Avtar Singh v. Jaspal Singh (SC) BS902686

Avtar Singh v. Jaspal Singh (SC) BS902686 SUPREME COURT OF INDIA

Before:-Arun Mishra and Mohan M. Shantanagoudar, JJ.

Civil Appeal No.12455 of 2017 (Arising out of SLP(C) No. 8950 of 2011). D/d. 6.9.2017.

Avtar Singh - Appellants

Versus

Jaspal Singh - Respondents

For the Petitioners SLP(C)8950, WP(C)1018 :- Sudarshan Singh Rawat, S. Ganesh, Sr. Adv., Mayank Jain, Madhur Jain, Parmatma Singh For Sunil Kumar Jain, Advocates.

For the Respondents/UOI :- Ms. V. Mohana, Sr. Adv., T.A. Khan, Rajat Nair, Mukesh Kumar Maroria, Vikas Mahajan, Vishal Mahajan, Vinod Sharma For Bhaskar Y. Kulkarni, Jasbir Singh Malik, For Ms. Usha Nandini V., Tarjit Singh, Surender Deswal, Rajat Rathee, Neeraj Kumar Sharma, Advocates.

Constitution of India, 1950 Article 133 Decree of suit for specific performance - Challenged - Party factionalism and witnesses were on side of plaintiff - Thus, findings recorded by Courts below with respect to bonafide nature of agreement set aside - Loan taken by defendant for redemption of mortgage - Agreements executed as co-lateral security for loan which had been advanced - Thus, no doubt money advanced to defendant - Apparent from other circumstances also that plaintiff has not come to Court bonafidely - Even date of serving notice regarding specific performance not mentioned in plaint, as also date on which plaintiff kept himself present before Sub-Registrar - Plaintiff failed to plead whether he had intimated to defendant with respect to date on which he was required to be present before Sub-Registrar for execution of Sale deed - Thus, way suit has been filed, it does not inspire confidence with respect to bonafide nature of transaction of sale - Therefore, appropriate to refund money which paid along with interest @6% per annum - Hence, judgment and decree modified - Hence, appeal partly allowed.

[Paras 12 to 14]

ORDER

Heard learned counsel for the parties.

2. Leave granted.

3. The defendant-appellant has come up in appeal, aggrieved by the judgment and decree passed by the trial court and affirmed by the First Appellate Court as well as the High Court, decreeing the suit for specific performance.

4. The plaintiff-respondent filed a suit for mandatory injunction, directing the defendant to execute the sale deed and alternatively, a prayer was made to direct for handing over of possession by way of specific performance. Initially the court fee for specific performance was not paid. Later on it appears that on an objection being raised by the defendant with respect to the non-payment of the court fee, the same was deposited. Be that as it may.

5. It was averred in the plaint that the plaintiff-Jaspal Singh entered into an agreement for sale, with defendant-Avtar Singh on 26.6.1998, for a sum of L 3,10,000/- (Rupees Three Lakhs Ten Thousand only), with respect to his share out of joint khata along with interest. An agreement was entered into only to sell the extent of land belonging to the share of the defendant in an area measuring 22 kanals 4 marlas. It was mentioned that possession had been handed over to the plaintiff. It was also mentioned in the agreement that as the land was mortgaged with the bank, it was necessary to make the payment in the bank. After redeeming the mortgage from the bank, a sale deed was to be executed by 10.7.1998. The agreement was entered into for sale of land at L 1,50,000/- (Rupees One Lakh Fifty Thousand only) per acre. The total area was 2 acres 6 kanals 4 marlas.

6. Yet another agreement had been entered into on 24.7.1998 for sale of the land situated in close vicinity of the aforesaid land, just after one month from the earlier agreement, with respect to the land measuring 4 kanal 11 marlas. A sum of Rs,16,000/- was paid by way of earnest money after entering into the agreement to sell. The sale deed was to be executed by 21.8.1998. Again factum of mortgage of land with bank was mentioned and that the land was required to be redeemed from the bank before execution of the sale deed. It was further averred in the plaint that the defendant did not appear before the Sub-Registrar for execution of sale deed and the plaintiff got marked his presence with the Sub-Registrar. However, date was not disclosed in the plaint. The plaintiff was having balance consideration with him and was still ready to perform his part of contract. A legal notice by UPC-envelope was served. However, it's date was not disclosed in the plaint.

