JUDGMENT
M.L. Singhal, J.
1. Kartar Singh son of Ganga Singh of village Kasor instituted suit for a specific performance of the agreement of sell dated 25.6.1987 against Dalbir Singh alias Vir Singh son of Hazara Singh son of Sham Singh of village Kasor qua 5/7 share of land measuring 158 kanals 1 marlai.e. 112 kanals 18 marlas situated in the revenue estate of village Kasor; in the alternative for the recovery of Rs. 70,000/- being consolidated damages, on the allegations, that Dalbir Singh had entered into an agreement to sell 5/7 share of land measuring 158 kanals 1 marla with him vide agreement dated 25.6.1987 @ Rs. 20,000/- per acre. A sum of Rs. 70,000/- was paid to him as earnest money on 25.6.1987. It was stipulated in the agreement that he will execute sale deed by 20.6. 1988 on receipt of the balance sale prices after adjustment of the loan due to the bank from him and the earnest money (ibid). In case of default on the part of Dalbir Singh in complying with the sale agreement, he (Kariar Singh) was entitled to Rs. 1.40 lac as consolidated damages being twice the amount of the earnest money or to enforce specific performance of the agreement on him (Dalbir Singh) through court. It was further stipulated in the agreement that in case Kartar Singh defaulted, earnest money paid by him would stand forfeited. Expenses of stamp and registration were to be borne by Kartar Singh. Before the arrival of the stipulated date for the performance of the agreement, he (Kartar Singh) approached Dalbir Singh alias Vir Singh with the balance sale consideration along with the amount required for meeting the expense of stamp and registration so that
sale deed could be executed but defendant Dalbir Singh alias Vir Singh avoided receiving the balance sale consideration and the amount required for the purchase of stamp and meeting registration charges. Notice dated 16.6.1988 was served upon him calling upon him to receive the balance sale consideration and the amount required for the purchase of stamp and meeting registration charges and execute sale deed. On 20.6.1988, he appeared before the Sub Registrar, Guhla with the balance sale consideration and the amount required for the purchase of stamp and meeting the registration charges and waited for the defendant the whole day long. Defendant, however, did not turn up. Eventually, the plaintiff got attested an affidavit from the Sub Registrar, Guhla swearing these facts. It is alleged in the plaint that he was always ready and wiling to go ahead with the agreement and perform his part of the agreement but the defendant was recalcitrant and committed breach thereof. It is further alleged in the plaint that he is still ready and wiling to perform his part of the agreement and obtain sale deed from the defendant,
2. Defendant Dalbir Singh alias Vir Singh contested the suit of the plaintiff urging that agreement dated 23/25.6.1987 is sham, ineffective, inoperative, invalid, collusive and forged document/transaction and is not binding on him. During the harvesting season of Kharif 1985 i.e. in the month of November, 1985, he orally agreed to sell his agricultural produce through M/s. Dalbir Singh Harish Kumar commission agents Cheeka, Tehsil Guhla. Said firm acting through its partners Dalbir Singh son of Kartar Singh, Harish Kumar son of Dina Nath and Kala Singh son of Gurnam Singh agreed that they would sell agricultural produce sent by him to the said persons’ shop at Cheeka Mandi and would on request render to him true and full accounts of the sale of the agricultural produce effected by him. It was further agreed between the parties that the said firm would lend money to him in advance before the harvesting of every crop and also during Kharif, 1985 so that he could meet his requirements and after the harvesting of the crop was over, he would be paid the amount which remains after the adjustment of the advance so taken by him with interest thereon @ 2% per month. The said firm sold his agricultural produce as his commission agent since Kharif, 1985 crop upto Kharif, 1987 and he used to receive the balance amount from the said firm after the settlement of accounts al the end of every harvesting crop. It was further urged that he used to append his thumb impression on the blank pronotes and bahi kept on the shop of the firm as desired by the aforesaid persons at the time of borrowing of the money and after settlement of accounts at the end of each harvesting crop in good faith and due to mutual trust and also because he had full faith and confidence in the honesty and integrity of the said firm and its partners. In the moth of December, 1985, he borrowed Rs. 28,000/-from the said firm for repaying loan due from him to M/s. Sham Lal Mano-har Kumar commission agent, Cheeka through which
