The burden to prove that an agreement is forged lies upon the defendant. The time is not essence of the contract in a suit for specific performance. The suit may not be barred by limitation if the plaintiff has paid the entire sale consideration and obtained possession of the property, and has adduced evidence of being ready and willing to perform the agreement.

JUDGMENT

1. Appellant-defendant has filed this second appeal under Section 100 CPC, aggrieved by the judgment and decree dated 05.12.2013 passed in Civil First Appeal No.12/2009 by the Additional District Judge, Tijara, District Alwar dismissing the appeal and affirming the judgment and decree dated 29.11.2008 in Civil Suit No.38/2003 by the Civil Judge (Jr. Division), Alwar whereby and whereunder the suit for specific performance of agreement, filed by the respondent-plaintiff, has been decreed on merits in following terms:-

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2. Heard learned counsel for both parties and perused the material available record.

3. The relevant facts of the case, as culled out from the record, are that plaintiff and defendant both are real brothers and plaintiff instituted a civil suit seeking specific performance of an agreement to sell date dated 15.06.1979 executed by the defendant in respect of land bearing Khasra No.210 measuring 1 bigha situated at village Surawas, Tehsil Tijara, District Alwar against the sale consideration of Rs.4,000/-.

4. Plaintiff averred that the entire sale consideration of Rs.4,000/- was paid to the defendant and the defendant delivered the physical possession of the land in question to plaintiff. Plaintiff averred that after execution of agreement, time and again he asked to execute the sale deed but defendant deferred the matter for one or another reason, and lastly plaintiff served a legal notice dated 28.07.2003 and thereafter instituted the present civil suit.

5. Defendant submitted his written statement and contended that the agreement to sell dated 15.06.1979 is forged document, which was never executed by him. The defendant did not dispute that he is the Khatedar of the land in question bearing Khasra No.210 measuring 1 bigha and the fact that both parties are real brothers. Defendant raised an objection that the suit was barred by limitation.

6. The Trial Court, on the basis of rival pleadings of both parties, permitted both parties to adduce their evidence in respect of their respective contentions. The plaintiff produced agreement as well as produced himself as PW-1, Vijay Kumar (PW-2) the scriber of agreement and Mahendra Kumar (PW-3) the stamp vendor of agreement. In rebuttal, the defendant did not led any evidence.

7. The Trial Court, on appreciation of evidence on record, concluded that the plaintiff has proved the execution of agreement dated 15.06.1979 by his own evidence as well as by producing its scriber and the stamp vendor from whom the stamp of agreement was purchased. Since the defendant has taken a defence that the agreement is forged and prepared, therefore, placing reliance on the judgment of Hon’ble Supreme Court in case of Daulatram Vs. Yog [(2005) DNJ SC 73], it was observed that the burden to prove the agreement being forged lies upon the defendant, the trial court held that in absence of defendant’s evidence, he could not discharge his burden. Further the trial court observed that according to recital indicated in the agreement itself as well as from the evidence of plaintiff, it stands established that the plaintiff has paid entire sale consideration of Rs.4,000/- and the defendant delivered the possession of suit land to the plaintiff.

In respect of the objection as to limitation, the trial court observed that in the agreement dated 15.06.1979, no limitation has been provided and only it was indicated that the sale deed would be executed by Samvat 2037 but the time was not essence of the contract. The trial court relied upon the provision of Section 54 of the Limitation Act to held that the limitation for the p