7. In the written statement filed by the defendant it was contended that the suit was not maintainable and the plaintiff had filed a false and frivolous suit, the agreement was not enforceable as the real owner of the land, namely, Swaran Singh, had challenged the decree in favour of the father of the plaintiff and the suit was still pending. It was further contended that the plaintiff was a very clever person and had been playing fraud with innocent persons like the defendant. The plaintiff was Lamberdar of the village and used to moot different schemes and used to obtain thumb impressions or signatures of innocent persons on blank papers and he might have mis-utilized the signatures. The defendant had never agreed to sell his land to the plaintiff. It was also averred that no amount had been taken as earnest money. Other facts were also denied.

8. The trial court had decreed the suit. The First Appellate Court and the High Court have affirmed the same. Hence the appeal by the defendant.

9. It was urged by the learned counsel for the appellant that the bonafide nature of the transaction has not been established. It has been admitted by the two attesting witnesses of the agreement that they had signed a large number of such agreements in favour of the plaintiff and both of them are related to the plaintiff. The way in which the plaintiff had taken advantage of being Lamberdar of the village, he might have obtained signatures of the appellant which might have been misutilised by the respondent. At the most it could be a transaction of loan and agreement was executed as collateral security. The genuineness of agreement has not been established by examining the independent witnesses. The document was a forgery. The expert examining respondent has compared the signatures by taking the impression from the photocopies of the agreements. Thus, the report of handwriting expert produced by the respondent was of no evidentiary value. To take home the submissions, learned counsel has taken us to the statement of material witnesses, including that of the plaintiff.

10. On the other hand, learned counsel appearing for the respondent-plaintiff has supported the concurrent findings recorded by the three Court and urged that the amount paid as earnest money, had been paid for the purpose of fulfilling the legal necessity, in order to pay the amount to the bank where the land had been mortgaged. The two attesting witnesses were also related to the defendant. Expert had been examined on behalf of the plaintiff, so as to prove the signatures of the defendant on the agreements. Thus, no case for interference in the findings of facts recorded by the courts below is made out.

11. We have gone through the statements of the attesting witnesses at length. Signatures of Gulab Singh-PW1 are there on both the agreements. He has stated that "I could not deny that I have made signatures on 10-20 agreements which had been executed in favour of the parties by the plaintiff". He has also admitted that he is the relative of the plaintiff. The witness has admitted that there was party factionalism and that he was on the side of Jaspal Singh. When we consider the statement of other attesting witnesses, namely, Ranjit Singh-PW2, he could not deny that he had signed 24-30 agreements, under which loan was advanced by the plaintiff. He was unable to say how many times Jaspal Singh had given money to Avtar Singh or got prepared the agreements. He was unable to tell names of 15-20 persons with whom agreements were entered into by Jaspal Singh and signatures were obtained thereupon. He had stated that Jaspal Singh very often used to get such agreements prepared. When we consider the statement of the plaintiff-Jaspal Singh, PW-9, that does not inspire confidence. He admitted that both the attesting witnesses are his relatives; but no other independent person was examined as witness so as to support the bonafide nature of agreement for sale, though witnesses were present. The witness had also stated that he had issued legal notice to Gurdayal son of Baxi through Chauhan Advocate, as he had entered into an agreement with him for sale of 2-3 acres or might be 4 acres of land. He further submitted that he had not filed any suit against him because a compromise had been entered into and his money had been returned. However, said compromise was not reduced in writing. He could not remember whether the agreement was entered into in the year 1998-99.

12. It is apparent from the aforesaid deposition of the plaintiff, as well as that of the attesting witnesses, that it was very usual for the plaintiff to enter into such agreements. He entered into a large number of agreements under which loans had been advanced. Both related witnesses had been examined and they were regularly signing such agreements entered into by the plaintiff. There was party factionalism and the witnesses were on the side of plaintiff. Thus, the findings recorded by the courts below with respect to the bonafide nature of the agreement is found to be clearly perverse, which could not have been arrived at prudently in reasonable manner. Thus, the findings are liable to be set aside.