he was selling his agricultural produce previously. In fact, after the harvesting of Rabi 1987 was over, a sum of Rs. 35,0007- was told to be due from him to the said firm and with a view to getting security for the repayment of the said loan and amount to be advanced by the said firm to him in the ensuing crop, security in the form of agreement to sell was to be got executed from him in favour of the said firm or its partners or any body desired by them regarding the land owned and possessed by him measuring about 5 acres. It was also agreed upon between the parties that fictitious amount more than actual amount i.e. Rs. 35,000/- shall also be mentioned there. Accordingly, on 23.6.1987, the defendant accompanied by one of the partners of the said firm namely Dalbir Singh son of Kartar Singh went to Gopi Chand, deed writer at Guhla and there stamp paper required for the execution of the agreement was purchased in his name and he appended his thumb impressions on the blank stamp papers, other papers and the register of the petition writer as asked for and desired by said Dalbir Singh son of Kartar Singh and the petition writer. He did so because he had full faith and confidence in the honesty and integrity of Dalbir Singh partner of the said firm. Said agreement was never intended to operate as agreement to sell. It was more in the form of security for the repayment of loan found to be due to the firm M/s. Dalbir Singh Harish Kumar commission agents Cheeka and to be advanced by this firm to him in the ensuing crop. For the first time on 2.3.1988, he came to know that instead of 5 acres of land, land measuring 112 kanals 1 marla had been mentioned and amount of Rs. 70,000/- i.e. double of Rs. 35,000/- the amount actually found to be due, was mentioned as earnest money alleged to have been paid by Kartar Singh who is father of one of the partners of the firm Dalbir Singh Harish Kumar in cash to the defendant on the said date and a fictitious date i.e. 20.6.1988 was shown to be fixed for the execution and registration of the sale deed pertaining to the said land and Rs. 20,000/- was mentioned as the rate per acre of the agreed land which was much less than the market value of the similar land prevalent at that time. Kartar Singh was in fact a benami head and the real beneficiaries are the said firm and its partners and the name of Kartar Singh was intentionally shown to be an intended buyer with ulterior motive to circumvent the taxation and other prevalent laws.
3. After the harvesting season of Sawni 1987 and after the setllement of account by the said firm, an amount of Rs. 46,000/- was in total told to be due from the defendant to the said firm inclusive of the amount of Rs. 35,000/- told to be due after the settlement of accounts at the end of harvesting seasons of Asari, 1987. Thereafter, the defendant was asked and so advised by the said firm and its partners that the defendant could be advanced more money by the firm only if the defendant agreed to transfer the land as per the terms and conditions as described in the agreement dated 23/25.6.1987 or to transfer by way of sale his tractor bearing registration No. HRQ-722 Swaraj make along
with implements either in their favour or in favour of any body desired by them. The defendant declined the first offer (after coming to know of the contents of the agreement to sell as told by the partners of the said firm namely Dalbir Singh son of Kartar Singh) and offered to sell his tractor as per the terms and conditions to be seltled by the respectables of his village, of course, in consultation with the said firm and its partners. On 27.2.1988, the defendant along with the persons namely Sohan Singh etc. visited the shop of the said firm where Kartar Singh, Gumam Singh sons of Ganga Singh resident of village Kasor and one Dina Nath (who is father of Harish Kumar) were also present. After a lot of discussion, it was agreed that the price of the said tractor along with is trolley would be Rs. 47,000/-. Tracior along with its trolley would be transferred in favour of Gurnam Singh son of Ganga Singh with a view to ward off the technicality of the law and it was also agreed upon specifically mat the agreement dated 23/25.6.1987 will be treated as cancelled and will be handed over.to the defendant. All the formalities were complied with and, defendant along with Dalbir Singh son of Kartar Singh, Gurnam Singh son of Ganga Singh, Dina Nath and Balwant Singh and another visited the shop of the petition writer at Guhla and the relevant papers for the transfer of the tractor along with trolley were got executed from the defendant and the defendant, said Gurnam Singh and others appended their thumb impressions/signatures on the documenis and the register of the deed writer. On 1.3.1988, defendant again visited the shop of the said firm along with Sohan Singh etc. and handed over to them the said tractor trolley and registration book etc. Dalbir Singh partner of the firm (and son of Kartar Singh) at the asking of the defendant and the said persons accompanied him. issued receipt dated 1.3.1988 but told them that the original agreement dated 23/25.6.1987 shall be handed over to the defendant-on 2.3.J988 since the said agreement was lying somewhere else. On 2.3.1988 in the morning the defendant along with Sohan Singh etc. visited the shop of the said firm and demanded back the original agreement dated 23725.6.1987 but were told by Dalbir Singh that the said agreement was not traceable and shall be handed over to the defendant as and when it was iraced. There was an exchange of hot words between them on the one hand and Dalbir Singh son of Kartar Singh on the other. As the non-return of the said agreement by Dalbir Singh raised their eye brows and they felt apprehensive and doubtful regarding the bona fides of Dalbir Singh son of Kartar Singh, they kept on insisting upon the relum of the said agreement. They also told Dalbir Singh that the defendant would no more be their customer if the said agreement was not handed over to him then and there. Dalbir Singh son of Kartar Singh lost his cool and told them flatly that the said agreement-would not be returned, rather the firm would file suits against the defendant on the basis of the said agreement and on the basis of the bahi entries and blank pronotes bearing the thumb impressions of the defendant kept with the firm. Thereupon,
