The burden of proving the execution of an agreement to sell rests solely on the plaintiff. Failure to examine the scribe or marginal witnesses, combined with reliance on uncorroborated expert opinion, is insufficient to prove the document's execution, as the plaintiff must succeed on the strength of their own evidence.

JUDGMENT :

VIRINDER AGGARWAL, J.

1. The present Regular Second Appeal (hereinafter referred to as “RSA”) is directed against the judgment and decree dated 08.04.1999 passed by the learned Additional District Judge, Gurugram, whereby the appeal preferred by the defendant–respondent was allowed and the judgment and decree dated 31.05.1995 passed by the learned Senior Sub Judge, Gurugram was set aside.

2. Briefly stated, the plaintiff instituted a suit for specific performance of an agreement to sell dated 05.10.1988, allegedly executed by defendant No.1 in favour of the plaintiff in respect of the suit land for a total sale consideration of Rs. 2,00,000/-. It was pleaded that an amount of Rs.20,000/- was paid as earnest money at the time of execution of the said agreement, and the sale deed was agreed to be executed and registered on 10.03.1989.

2.1 It was further averred that defendant No.1, with mala fide intent, subsequently executed a lease deed for a period of 60 years in respect of a major portion of the suit land in favour of defendant No.2 and also executed a sale deed in favour of defendant No.3 on 21.10.1988. The aforesaid transactions were challenged as fictitious, sham, and collusive, allegedly executed with the sole object of defeating the lawful rights of the plaintiff. On these averments, the suit was instituted.

3. Upon issuance of notice, defendant No.1 contested the suit by filing a written statement, denying the execution of the alleged agreement to sell as well as the receipt of any earnest money. It was specifically pleaded that the alleged agreement, if any, was false, forged, and fabricated. However, execution of the lease deed and sale deed in favour of defendants No.2 and 3 was admitted.

3.1 Defendants No.2 and 3 also contested the suit. Defendant No.3 claimed to be a bona fide purchaser for valuable consideration without notice of any alleged agreement in favour of the plaintiff. During the pendency of the suit, certain further transfers of the suit land took place, whereupon defendants No.4 to 6 were impleaded as parties being transferees pendente lite. The said defendants also filed written statements asserting themselves to be bona fide purchasers for consideration.

4. The plaintiff filed a replication, wherein the averments and objections raised in the written statements were categorically denied, while the pleadings set forth in the plaint were reaffirmed and reiterated. Upon a careful and comprehensive scrutiny of the pleadings on record, as well as the rival contentions advanced by the parties, the learned Trial Court deemed it appropriate to crystallize the issues in controversy and, for the purpose of a systematic and legally coherent adjudication, proceeded to frame the following issues for determination:–

1. Whether defendant No.1 had agreed to make sale of her land with the plaintiff vide agreement dated 5.10.88 as alleged? OPP

2. Whether the plaintiff has always been ready and willing to perform his part of contract? OPP

3. Whether the suit is not maintainable? OPD

4. Whether the plaintiff has not come court with clean hands. If so, to the effect thereof? OPD

5. Whether the plaintiff has got no cause of action to bring the suit?OPD

6. Whether the plaintiff is estopped from bringing the suit by his act and conduct as alleged? OPD

7. Whether the plaintiff has no locus standi bring the suit? OPD

8. Whether defendant No.3 is bonafide purchaser of the suit land for valuable consideration? OPD

9. Whether defendant Nos. 4 to 6 are bonafide purchasers of the land for valuable consideration as alleged by them? OPD

10. Whether th