High Court of Punjab and HaryanaRSA/247/2023disposed of

Mukhtiar Singh (Now Deceased) Through Lrs v. Kesar Singh And Another

2024-07-25Mr. Justice Anil Kshetarpal19 pages

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"/ 1. That in order to prove plaintiff's readiness and willingness to perform his part of the agreement to sell till the date of filing of suit or thereafter and till its trial is culminated and concluded, it is submitted that respondents/plaintiffs had placed on record application Ex.P4 whereby they got themselves marked present in the office of Joint Sub-Registrar, Goraya on 10.02.2014 claiming that they were ready to get the sale deed executed on payment of remaining sale consideration. It is pertinent to mention here that in order to prove readiness and willingness to perform his part of agreement, vendee is not required to prove that he was in actual possessions of funds required for execution and registration of sale deed, but he is only required to show that he was ready and willing to perform his part of agreement.

Moreover, once agreement to sell in question was denied by executant Mukhtiar Singh or his legal heirs i.e appellants, then the respondents/plaintiffs were not required to prove that they were ready and willing to perform their part of the agreement. It is further germane to mention here that earlier, one suit was filed by the plaintiffs/respondents, which was decreed ex-parte vide judgment and decree dated 07.10.2015, wherein, the respondents/plaintiffs had deposited the remaining sale consideration in the court to get executed the sale deed in their favour in accordance with law. Even, the said fact was not disputed by the appellants.

Learned Additional District Judge, Jalandhar. Reliance is placed on the judgment passed by the Hon'ble Supreme Court of India in case titled as "N.P. Thirugnanam Versus Dr. R Jagan Roa", [1996 (1) Civil Court Cases 27 (SC)]and M/s J.P. Builders & Another Versus Ramdas Rao and Another", [2011 (1) Apex Court Judgments 307 (SC)].

2. That it is germane to mention here that the defendant/appellants have taken specific stand that the agreement to sell is forged and fabricated. In other words, appellants have challenged the validity of agreement to sell dated 10.04.2013 (Ex. P2). In this regard it is submitted that as per Order 6 Rule 4 of Civil Procedure Code, 1908, when any document has been challenged on the ground of fraud etc. then it is the burden duty of the person to plead the manner of fraud in the pleadings as per the requirement of Order 6 Rule 4 of CPC and to prove the same by way of cogent evidence in trial of the case. Mere words stated in the plaint that the document is a fraudulent document is not sufficient to hold the document as a fraudulent. Presumption of genuineness is attached to a written document.

Although, it is a rebuttable presumption, but it is for a party to rebut this presumption. The plea of fraud and deception if any can very well be explained by the person with whom it has been played. To prove any kind of forgery in the present case, the defendant/appellants have not examined any handwriting expert. Therefore, the stand taken by the defendant/appellants remain confined to his oral averments only and same has not been substantiated by him by way of leading cogent and convincing piece of evidence.

3. That it is submitted that the thumb impressions of deceased Mukhtiar Singh on agreement to sell were admitted by legal heirs/appellants. Once those thumb impressions of Mukhtiar Singh on agreement to sell Ex. P2 and receipt Ex.P3 were admitted, onus was upon appellants to prove that no such agreement to sell was ever executed by deceased Mukhtiar Singh, but they failed to prove the same. Appellants who are legal heirs of Mukhtiar Singh, did not examine any witness to prove that no such agreement to sell was executed by deceased Mukhtiar Singh. In case, agreement to sell is a forged and fabricated document, then the thumb impression of deceased Mukhtiar Singh could not have obtained on so many papers/documents, as mere execution of agreement to sell was sufficient. Similarly, thumb impressions of deceased Mukhtiar Singh were on six places on receipt Ex.P3. Mukhtiar Singh had also put his thumb impression and affixed his photograph in register of deed writer, copies of which are Ex. P6 & Ex. P7 on record. Moreover,

defendant Mukhtiar Singh did not bother to contest the suit and earlier the suit filed by the respondents/plaintiffs was decreed exparte. Reliance is placed upon "Hodil Singh (deceased) represented by Legal Heirs Versus Bhagwant Singh (Deceased) represented by Legal Heirs", [2010 (2) CCC 608], wherein it was held that there is a general tendency amongst the members of society to dispute execution of agreement after executing an agreement to sell to absolve themselves from liability to execute sale deed in consequence of said agreement.