the defendant and others told Dalbir Singh and oihers that they had reason to believe that the account regarding the sale of produce of the defendant through the said firm was not being rendered by the said firm truly and correctly to him and the defendant also demanded rendering of the true and correct accounts from Dalbir Singh son of Kartar Singh partner of the firm since Sawni l985toSawni 1987. Dalbir Singh son of Kartar Singh and others refused to render them true and correct accounts of the sale of the produce of Dalbir Singh alias Vir Singh by him with the firm. It was further urged that this agreement was forged inasmuch as in the register of the petition writer Gopi Chand, this agreement is shown to be dated 23.6.1987. Agreement produced in the suit for permanent injunction filed earlier by Kartar Singh was bearing the date 25.6.1987. In the injunction suit, temporary injunction was applied for. Along with the copy of the temporary injunction application, photocopy of the said agreement, affidavit etc. was sent to him. In the photocopy of the agreement, the signatures of Ashok Kumar attesting witness did not figure. In the agreement produced in the case, however, the signatures of Ashok Kumar figure which suggests that the signatures of Ashok Kumar were procured afterwards. It was further urged that in fact the agreement dated 23/25.6.1987 is the outcome of collusion, fraud and undue influence played and exercised by the said firm, its partners, deed writer, attesting witness, if any, and Kartar Singh. Defendant never agreed to sell land in favour of Kartar Singh out of free will and volition. It was civil suit No. 730 of 1997 (tilled Kartar Singh son of Ganga Singh v. Dalbir Singh alias Vir Singh. date of institution 9.8.i988) filed by Kartar Singh son of Ganga Singh (dead) represented by his son Dalbir Singh son of Kartar Singh for possession through specific performance.
4. Dalbir Singh alias Vir Singh son of Hazara Singh filed suit for declaration and rendition of accounts against (1) M/s. Dalbir Singh Harish Kumar commission agents, Cheeka Mandi through its partner Dalbir Singh son of Kartar Singh son of Ganga Singh; (2) Dalbir Singh son of Kartar Singh; (3) Harish Kumar son of Dina Nath resident of Guhla; (4) Kahla Singh son of Gurnam Singh; (5) Gurnam Singh son of Ganga Singh; and (6) Gopi Chand petition writer on the allegations that during the harvesting season of sawni crop 1985 that is in the month of November, 1985,by a verbal agreement, he appointed M/s. Dalbir Singh Harish Kumar defendants 1 to 4 as his commission agents for the sale of his agricultural produce. It was agreed that they would sell agricultural produce sent by him to them to their commission agents shop at Cheeka Mandi and as and when he wanted, they would render him true and full account of all the sales of the agricultural produce so effected. It was also agreed that they would lend money to the plaintiff in advance before the harvesting of every season and also during sawni 1985 so that he was able to meet his domestic as well as agricultural requirements and it was also
agreed that they would pay over to the plaintiff balance money at the end of the harvesting seasons after adjustment of the advance money with interest @, 2% per month. They effected sales of the agricultural produce sent to them by him since crops of Sawni 1985 to Sawni 1987 and received balance amount from them after settlement of the accounts at the end of each harvesting season after the adjustment of the advance money together with interest. Plaintiff used to append his thumb impressions in the blank pronotes and in the bahis kepi on the shop as required and asked to do so by them at the time of the borrowing of money and after settlement of account at the end of each harvesting season in good faith and due to mutual trust and also because the plaintiff had full faith and confidence in the honesty and integrity of defendants 1 to 4. He borrowed an amount of Rs. 28,0007- from defendants 1 to 4 in the month of December 1985 for repaying the amount due from him by way of loan which he had taken from his previous aarhita M/s. Sham Lal Mano-har Kumar. After the settlement of the accounts at the end of harvesting of the crop of Had 1987 in the last week of month of June 1987, he was told by defendants 1 to 4 that an amount of Rs. 35.000/- had become due from the plaintiff to defendants 1 to 4. He was further told that since an amount of Rs. 35,000/- had become already due from him, further advance could be made to him by the firm only if he agreed to give security for the said amount and also for the advance required by him in future from the firm in the coming seasons. In this way, he was induced by defendants 1 to 4 to execute an agreement to sell regarding his agricultural land in favour of defendants 1 to 4 or any body desired by the said defendants as security for the repayment of the loan. Being simpleton, illiterate and rustic, he was made to agree to