The validity of an agreement to sell is determined by credible testimonies supporting its execution; familial relationships do not alone discredit evidence in property transactions.

ORAL JUDGMENT

Mr. Harkesh Manuja, J.

In the present appeal, challenge has been laid to the judgments and decrees dated 23.09.2019 and 19.07.2022 passed by the Courts below whereby, a suit for possession by way of specific performance besides seeking declaration as well as permanent injunction, filed at the instance of respondent No.1-plaintiff has been decreed.

2. Briefly stating, based on an agreement to sell dated 27.09.2012, respondent No.1-plaintiff filed a suit for possession by way of specific performance regarding land measuring 2 Kanals and 16 marlas, situated in the revenue estate of village Fazilpur Badli, Tehsil Farrukh Nagar, District Gurugram. It was further prayed that appellant-defendant No.2 be restrained from alienating the suit property besides seeking declaration qua sale deed dated 30.10.2012 executed by respondent No.2 in favour of appellant. As per the plaint, the total sale consideration was Rs.15,00,000/-; whereas Rs.7,00,000/- was paid as earnest money and the target date was fixed as 27.03.2013. It was also pleaded that respondent No.2-defendant No.1 sold the suit property in the name of appellant-defendant No.2 vide registered sale deed dated 31.10.2012 so as to defeat the rights of respondent No.1-plaintiff thereby, compelling him to file present suit impugning the validity of sale deed dated 31.10.2012 as well.

3. Upon notice, respondent No.2-defendant No.1 appeared and denied the execution of agreement to sell dated 27.09.2012 while stating it to be a false, frivolous and fabricated document. It was further pleaded that agreement to sell dated 31.07.2012 was executed by respondent No.2-defendant No.1 in favour of appellant-defendant No.2 and in pursuance thereof, a sale deed dated 31.10.2012 was executed between them. Similarly appellant-defendant No.2 filed separate written statement while claiming herself to be the owner-in-possession of suit property by virtue of sale deed dated 31.10.2012 based on agreement to sell dated 31.07.2012.

4. The trial Court vide judgment and decree dated 23.09.2016 decreed the suit filed by respondent No.1-plaintiff. Aggrieved thereof, appellant-defendant No.2 filed First Appeal, however, the same was dismissed by the Appellate Court vide judgment and decree dated 19.07.2022.

5. Impugning the aforementioned judgments and decrees passed by the Courts below, learned counsel for the appellant submits that in the present case, agreement to sell dated 27.09.2012 was an act of collusion between respondent No.1-plaintiff and respondent No.2- defendant No.1 as they were both closely related to each other. He also submits that once the valid execution of agreement to sell dated 31.07.2012 in favour of appellant-defendant No.2 was admitted by respondent No.2-defendant No.1, there was no occasion to have initiated criminal proceedings against him. To add, he also points out that against payment of Rs.7,00,000/- as earnest money towards total sale consideration of Rs.14,00,000/-, non-delivery of possession in favour of vendee itself created doubts about the valid execution of agreement dated 27.09.2012. Learned counsel further points out that the mothers of both the respondents are real sisters. He also submits that one of the marginal witness to the agreement dated 27.09.2012 was Chander Bhan (PW-3) who happened to be real brother of respondent No.2-defendant No.1. Learned counsel further submits that present suit was filed on 19.12.2012 and all through till 07.09.2013, respondent No.2-defendant No.1 continued to appear in the trial, however, the moment evidence was over, he discontinued to appear in the suit. He also points ou