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2017 Supreme(P&H) 1271
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
ANIL KSHETARPAL, J.
Puran Chand - Appellant
Versus
Ram Kumar - Respondent
RSA No.3744 of 2017 (O&M)
Decided On : 25-07-2017
For the Appellant :Mr. Hamid Hussain, Advocate.
The validity of an agreement to sell and the enforceability of unregistered documents under specific performance laws.
Headnote:
Condonation of Delay - Limitation Act - Section 5 - [RSA No.3744 of 2017] - The court condoned the delay of 43 days in filing the appeal under Section 5 of the Limitation Act. The case involved a suit for possession by way of specific performance of an agreement to sell. The defendant denied the execution of the agreement and claimed it was unenforceable due to being unregistered. The trial court decreed the suit, and the first Appellate Court upheld the decision. The appellant raised points regarding the necessity of the agreement, its fabrication, and the thumb impressions. The court found that the agreement was duly thumb marked and not fabricated, and the thumb impressions were not in dispute. The court dismissed the appeal, finding no ground for interference.
Fact of the Case:
The case involved a suit for possession by way of specific performance of an agreement to sell a land parcel. The defendant denied the execution of the agreement and claimed it was unenforceable due to being unregistered.
Finding of the Court:
The trial court decreed the suit, and the first Appellate Court upheld the decision. The court dismissed the appeal, finding no ground for interference.
Issues: The issues revolved around the necessity of the agreement, its fabrication, and the validity of the thumb impressions.
Ratio Decidendi: The court found that the agreement was duly thumb marked and not fabricated, and the thumb impressions were not in dispute.
Final Decision: The court dismissed the appeal, finding no ground for interference.
ANIL KSHETARPAL, J.
CM 9169-C of 2017
Allowed as prayed for.
CM 9170-C of 2017
This is an application under Section 5 of the Limitation Act for condonation of delay of 43 days' in filing the present appeal. The application is supported by an affidavit.
For the reasons stated in the application, delay of 43 days' in filing the present appeal is condoned.
RSA No.3744 of 2017
Defendant is in second appeal against the concurrent finding of fact of arrived at by the Courts below.
1. Plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 18.06.2007 with respect to the land measuring 11 Canals 03 Marlas situated in Village Rampur Tehsil and District Panchkula. It was the case of the plaintiff that out of total sale consideration of Rs. 9,75,625/-, defendant received a sum of Rs.7,50,000/- as earnest money. As per the agreement to sell, target date for execution and registration of Sale Deed was 15.06.2008. Since 15.06.2008 was holiday, plaintiff attended the office of Sub Registrar on 16.06.2008. However the defendant did not turn up. Plaintiff got his presence marked. Plaintiff filed the suit on 18.08.2009.
2. Defendant appeared and took a ground that the agreement to sell is unregistered document, therefore not enforceable. Defendant denied receipt of earnest money. He even denied the execution of the agreement to sell. He claimed that he was an aged and illiterate person. It was further claimed that defendant used to purchase cloth for his family from the shop of plaintiff and enjoyed cordial and friendly relations. Plaintiff used to obtain thumb impressions in his diary and on some blank papers from time to time. It was further stated that plaintiff thereafter stopped his business of cloth and started running shop of commission agent. Money transaction between the plaintiff and defendant continued. Defendant even used to sell the crop through the shop of plaintiff.
3. Learned trial Court after appreciating the evidence available on the file, decreed the suit. The trial Court found that the agreement to sell is proved as Pardeep Kumar attesting witness has been examined, apart from plaintiff himself appearing in the witness box. Appeal filed before the first Appellate Court was also ordered to be dismissed after re-appreciating the evidence.
4. Learned counsel for the appellant has submitted the following points: –
(i) He had taken a loan of Rs.1,92,000/- on the land and total repayment due was Rs.3,00,000/-. Therefore, there was no necessity of entering into an agreement to sell for Rs.9,75,625/-.
(ii) Agreement to sell is the result of fabrication.
(iii) Once the plaintiff had denied execution of agreement to sell, it was the duty of the plaintiff to examine the Handwriting and Fingerprint Expert to compare the thumb impression of the defendant on the agreement to sell.
(iv) Stamp Vendor from whom the stamp paper for execution of the agreement to sell was purchased has stated that signatures of the defendant are in English whereas defendant is an illiterate person.
I have considered the submissions of learned counsel for the appellant.
5. Decision to sell the property is personal to an individual. Whether one person would like to sell the property when he is to pay only Rs.3,00,000/- or not also depends on various circumstances. Here is a case where agreement to sell is in writing. It is duly thumb marked. Thumb mark is on the revenue stamp. It is the case of the defendant himself that the property was under a charge and loan was to be repaid. Therefore, there is no force in the first submission of learned counsel for the appellant.
6. Learned counsel for the appellant has further submitted that the agreement to sell is the result of fabrication. He submits that blank papers have been converted into an agreement to sell. I have examined the photocopy of the agreement to sell produced by learned counsel for the appellant. Agreement to sell is on a stamp paper. The stamp paper has been purchase