the said proposal of defendants 1 to 4. Accordingly, on the same day, he along with defendants 1 to 4 went to the shop of the petition writer at Guhla. Plaintiff appended his thumb impressions on blank papers and in the register of petition writer as required and directed by them and the petition writer. He was told by defendant 1 to 4 that the said agreement was in fact a sort of security forthe repayment of the loan found to be due from him to the firm and the same shall be cancelled after the payment was received. In the last week of the month of February 1988 after the harvesting season of Sawni 1987, the accounts were settled by defendants 1 to 4 and he was told that an amount of Rs. 46,000/- had become due to him from the firm and he was again asked and advised by them that he could be given more money by the firm if he either agreed to transfer by way of sale the land as described in the agreement to sell (which was told to be measuring about 14 acres, the plaintiff came to know for the first time) and as per terms and conditions mentioned therein or to transfer by way of sale his tractor bearing registration No. HRQ-772 along with its implements in their favour or any body desired by them. He humbly declined the first offer regarding the sale of agricultural land and requested that he would transfer the tractor as per the terms and
conditions to be settled by the respectables of his village. On 27.2.1988, he along with Sohan Singh etc. visited the shop of defendants 1 to 4 where Kartar Singh, Gumam Singh and DinaNath son of Sant Ram (who is father of Harish Kumar) were also present. After lot of discussion, it was agreed upon that the price of the tractor bearing registration No. HRQ-772 with trolley was assessed at Rs. 47,000/- and it was to be transferred in favour of Gurnam Singh who is real brother of Kartar Singh and real uncle of Dalbir Singh. It was further agreed upon that the agreement to sell shall be treated as cancelled and will be returned to him. Accordingly, thereafter the plaintiff-defendant No. 2 along with defendant No. 6 and said Dina Nath. Balwant Singh and others went to the shop of petition writer at Guhla. Relevant papers for the transfer of said tractor and trolley were gol executed from him. Plaintiff-defendant No. 6 namely Gurnam Singh and others appended their signatures/thumb impressions on the documents and the register of the petition writer. On 1.3.1988, he alongwith Balwant Singh etc. again visited the shop of defendants I to 4 and handed overto them the said tractor trolley along with registration book on 1.3.1988, Dalbir Singh, at the asking of the plaintiff and Balwant Singh etc. accompanying him, issued receipt in his hand to the effect that the firm had received all amount from the plaintiff which was due to the firm from him. About the agreement, it was stated that it would be delivered to him on 2.3.1988. On 2.3.1988, agreement was, however, not returned to him-. Plaintiff became suspicious about the honesty and integrity of the defendants when they did not return to him that agreement despite his telling that if agreement was not returned to him, he would break with them and not sell his produce with them, thereupon, he and others accompanying him told defendant No. 2 that they had reasons to believe that they had not rendered truly and faithfully the accounts to him and demanded rendering of true and correct accounts. Defendant No. 2 refused to return the agreement to him and rather threatened that the firm would file suit against him on the basis of the agreement and also on the basis of bahi entries and also on the basis of blank pronotes with them in that eventuality.
5. Defendants 1 to 5 and 7 contested the suit of the plaintiff. It was urged that this is a false suit intended to act as counter-blast to the supposed claim for specific performance of agreement dated 25.6.1987. Agreement dated 25.6.1987 has no concern with the firm. It is an independent transaction between the plaintiff and defendant Kartar Singh. Firm has no concern with the sale of tractor. It was civil suit No. 729 of 1997 instituted on 14.3.1988.
6. Both these suits were consolidated into civil suit No. 729 of 1997. Following composite issues were framed in civil suit No. 729 of 1997 :
1. Whether the agreement dated 23/25.6.1987 is a sham, bogus, ineffective, inoperative, collusive, fraudulent, and a forged document as alleged in the plaint ?OPP
1-A. Whether the plaintiffs are entitled for the rendition of accounts from the defendants for the sale of agricultural produce for the crops of Sawni 1985 to Sawni 1987, if so its effect ? OPP
2. If issue No. 1 is not proved whether agreement dated 25.6.1987 is a validly executed document ? OPP
3. It issue No. 2 is proved whether the defendants have always been ready and willing to perform their part of contract ? OPD
4. If issue No. 2 is proved whether the plaintiff received a sum of Rs. 70,000/- as earnest money on the date of agreement as alleged ? OPD
5. Whether the plaintiff had borrowed a sum of Rs. 28,000/- from the firm M/s. Dalbir Singh Harish Kumar and the agreement in question was executed, if so its effect ? OPP
6. Relief.
7. Evidence was recorded in civil suit No. 729 of 1997 pertaining to both these suits. Both the suits were disposed of on the basis of thpt evidence through consolidated judgment recorded in civil suit No. 729 of 1997.
