IMPORTANT POINT
Suit for Specific Performance of Agreement to Sell – There is distinction between burden of proof and onus of proof – Onus of proof has greater force when issue is which party is to begin forwarding evidence in support of a proposition.

JUDGMENT :

S.V.N. BHATTI, J.

1. This Civil Appeal is at the instance of the Defendant in OS. 91-T/04 of 2000 on the file of the Junior Civil Judge’s Court, Patiala. The appellant challenges the decree and the judgment dated 03.09.2012 in RSA No. 1637 of 2009, High Court of Punjab and Haryana. Through the impugned judgment, the concurrent findings of the Trial Court and the Appellate Court have been reversed.

2. The Respondent nos. 1 and 2 filed Suit No. 91-T/04 of 18.11.2000 for specific performance of the agreement of sale dated 12.02.1999 (‘Suit Agreement’), said to have been executed by the appellant. The respondents have since deceased, and are represented through their legal representatives. The Suit Agreement is for a consideration of Rs. 70,000/-, and it is recited that the appellant has received Rs. 55,000/- from the Respondents as part consideration and put them in possession of the house bearing No. B-35/229 (Old Number 522) at Jattanwala Chauntara, Sirhindi Bazar, Patiala (‘Suit Premises’). The deadline for obtaining the registered sale deed has been set out as 20.10.2000. The respondent, to explain the continuous possession of the appellant in the Suit Premises, refers to a contemporaneous rent arrangement under which the appellant is continuing as a tenant of the Suit Premises at a monthly rent of Rs. 700/-. The respondent, on 20.10.2000, alleges to have been present at the sub-registrar’s office for obtaining a registered sale deed from the appellant. The appellant did not turn up, and it is stated that the registration of the suit property pursuant to the Suit Agreement could not be completed. On 21.10.2000, the respondent issued a legal notice, calling upon the appellant to receive the balance sale consideration and execute a registered sale deed. On 18.11.2000, the instant suit was filed for specific performance and possession of the Suit Agreement and the Suit Premises.

3. The appellant alleges that the respondents committed fraud and misrepresentation. The case of the appellant is that the appellant borrowed a sum of Rs. 50,000/- from the first respondent, and the first respondent obtained signatures on blank stamp papers. The amount was borrowed at 2.25% interest per month. The signatures have been misused, and there was no agreement between the parties to sell or purchase the Suit Premises. The appellant claims to have repaid the loan on 25.07.2000. Having regard to the known relationship between the parties, the documents could not have been taken back by the appellant on the same date. Admittedly, the appellant, for avocation, does typing in the District Court premises, and the first respondent is a practising advocate in Patiala.

4. Further, the case of the appellant is that the respondent misused the blank signed stamp papers, though the appellant cleared the loan amount together with interest. There was no agreement to sell or purchase between the parties. The demand for specific performance is surreal, and the Suit Agreement has been fabricated to file a suit for specific performance.

5. Respondent examined himself as PW1 and marked exhibits P1 to P9. It is contextual to observe that no other person is examined in discharging the onus fastened on the respondent by the pleadings of the case, and the issues for trial framed by the Trial Court.

6. The appellant examined himself as DW1 and also DW2 to DW5, and marked exhibits D1 to D10. The thrust of the appellant’s evidence as part of discharging the burden fastened on him is to bring home the alleged fraud and misrepresentation; the signed stamp papers have been misused; and, without there being an agreement, which is sine qua non, for the enforcement of rights under the alleged agreement, the suit has been filed.

7. The following issues have been tried by the Trial Court:

(i) Whether the defendant executed agreement of sale dated 12.02.1999?

(ii) Whether the plaintiffs have always been ready and willing to perform their part of agreement?

(iii) Whether the suit