Parminder Singh vs Gurpreet Singh

Parminder Singh ….Appellant(s)

VERSUS

Gurpreet Singh .…Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) This appeal is filed against the judgment and final

order dated 30.07.2007 passed by the High Court of

Punjab and Haryana at Chandigarh in R.S.A. No. 2039 of

2007 whereby the High Court dismissed the second

appeal filed by the appellant against the judgment and

decree dated 21.03.2007 passed by the Additional

District Judge (Fast Track Court), Amritsar in C.A. No. Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2017.07.29 13:54:03 IST Reason: FTC/10 of 2003/2006 by which the appeal filed by the

1 appellant herein was dismissed with costs affirming the

judgment and decree dated 12.08.2003 passed by the

Additional Civil Judge(Senior Division), Ajnala in Civil

Suit No. 95 of 2006.

2) We herein set out the facts, in brief, to appreciate

the issues involved in this appeal.

3) The appellant is the defendant and the respondent

is the plaintiff in the civil suit out of which this appeal

arises. The appellant and the respondent are real

brothers. The respondent is elder to the appellant.

4) The appellant (defendant) is the co-sharer of the

land to the extent of 55/118, which comes to 84 Kanals,

in the joint Khata of total land measuring 177 kanals 10

Marlas situated in Village Vachhoa, Tehsil Ajnala,

District Amritsar. The appellant entered into an

agreement on 02.07.1995 with the respondent (plaintiff)

whereby he agreed to sell his share of 55/118 of the

entire land to the respondent for a total sale

consideration of Rs.5 lakhs. The agreement, inter alia,

2 recited that out of Rs. 5 lakhs, the respondent has paid

Rs.4 lakhs in cash at the time of execution of agreement

(02.07.1995) to the respondent and has agreed to pay the

balanced amount to the appellant at the time of

registration of the sale deed. It was agreed that the sale

deed would be executed on or before 13.12.1995.

5) Since the appellant did not execute the sale deed in

favour of the respondent in terms of the agreement, the

respondent filed a civil suit against the appellant seeking

specific performance of the agreement dated 02.07.1995

in relation to the suit land. The plaint, inter alia,

contained necessary averments as required under

Section 16(c) of the Specific Relief Act, 1963 for claiming

specific performance of the agreement in question.

6) The appellant while denying the averments mainly

averred that, (i) the agreement in question is a forged

document; (ii) he had only signed on blank paper on

request from the respondent; (iii) he never intended to

sell the land to the respondent; (iv) his signature was

3 taken by the respondent on blank paper for being used in

one pending litigation in which both were parties; and (v)

since the appellant at that time was staying away from

the respondent for pursuing his studies, he sent the

blank paper, which was converted by the respondent in

the form of an agreement in question without his

knowledge. In substance, this was the defense taken by

the appellant while opposing the suit.

7) Parties adduced evidence. The Trial Court, vide

judgment/decree dated 12.08.2003 decreed the

respondent's suit. It was held that, (i) the agreement in

question is real and genuine; (ii) it bears the signature of

appellant; (iii) the appellant did not execute the sale deed

in terms of agreement; (iv) the respondent was ready and

willing to perform his part of the agreement; (v) he also

performed his part; and (vi) the appellant breached the

agreement and did not execute the sale deed in terms of

agreement.

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8) The appellant (defendant) filed first appeal before

the Additional District Judge, Amritsar being C.A.

No.FTC/10 of 2003/2006. The first appellate Judge, vide

his judgment dated 21.03.2007, affirmed all the findings

of the Trial Court and dismissed the appellant's appeal.

9) The appellant pursued the matter to the High Court

in Second Appeal. The High Court, by impugned

judgment dated 30.07.2007, dismissed the second appeal

and affirmed the judgment/decree of the first Appellate

Court.

10) The appellant, felt aggrieved of the judgment of the

High Court, preferred this appeal by way of special leave

to this Court.

11) Heard Mr. V.K. Jhanji, learned senior counsel for

the appellant and Mr. Sudeep Mahajan, learned counsel

for the respondent.

12) Having heard the learned counsel for the parties

and on perusal of the record of the case, we find no merit

in the appeal.

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13) Here is a case where all the three Courts, namely,

Trial Court, first Appellate Court and the High Court

concurrently held in favour of the respondent (plaintiff)

and accordingly decreed his civil suit. In other words, all

the three Courts, on appreciating the evidence in their

respective jurisdiction and discretion, held that the

defense taken by the appellant (defendant) was not

proved. On the other hand, it was held that the

respondent was able to prove that the agreement was

real, bona fide and genuine and was thus capable of

enforcement. Indeed, we find that the Courts below

recorded this categorical finding of fact saying that the

genuineness of the agreement was even admitted by the

defendant's witnesses. The Courts below also recorded a

finding that the respondent was ready and willing to

perform his part of the agreement and, in fact, performed

his part of the agreement whereas the appellant failed to

perform his part of the agreement and thereby committed

its breach.

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14) In our considered opinion, the findings recorded by

the three courts on facts, which are based on

appreciation of evidence undertaken by the three Courts,

are essentially in the nature of concurrent findings of fact

and, therefore, such findings are binding on this Court.

Indeed, such findings were equally binding on the High

Court while hearing the second appeal.

15) It is more so when these findings were neither found

to be perverse to the extent that no judicial person could

ever record such findings nor these findings were found

to be against the evidence, nor against the pleadings and

lastly, nor against any provision of law.

16) In our considered opinion, the question as to

whether specific performance of an agreement should be

granted or not is essentially in the discretion of the

Court. Indeed Section 20 of the Specific Relief Act says

so in no uncertain terms.

17) Therefore, once the Trial Court, first and second

Appellate Court formed an opinion and decided to grant

7 the specific performance of the agreement to the plaintiff

in exercise of their respective discretionary powers, this

Court being the last Court in hierarchy cannot disturb

such concurrent findings while exercising power under

Article 136 of the Constitution of India. As mentioned

above, these findings are binding on this Court.

18) Learned counsel for the appellant, no doubt, made

sincere attempt to urge that the agreement in question is

a forged document which, according to him, is apparent

on its mere perusal. Learned counsel also urged that all

the three Courts committed an error in granting specific

performance of such agreement to the respondent.

19) We are afraid that we can accept this submission in

the light of what we have held supra. Indeed this very

argument was considered and repelled by the three

Courts after appreciating the evidence adduced by the

parties. It is, therefore, not permissible for this Court to

again appreciate the evidence in appeal and reverse any

of the findings.

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20) In view of foregoing discussion, we find no merit in

this appeal. The appeal thus fails and is accordingly

dismissed.

………...................................J. [R.K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

July 25, 2017

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