8. Additional Civil Judge (Senior Division), Kaithal dismissed civil suit No. 729 of 1997 titled Dalbir Singh alias Vir Singh v. Dalbir Singh Harish Kumar commission agents, CheekaMandi and others for declaration and rendition of accounts and decreed civil suit No. 730 of 1997 titled Kartar Singh son of Ganga Singh dead represented by his LR Dalbir Singh v. Dalbir Singh alias Vir Singh son of Hazara Singh for possession through specific performance on payment of balance sale consideration by Dalbir Singh to Dalbir Singh alias Vir Singh son of Hazara Singh.
9. Aggrieved from the order of Additional Civil Judge dated 9.5.1997 passed in both the suits, Dalbir Singh alias Vir Singh filed two appeals namely civil appeal No. 358 of 1998 and 359 of 1998. Vide order dated 26.5.1999, Additional District Judge, Kaithal dismissed both the appeals through the same common judgment.
10. Feeling still dissatisfied, Dalbir Singh alias Vir Singh son of Hazara Singh has knocked the door of this court through two appeals namely RSA. No. 2557 of 1999 which has arisen out of suit for specific performance which has been decreed by the two courts below and RSA no. 4155 of 1999 which has arisen out of suit for declaration and rendition of accounts filed by Dalbir Singh alias Vir Singh son of Hazara Singh against firm M/s. Dalbir Singh Harish Kumar and others which has been dismissed by the two courts below.
11. Since in both these appeals, the same question of law and fact arise for decision by this Court, I would dispose of both these appeals through this common judgment.
12. Kartar Singh son of Ganga Singh (dead) represented by his son Dalbir Singh claimed specific performance of the agreement to sell Ex.D1 dated
23/25.6.1987 against Dalbir Singh alias Vir Singh son of Hazara Singh qua land measuring 112 kanal 18 marla = 5/7 share of land measuring 158 kanal 1 marla. 11 is slated by Dalbir Singh son of Kartar Singh ihat Dalbir Singh alias Vir Singh had undertaken to sell land measuring 112 kanal 18 marla i.e. 5/7 share of land measuring 158 kanal 1 marla vide agreement Ex.D1 in favour of his father late Kartar Singh @ Rs. 20,000/- per kila and out oflhe agreed sale money, he had received Rs. 70,000/- as earnest money. It was stipulated in the agreement of sale that sale deed shall be executed on or before 20.6.1988 by Daibir Singh alias Vir Singh on receipt of the remaining sale money. It was further stipulated in the agreement that in case Kartar Singh defaulted in obtaining the sale deed from Dalbir Singh alias Vir Singh on payment of the remaining sale money by the stipulated date, the earnest money paid by him would stand forfeited. In case Dalbir Singh alias Vir Singh failed to execute sale deed by the stipulated dale, he would refund the earnest money received by him togelher with another sum of Rs. 70,000/- as damages. It was submitted by Dalbir Singh son of Kartar Singh that Dalbir Singh alias Vir Singh son of Hazara Singh started prevaricating and, therefore, his father filed suit for permanent injunction against him with a view to stalling him from hobnobbing with somebody else.