13. It appears that it was a transaction for loan only. Man may lie but circumstances do not, is the cardinal principle of evolution of evidence. The circumstances unerringly point out that the defendant required money for getting the land redeemed which was mortgaged with bank and that is why within a period of one month, two agreements had been entered into, which had a mention that the land was mortgaged with the bank and was required to be redeemed. It appears that loan had been taken by the defendant for redemption of mortgage. The agreements had been executed as co-lateral security for the loan which had been advanced. There was nothing to doubt that money had been advanced to the defendant.

14. It is apparent from other circumstances also that plaintiff has not come to the Court bonafidely. Initially, he had filed a suit only for a mandatory injunction to direct the defendant to execute the sale deed without payment of the court fee. He avoided the payment of court fee as it was ultimately found that the suit was not maintainable in the form it was filed. Later on, court fee had been paid. Be that as it may. The fact is also apparent that even the date of serving notice regarding specific performance has not been mentioned in the plaint, as also the date on which the plaintiff kept himself present before the Sub-Registrar. The plaintiff has not pleaded whether he had intimated to the defendant with respect to the date on which he was required to be present before the Sub-Registrar for the execution of the sale deed. Thus, in the way the suit has been filed, it does not inspire confidence with respect to the bonafide nature of transaction of sale. However, money had been advanced. Therefore, it would be appropriate to refund the money which has been paid, i.e., L 3,26,000/- (Rupees Three Lakhs Twenty Six Thousand only), along with an interest @6% per annum. Let the money be refunded within three months from today.

15. The judgment and decree passed by the courts below are accordingly modified. The appeal is allowed to the above extent. Pending application, if any, stands disposed of.

16. No costs.

Writ Petition (C) No.1018 of 2014.

Ram Kishan & Anr. - Appellants.

Versus

Union of India & Ors. - Respondents.

ORDER

17. Undoubtedly a frivolous petition has been filed for declaring the provisions Section 49(c) of the Registration Act, 1908, as ultravires to Articles 14, 21 and 300A, by invoking Article 32 of the Constitution of India.

18. It is not disputed that the earlier suit for specific performance was filed by the Respondent Nos.2-4, namely, Bijender Mann @ Vijender Mann, Dharam Vir Mann and Jaibir Mann. The suit was decreed in their favour vide judgment and decree passed by the trial court on 12.5.2010. The appeal preferred by the petitioner was dismissed by the First Appellate Court on 19.10.2011. Thereafter, he questioned unsuccessfully the judgment and decree passed by the High Court by way of filing second appeal, which was dismissed by the High Court on 11.9.2013. The matter did not rest at that. A special leave petition was preferred in this Court, which was also dismissed by this Court on 5.12.2013. Thereafter, a review petition filed against the said special leave petition was also dismissed. In view of that, the judgment and decree passed by the courts below attained finality. As a misadventure the present writ petition has been filed, so as to question the validity of the aforesaid provisions.

19. At the outset, we had put a specific query to the learned senior counsel appearing for the petitioner, that in view of the fact that the judgment and decree which had attained finality upto this Court, whether that can be reopened by way of filing a writ petition under Article 32 of the Constitution of India, by way of questioning the validity of the aforesaid provisions. Learned counsel was unable to show any decision to us and rightly so, as it is a trite law that once a judgment and decree attains finality, it cannot be reopened and it operates as a res-judicata. It was too late in the day for the petitioner to question the validity of the aforesaid provisions, so as to get rid of judgment and decree.

20. Thus, the instant petition filed by the petitioner is not maintainable as it has been filed so as to get rid of the judgment and decree passed in the civil suit which has attained finality upto this Court. The aforesaid question does not require adjudication in this matter in the aforesaid view of the matter. It amounts to a gross abuse of the process of law and interference in administration of justice. As such, we deem it appropriate to dismiss this writ petition with exemplary cost. The cost is quantified as L 1,00,000/- (Rupees One Lakh only) and same be deposited with the Supreme Court Bar Association, within six weeks from today.

21. Pending application, if any, stands disposed of.