An Agreement to Sell found to be fabricated due to suspicious circumstances such as signatures on blank papers cannot be enforced, and specific performance requires the plaintiff to prove both financial readiness and willingness, while failing to challenge all decrees arising from a consolidated dispute renders an appeal non-maintainable.

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NIDHI GUPTA, J.

Present second appeal has been filed by the plaintiff against the judgment of reversal dated 20.09.2012 passed by Additional District Judge, Karnal whereby Civil Appeal No.209 of 2010 filed by the plaintiff against the judgment and decree dated 11.6.2010 passed by the learned trial court whereby suit of the appellant was only partly decreed, has been dismissed.

Brief facts of the case are that the appellant/plaintiff had filed suit for specific performance for Agreement to Sell dated 07.05.2005 along with consequential relief of permanent injunction. It was the pleaded case of the appellant that the parties had entered into an Agreement to Sell that defendant was owner of the suit land as described in the plaint. He had entered into an Agreement to Sell dated 07.05.2005 in favour of the plaintiff for total sale consideration of Rs.4,25,000/-; of which the defendant had received Rs.1 lakh by way of earnest money. The target date for execution of Sale Deed was set for 20.11.2005. Actual physical possession of the suit land was agreed to be delivered at the time of registration of Sale Deed. It was pleaded that as 20.11.2005 was a Holiday being Sunday, the plaintiff had duly presented himself before the Sub-Registrar on 21.11.2005 and had got his affidavit of readiness and willingness executed. He had waited for the defendant till 5 pm but the defendant did not turn up to perform the contract. Thereafter, the plaintiff had served legal notice upon the defendant however to no avail. As such, the present suit was filed by the plaintiff on 12.12.2005.

Upon appraisal of pleadings and oral & documentary evidence adduced by the parties, the learned trial Court vide judgment and decree dated 11.06.2010 had partly decreed the suit of the plaintiff as follows:-

“23. As a sequel to above findings, on several issues wherein, plaintiff is not found entitled to specific performance of the agreement, rather is found entitled to money decree of Rs.1.50 lacs with interest, suit is hereby partly decreed by denying relief of specific performance to the plaintiff and granting a money decree of Rs.1.50 lacs with 6% interest in his favour. Consequently, suit is hereby partly decreed for recovery of Rs.1.50 lacs alongwith interest @ 6% p.a. from the date of payment of earnest money till realisation of the amount and costs of the suit…”

Against the said judgment and decree dated 11.06.2010, the plaintiff had preferred Civil Appeal No.209 of 2010 seeking specific performance of the Agreement to Sell and not just mere refund of earnest money. The defendant had also preferred Civil Appeal No.149 of 2010 against the judgment and decree of the trial Court directing refund of earnest money. Vide the impugned judgment and decree dated 20.09.2012 passed by the Additional District Judge, Karnal, the Civil Appeal No.209 of 2010 filed by the plaintiff has been dismissed, against which the present Regular Second Appeal has been filed. Civil Appeal No.149 of 2010 filed by the defendant was allowed by the judgment dated 20.09.2012 thereby setting aside judgment passed by the trial Court and suit of the plaintiff stood dismissed. Two decrees were passed. However, no Regular Second Appeal has been preferred by the appellants/plaintiff against the judgment and decree dated 20.09.2012 passed by the first Appellate Court in Civil Appeal No.149 of 2010.

It is inter alia submitted by learned counsel for the appellants that the learned First Appellate Court was in error in non-suiting the appellants as the Agreement in question was duly proved on record. It is submitted that the appellants had examined Gurbax Singh, Attesting Witness as PW2; Avtar Singh, second Attesting Witness as PW3; Stamp Vendor from whom the defendant had purchased stamp paper, as PW4; Scribe of the Agreement as PW6 and himself as PW1. Thus, the Agreement in question was duly proved on record. However, the First Appellate Court has misread the evidence on record