13. Dalbir Singh alias Vir Singh son of Hazara Singh has given his own version of the circumstances in which agreement Ex.D1 came into being. As per him, he is a fanner. Earlier, he was selling his agricultural produce through arhtiya M/s. Sham Lal Manohar Ku-mar. A sum of Rs. 28,000/- became due from him. As per Dalbir Singh alias Vir Singh, commission agents advance loans to the fanners to be adjusted in the price of produce which they sell through them. They also charge.interest at exorbitant rate. He switched on to M/s. Dalbir Singh Harish Kurnar (defendant) for the sale of his agricultural produce. He borrowed Rs. 28,000/- from M/s. Dalbir Singh Harish Kumar with a view to repay loan to the previous arhtiya. He sold his kharif, 1985 crop with M/s Dalbir Singh Harish Kumar. He appointed M/s. Dalbir Singh Harish Kumar as his arhtiya for kharif, 1985 i.e. in November, 1985. It was agreed that he would sell his agricultural produce through M/s Dalbir Singh Harish Kumar at Mandi Cheeka and they would renderhim full account of the sale of agricultural produce effected by him. It was also agreed that M/s. Dalbir Singh Harish Kumar would lend him money in advance before the harvesting of the crop so that he was able to meet his domestic as well as agricultural expense. It was also agred that at the end of every harvesting season, the balance amount due, if any, would be paid to him after adjustment of advance money along with interest at prevailing market rate of 2%. He effected sate of the agricultural produce relating to kharif, 1985 upto Kharif 1987 and he received the balance amount from M/s Dalbir Singh Harish Kumar after the settlement of the account at the end of every harvesting season after adjustment
of advance money together with interest. As per Dalbir Singh alias Vir Singh son of Hazara Singb, he used to append his thumb impressions on blank pronotes and the bahis as and when he was asked to do so by them at the time of borrowing of the money and at the time of settlement of accounts at the end of each harvesting season. He appended thumb impressions on blank pronotes and their bahis in good faith. He had full faith and confidence in the integrity and honesty of M/s Dalbir Singh Harish Kumar. As per Dalbir Singh alias Vir Singh, he borrowed Rs. 28,000A from M/s Dalbir Singh Harish Kumar in the month of December 1985 with a view to pay off M/s Sham Lal Manohar Kumar, arhliya of Cheeka. When accounts was settled at the end of harvesting of Rabi 1987 in June, 1987, he was told by M/s Dalbir Singh Harish Kumar that an amount of Rs. 35,000/- had become due from him. He was further told by them that since an amount of Rs. 35,000/- had already become due from him, M/s Dalbir Singh Harish Kumar would be unable to make any further advance to him and further advance could be made to him if he agreed to give some security for the amount of Rs. 35,000/- and the future borrowings. As he vvas already owing a sum of Rs. 35,000/- to M/s Dalbir Singh Harish Kumar and was in need of advances in future for meeting his domestic and agricultural expense, he became induced to furnish security to them as desired by them to secure the repayment of the loan found to be due from him. He stated that he asked them to take security from him of 2 to 5 kilas of land. He stated that he was simpleton, illiterate and a rustic. He could not see through their game plan. He was made to agree to the said suggestion of the firm M/s Dalbir Singh Harish Kumar. He was taken to the shop of the petition writer at Guhla by Dalbir Singh etc. partners of firm M/s Dalbir Singh Harish Kumar and at the shop of the petition writer at Guhla, he append his thumb impression on blank papers and also in the register of the petition writer as required and as directed by them and the petition writer. He was told by Dalbir Singh etc. that the said agreement would in fact be a sort of security for securing repayment of the loan found to be due from him to the firm and after the loan was repaid, the agreement would be cancelled. Dalbir Singh son of Hazara Singh PW7 stated that in the last week of month of February 1988 after the harvesting of Kharif 1987 crop was over, accounts were settled. A sum of Rs. 46,000/- was found due from him to the firm. He was again told by the partners of M/s Dalbir Singh Harish Kumar that further advance of money could be possible either of the agreed to sell land covered by the said agreement to sell which was told to be measuring about 14 acres or if he agreed to (ransfer by way of sale his tractor bearing registration No. HRQ-772 Swaraj make along with its implements to them or to any body desired by them. He stated that he declined to sell his agricultural land but agreed to transfer tractor with the necessary implements. On 27.2.1988, he along with Sohan Singh etc. visited the shop of M/s Dalbir Singh Harish Kumar where Kartar Singh. Gur-nam Singh son of Ganga Singh and one Dina nath son
of Ska Ram were found present. Dina Nath is father of Harish Kumar who is partner in M/s Dalbir Singh Har-ish Kumar. He staled that at the shop of the petition writer, their insistence was that he should sell the land. He agreed to sell tractor after initial hesitation. Tractor and its implements were assessed to be of the value of Rs. 47,000/-. It was to be transferred in favour of Gur-nam Singh. (It may be mentioned here that Gumam Singh is son of Ganga Singh i.e. real brother of said Kartar Singh). He stated that after the sale of the tractor and its implements, a sum of Rs. 1,0007- remained due to him which was never paid. He stated that he never agreed to sell land measuring 112kanal 18 marla i.e. 5/7 share of land measuring 158 kanal 1 marla which was his be all and end all rather his hearth and home. He stated that with the sale of land measuring 112 kanal 18 marla, he would be knocked out completely so far as his livelihood is concerned. He stated that agricultural is his main-stay. His sons Gurtej Singh and Sukhdev Singh are left only with 2/7 share of land measuring 158 kanal I marla. He stated that it would be difficult for him to maintain his family with a meagre chunk of land measuring 45 kanal 3 marla. He stated that agreement Ex.D1 was not the result of his free will and volition. He was a farmer, selling agricultural produce with his arhtiya M/s Dalbir Singh Harish Kumar constantly in need of borrowings from them. He stated that after the sale of tractor by him, M/s Dalbir Singh Harish Kumar executed receipt of his favour duly signed by Dalbir Singh son of Kartar Singh wherethrough he acknowledged that whatever amount was due to M/s Dalbir Singh Harish Kumar arhitiya, Cheeka Mandi from Dalbir Singh alias Vir Singh son of Hazara Singh, that they have received. He stated that he never entered into any agreement of sale with Kartar Singh son of Ganga Singh of his free will and volition. Agreement Ex.Dl came into existence because of the aforesaid circumstances and it was never intended that it should operate as an agreement to sell.
