HON'BLE MR. JUSTICE MAHESH GROVER
This is defendant's second appeal against the judgment of the learned Trial Court dated 2.1.2008 and that of the First Appellate Court dated 12.3.2008.
The plaintiff-respondent filed a suit for specific performance of the agreement to sell dated 17.3.1999 by which it was agreed by the appellant to sell the suit property for a sale consideration of Rs. 1,50,000/- out of which Rs.1,00,000/- was paid as earnest money. The sale deed was to be executed and registered on 15.6.2000. Since the sale did not fructify, the plaintiff-respondent filed the suit. The appellant who contested the suit pleaded fraud and contended that on the pretext of getting some documents regarding loan prepared respondent had fabricated the agreement to sell. It is pleaded that RSA No. 4366 of 2008(O&M) 2
plaintiff is a commission agent where the appellant used to sell his crops and this relationship has been abused.
Both the parties went to trial on the following issues:-
1. Whether defendant entered executed an agreement to sell land in suit on 17.3.1999 in favour of the plaintiff?OPP.
2. Whether the plaintiff remained always ready and willing and is still ready and willing to perform his part of the contract?OPP.
3. Whether the plaintiff is entitled for possession by way of specific performance of contract dated 17.3.1999 as prayed for?OPP.
4. Whether the present suit is not maintainable?OPD.
5. Whether the plaintiff has no locus standi to file the present suit?OPD.
6. Whether alleged agreement is forged, fabricated and ficititious document and is without consideration?OPD.
7. Relief.
During the course of proceedings, plaintiff-respondent gave up his plea for possession of property by way of specific performance and limited his prayer to an alternative relief under Section 20 in terms of the monetary compensation.
Both the Courts below accepted the plea and decreed the suit as prayed for by the plaintiff-respondent. The Appellate Court held as under:- "The learned Lower Court has rightly upheld the execution of the agreement to sell by the appellant Kala Singh and at the option of the plaintiff instead of passing a decree for RSA No. 4366 of 2008(O&M) 3 specific performance of the agreement to sell Ex.P1, passed a money decree for the recovery of Rs.1,00,000/- with costs and with interest @ 9% per annum with effect from the date of agreement till the date of decree and future interest @ 6% per annum with effect from the date of decree till realisation which is a fair decision. There is no illegality in the findings recorded by the learned Lower Court on different issues and thus, the same are upheld in appeal. Consequently, finding no merit in the appeal filed by the appellant-defendant Kala singh, the same is ordered to be dismissed with costs." Learned counsel for the appellant has contended that there is no agreement to sell and it was a result of fraud. I have heard learned counsel for the appellant and have perused the impugned judgments.
A perusal of the impugned judgements shows that the plea of fraud as raised by the learned counsel for the appellant is totally unsubstantiated. It is settled principle of law that a person who pleads fraud has to lead cogent evidence in this regard. On the other hand, respondent has proved the agreement to sell in accordance with law by producing the scribe and attesting witnesses. The respondent also proved the passing of consideration of Rs.1,00,000/-.
In this view of the matter, both the Courts were right in returning a consistent and concurrent finding regarding the validity of the agreement to sell. The plaintiff-respondent limited his prayer to the alternative relief and consequently the same was accepted. No fault can, therefore, be found with the findings recorded by both the Courts below. RSA No. 4366 of 2008(O&M) 4
Moreover, the appeal is also barred by delay of 67 days in filing. No substantial question of law has been shown to have arisen in the present appeal and the same being devoid of any merit is hereby dismissed.