4. That the appellants have alleged that the deceased Mukhtiar Singh was a drug addict and respondents/plaintiffs had obtained his thumb impressions on blank stamp papers, taking advantage of his ill-health due to intoxication and reliance has been placed upon the judgment dated 13.12.2012 passed by the Learned Special Court, Jalandhar, whereby,Mukhtiar Singh was held guilty for keeping in his possession 25 grams of Heorin and was sentenced there under. In this regard it is submitted that mere producing on record one judgment would not show that Mukhtiar Singh was habitual of taking drugs as claimed by appellants/defendants. From the facts and circumstances narrated in said judgment Ex. D1, at the most it can be said that Mukhtiar Singh was once apprehended by the police when he was found in possession of 25 grams of Heorin.

Apart from this, respondents have duly proved on record through oral as well as documentary evidence that the deceased Mukhtiar Singh being owner in possession of the suit property has executed an agreement to sell dated 10.04.2013 (Ex. P2) in favour of plaintiff in the presence of marginal witnesses and in their presence, defendant had received a sum of Rs. 19,50,000/- as earnest money from the plaintiff but failed to execute the registered sale deed.

5. That the appellants had further alleged that PW-2 Charanji Lal was not an attesting witness to agreement to sell and receipt and he is a close relative of respondent no.2/Harbans Lal being his nephew and his signatures were obtained on agreement to sell, receipt and register of deed writer, subsequently to prove the documents. In this regard it is submitted that upon perusal of the agreement to sell, receipt and register of deed writer will show that signatures of marginal witness Charanjit Lal were obtained at relevant places on those documents and it does not mean that his signatures were obtained subsequently to show him as a witness. Mere fact that Charanji Lal is close relative of respondent no.2/ Harbans Lal does not mean that he was not a witness to the agreement to sell. Rather such a person is kept as marginal witness, who can support the case of Vendee in case a Civil suit is filed in the Court so that he can depose

in the Court. As far as remaining marginal witness on agreement to sell and receipt are concerned, they were from the Village of deceased Mukhtiar Singh.

6. That the appellants have got examined Kulwinder Singh as DW-1, who claimed that he was known as Kulwant Singh and his thumb impressions had been obtained on agreement to sell and receipt along with those of deceased Mukhtiar Singh. However, he could not produce any document on record to show that he was also known as Kulwant Singh as claimed by him in his affidavit Ex. DW1/A. It is pertinent to mention here that marginal witness Kulwant Singh was from Village Bansian whereas DW-1 Kulwinder Singh is belonging to Village Bir Bansian. It was admitted by DW1 Kulwinder Singh in his cross examination that Village Bir Bansian and Village Bansian are two separate Villages though said villages are quite close to each other.

Therefore, appellants had failed to disprove the evidence adduced by the respondents regarding execution of agreement to sell in question. Moreover, in case agreement to sell in question and receipt had been forged and fabricated documents as claimed by the appellants, they must have filed a complaint against respondents for fabricating the documents, but admittedly neither deceased Mukhtiar Singh himself nor his legal heirs i.e appellant/defendants, filed any complaint against respondents/plaintiffs for fabrication of agreement to sell in question.

7. That it is submitted that the respondents have paid the entire sale consideration i.e Rs. 19,50,000/- as earnest money to defendant/Mukhtiar Singh and the balance sale consideration was paid in the Learned Court for getting the sale deed executed through Court. Apart from this, respondents/plaintiffs have proved on record that the deceased Mukhtiar Singh being owner in possession of the suit property has executed an agreement to sell dated 10.04.2013 (Ex. P2) in favour of plaintiff in the presence of marginal witnesses and in their presence, defendant had received a sum of Rs. 19,50,000/- as earnest money from the plaintiff but failed to execute the registered sale deed. Thus, on the basis of afore-mentioned submissions the present regular second appeal filed by the appellants being devoid of merits, may kindly be dismissed with exemplary cost. ( %)28 - $+ )!94:%* 14* +$!*6 *6 2)!%# ,$4% 2 !1! %*-%9 *6 1)!*- & * 1 %"

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