14. Dalbir Singh son of Kartar Singh DW3, on the other hand, gave his own version of the case. He stated that he was carrying on as arhtiya under the name and style M/s Dalbir Singh Harish Kumar, with his Gur-nam Singh and Harish Kumar are partners. Besides them there was no other partner in this firm. Dalbir Singh alias Vir Singh son of Hazara Singh used to bring his agricultural produce for sale at their arht shop. He brought agricultural produce for 3 crops in all at their shop for sale namely Kharif, 1986, Rabi 1987 and Kharif 1987 crops. Besides, the sale of these crops, he never effected the sale of any crop at their shop. He never brought any other crop forsale, at their arht shop. Amount of the sale proceeds of the first two crops was found equal to the amount of borrowings raised by him from them. As regards the third crop i.e. Kharif 1987, a sum of Rs. 5110/- was found due from him to them when accounts were taken. Dalbir Singh son of Hazara Singh did not pay them the amount or’Rs. 5110/- despite demands. He
stated that their firm had been maintaining bahis in the regular course of their business. They had been striking out balance daily. In their bahis, there is no men-tion of any amount of Rs. 28,000/- advanced to Dalbir Singh son of Hazara Singh in December, 1985 or any time. He stated that no amount of Rs. 35,000/- was found due at the end of Rabi, 1987 from Dalbir Singh son of Hazara Singh. He stated that their firm as such never asked for any security from Dalbir Singh. Their firm never asked Dalbir Singh son of Hazara Singh that he should place with them 2-4 kilas of land by way of security. He further stated that his father Kartar Singh had nothing to do with firm M/s Dalbir Singh Harish Kumar. He stated that these are two independent and distinct transactions, namely the agreement to sell Ex.Dl and the sale of tractor together with its implements for Rs. 46,000/- with Gurnam Singh. He stated that no panchayat ever came to them. Their firm never told the panchayat that they would cancel the agreement to sell. He further slated that he never executed any receipt dated 1.3.1988 giving full discharge to Dalbir Singh son of Hazara Singh so far as dues of the firm from him were concerned. He further stated that agreement Ex.Dl was executed by Dalbir Singh alias Vir Singh son of Hazara Singh in favour of his father. His father’s signatures appear on agreement Ex.Dl. His father died on 30.8.1995. Hehadal-ways been ready and willing to obtain sale deed on payment of the remaining sale consideration to Dalbir Singh son of Hazara Singh. He stated that firm Dalbir Singh Harish Kumar and his father are distinct entities.
15. Shri B.R. Gupta, Advocate, learned Counsel for the appellant Dalbir Singh son of Hazara Singh sub-milled that no specific performance should be ordered of agreement Ex.Dl because he was not a willing participant in the execution of agreement Ex.Dl. It was submitted that because of the situation in which he was placed vis-a-vis his arhtiya M/s Dalbir Singh Harish Kumar/Kartar Singh, it cannot be said that he had given his free consent in the execution of the agreement. Free consent as defined in Section 14 of the Indian Contract Act, 1872 means “when it is not caused by coercion as defined in section 15 or undue influence as defined in Section 16 or fraud as defined in Section 17 or misrepresentation as defined in section IS or mistake subject to the provisions of Sections 20, 21 and 22. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.” It was submitted that there was fiduciary relationship between him and M/s Dalbir Singh Harish Kumar/Kartar Singh as the tatter was in a position to dominate the will of the former, who was a farmer selling his agricultural produce with the latter who was his arhtiya and he was constantly in need of money and he had always to look to his arhtiya for the fulfilment of his needs. It was submitted that if that was so, the onus on the respondent would be much greater to prove that agreement Ex.Dl had been execuled by the appellant of his free will and volition and there was no pressure
on him and further M/s Datbir Singh Hansh Ku-mar/Kartar Singh had not (aken any unfair advantage over him on account of the said fiduciary relationship between them.
