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TMI Blog2015 (11) TMI 1885X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot arise at all. Appeal dismissed. - RSA-3560-2014 (O&M) - - - Dated:- 16-11-2015 - Hon'ble Mr. Justice Raj Mohan Singh For the Appellants : Mr. K.S. Chahal, Advocate. For the Respondent : None. ORDER RAJ MOHAN SINGH, J. (ORAL) 1. Defendants are in second appeal in a suit for possession by way of specific performance of the agreement to sell dated 07.06.2003 on payment of balance sale consideration of Rs.2,25,000/-. 2. Plaintiff alleged that defendants No.1 and 2 are husband and wife and they were having share in joint land as shown in the head note of the plaint. Defendant No.1 entered into an agreement to sell dated 07.06.2003 in respect of his share whereas defendant No.2 also agreed to sell lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ajit Singh. Parties were having great faith in aforesaid Ajit Singh. Ajit Singh is the attesting witness to agreement to sell. Besides the scribe he became attesting witness to agreement to sell in collusion with the plaintiff. In this way, fiduciary relationship is sought to be pleaded between defendants and aforesaid Ajit Singh who was instrumental in getting alleged agreement to sell executed between the parties. 5. Replication was not filed. Parties were asked to lead evidence on the following issues:- 1) Whether the defendant No.1 and 2 received Rs.4.0 lacs earnest money and entered into agreement to sell on 7.6.2003?OPP 2) Whether the plaintiff always remained ready and willing and is still ready and willing to perform h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions admitting the contents of the agreement to sell to be correct. Testimony of attesting witness was duly corroborated by another attesting witnesses to agreement to sell i.e. Bikram Singh and deed writer Rana Partap Singh as PW-4. Plaintiff Girdhari Lal has appeared as PW-3. The cross-examination of these witnesses were conducted at length but nothing incriminating could be brought out in favour of defendants-appellants. Both the Courts have recorded as a finding of fact that the evidence on record inspires confidence and is the result of trustworthy account submitted by the witnesses. 8. Bald statement of Gurmail Singh as DW-1 has not been taken to be sufficient evidence as against convincing overwhelming evidence led by the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Questions No.4 and 5 are not involved at all. Impugned judgments and decrees cannot be presumed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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