (4) TMI 1373 - HC - Indian LawsSuit for possession through specific performance of an agreement by way of execution of sale deed of land - it is alleged that the agreement dated 6.11.1992 put forth by the plaintiff was a forged document which did not even bear their signatures. Whether the courts below have misread and misinterpreted the agreement to sell Exhibit PW-1/A inasmuch as it clearly identifies the property subject matter of agreement to sell and the findings thus recorded are vitiated? - HELD THAT - In the instant case agreement to sell refers to a Kutcha house allegedly owned and possessed by the defendants in an area of around 5 biswa at Kangar Tehsil Haroli District Una with further rider that revenue papers regarding Khasra number etc. of the house would be produced at the time of registration of sale deed. Neither the land in question nor the house involved has been identified in the agreement. No khasra number finds mentioned in the agreement. The extent of the area alleged to have been sold by the defendants in the agreement is around 5 biswa whereas the plaint talks about land measuring 0-9 marlas out of total land measuring 3 kanals and 4 marlas comprised in specific khasra numbers - All material aspects which needed to be reflected with certainity have been left in the realms of speculation. Neither the agreement gives out clear identity of the land nor it spells out the boundaries. Even the area of the house-subject matter of the agreement is not correctly recorded therein. No ascertainable or determinative intention can be deciphered from this agreement. Such an agreement to sell is not capable of enforcement. Its specific performance cannot be granted. Whether the courts below were wrong in dismissing the suit for specific performance by holding it to be hit of Section 9 of the Specific Relief Act and Section 29 of the Indian Contract Act in the absence of any such plea raised by the respondents in the written statement and the findings thus recorded are beyond pleadings? - HELD THAT - Section 29 of Indian Contract Act entitles a defendant to avoid an agreement if the same is void. Also the defendant is entitled to take the defence of vagueness void nature of the agreement in order to avoid its specific performance under Section 9 of the Specific Relief Act. Such a defence would essentially revolve around frame of the agreement and its logical interpretation in the facts of the case. Agreement being vague therefore un-enforceable is a plea which can be raised by the defendants even without specifically expressing it in the written statement - In TILAK RAJ BAKSHI VERSUS AVINASH CHAND SHARMA (DEAD) THROUGH L. RS. AND ORS. 2019 (8) TMI 1899 - SUPREME COURT the Apex Court was inter-alia considering two questions viz i) whether the High Court was right in without even a plea holding that the family settlement is vague and unenforceable and void ii) Whether the High Court was right in holding that the Courts could not exercise discretion under Section 20 of the Specific Relief Act 1963 as the contract is not specifically enforceable. Whether the courts below have misread and mis appreciated the statements of PW-1 and PW-2 and the findings thus recorded are vitiated? - HELD THAT - The stamp vendor was not examined by the plaintiff. Defendant No.2 Malkit Singh while appearing in examination-in-chief stated that Ext. PW1/A dated 6.11.1992 was a forged document and never executed by the defendants. This witness was not at all cross-examined by the plaintiff in respect of the valid execution of the agreement. No suggestion was given to this witness by the plaintiff that he had executed the agreement. Burden of proving due execution of the agreement was on the plaintiff which he failed to discharge. Under the circumstances there was hardly any necessity for expert opinion about signatures on the document - Plaintiff miserably failed to prove due execution of the agreement (Ext. PW-1/A). The agreement dated 6.11.1992 (Ext. PW-1/A) is vague void therefore not capable of being enforced. Plaintiff even otherwise has failed to prove its execution by the defendants in accordance with law. No interference in concurrent dismissal of plaintiff s suit by the learned Courts below is called for. Appeal dismissed.
Issues Involved:
1. Misreading and misinterpretation of the agreement to sell. 2. Dismissal of the suit for specific performance based on Section 9 of the Specific Relief Act and Section 29 of the Indian Contract Act. 3. Misreading and misappreciation of the statements of witnesses. Detailed Analysis: Issue 1: Misreading and Misinterpretation of the Agreement to Sell The plaintiff filed a suit for possession through specific performance of an agreement to sell land, claiming that the defendants had agreed to sell a 'Kutcha' house and land for Rs. 40,000, of which Rs. 30,000 was paid. The defendants denied the execution of the agreement, calling it a forged document. The courts below found the agreement vague and incapable of enforcement. The High Court noted that the agreement lacked clear identification of the property and did not specify the land or house boundaries, making it too vague to enforce. The court cited precedents emphasizing that specific performance requires a valid and enforceable contract, which was not present in this case. The agreement's vagueness rendered it void under Section 29 of the Indian Contract Act, 1872. Issue 2: Dismissal of the Suit for Specific Performance The plaintiff argued that the courts below erred in dismissing the suit based on Section 9 of the Specific Relief Act and Section 29 of the Indian Contract Act without these pleas being raised in the written statement. The court held that a plea of vagueness and void nature of an agreement can be raised at any stage as it is a legal question. The court referenced several judgments supporting this view, including the Supreme Court's decision in Keshav Lal Lallubhai Patel Vs. Lalbhai Tribumlal Mills, which allowed such a plea to be raised even in the appellate stage. The High Court concluded that the agreement was too vague and uncertain to be enforceable, affirming the dismissal of the suit. Issue 3: Misreading and Misappreciation of Witness Statements The plaintiff failed to prove the execution of the agreement. Witnesses provided inconsistent and unclear testimonies. PW-1 was unsure about the nature of the property involved and whether he understood the language of the agreement. PW-2, the scribe, did not produce the deed writer register, and the stamp vendor was not examined. Defendant No. 2 denied executing the agreement, and his testimony was not effectively challenged by the plaintiff. The court emphasized that the burden of proving the due execution of the agreement was on the plaintiff, which he failed to discharge. The court referenced the Karnataka High Court's decision in Sayed Moinuddin Vs. Md. Mehaboob Alam, which held that when direct witnesses to a document are unreliable, there is no need to seek expert opinion on signatures. The High Court found no merit in the plaintiff's claims and upheld the concurrent findings of the lower courts. Conclusion: The High Court dismissed the appeal, affirming the lower courts' decisions that the agreement was vague and void, and the plaintiff failed to prove its execution. The agreement's lack of clear identification of the property and inconsistent witness testimonies rendered it unenforceable. The court concluded that no interference with the concurrent dismissal of the plaintiff's suit was warranted.
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