16. It is true that in this case, the onus to prove would be greater on the respondent that the agreement Ex.D I was the result of free will and volition of Daibir Singh son of Hazara Singh and no unfair advantage had been taken because of fiduciary character in which they were standing to each other. “Undue influence” as defined in section 16 of the Indian Contract Act, 1872 means that “a contract is said to be induced by undue influence where the relation subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other; (iii) where a person who is in a position to dominate the will of the other enters into a contract with him and the transaction, appears on the face of it or on the evidence adduced found to be unconscionable, the burden of proving that such contract was not inducted by undue influence, shall lie upon the person who is in a position to dominate the will of the other.” It was submitted ihat it lay upon M/s Daibir Singh Harish Kumar/Kartar Singh to prove that he had really intended to sell his entire land measuring 112 kanal 18 marla when he had known that after the sale of this land, he would not be left with any land to bank upon so far as his livelihood was concerned. It was submitted that he is a farmer. Agriculture is his main-stay. Sale of his entire land would bring in some liquid money to him. It was submitted that in the hands of an illiterate farmer whose main- stay is agriculture, liquid money cannot at all avail him. It was submitted that this circumstance suggests that arhtiya who was in a position to dominate his will, dominated his will and got this agreement, which, if implemented, would tantamount to depriving him of his sole source of livelihood.
17. It was submitted that agreement Ex.Dl is false in malerial particulars. In agreement Ex.Dl, there is recital as to delivery of possession. In fact, possession was not delivered by Daibir Singh son of Hazara Singh to Kartar Singh. Daibir Singh son of Kartar Singh DW could not have the courage to say that possession was delivered to them. Tt was submitted that there is construction in the land as shown in site plan Ex.PW9/A. If he had been willing participant in the execution of agreement Ex.Dl, he would not have agreed to sell land together with valuable construction existing thereon for a paltry sum of Rs. 2.98 lacs. It was submitted that electric meter is in his name and he is paying electricity charges. It was submitted that he would not have agreed to sell land measuring 112 kanal 18 marla together with valuable construction for a meagre sum of Rs. 2.98 lacs but for the situation he was placed. In support of this submission that land was much more valuable, he has drawn my attention to the cross-examination of Daibir Singh son of Kartar Singh where he has stated that 6-7 years ago, market value of this land was Rs. 50,000/- per acre. His state-
ment was recorded on 19.3.1996. It was submitted that in the year 1987, market value of the land could not be that low as Rs. 20.000/- per kila only. In his cross-examination, he stated that he has seen this land which is fertile. In Khasra No. 21/28/2 measuring 3K 8M, on 2K-0M, there is residential house.
18. It was submitted that if agreement Ex.Dl had been genuine and an independent transaction vis-a-vis the transaction touching the sale of tractor together with its implements, Dalbir Singh son of Kartar Singh would not have denied the execution of receipt dated 1.3.1988 whereby it was acknowledged that whatever was due from Dalbir Singh son of Hazara Singh to firm M/s Daibir Singh Harish Kumar that they have received and nothing is due. He should have instead straightaway stated that receipt Ex.PW4/A has nothing to do with agreement Ex.Dl which is between Daibir Singh son of Hazara Singh and Kartar Singh son of Ganga Singh while receipt Ex.PW4/A is a transaction between Daibir Singh son of Hazara Singh and M/s Daibir Singh Harish Kumar. It was further submitted that there is no evidence that any amount of Rs. 70,000/- was really paid at the time of execution of the agreement Ex.Dl. Agreement Ex.Dl was scribed by Gopi Chand petition writer Guhla. It was signed by Kartar Singh. It purports to have been executed on 25.6.1987. It was submitted that agreement Ex.D1 was scribed on 23.6.1987 and at the time when it was scribed, Ashok Kumar was not present. It was not attested by Ashok Kumar in the presence of the scribe on 23.6.1987. Agreement was taken by Kartar Singh on 23.6.1987 with him when it did not bear the attestation of Ashok Kumar. In support of this submission, he submitted that Kartar Singh had earlier filed suit for permanent injunciion. In that suit, he made an application under Order 39 Rules 1 and 2 CPC for the grant of temporary injunction. Copy of that application, affidavit, agreement, etc. was sent to Daibir Singh son of Hazara Singh. They were photostat copies. In the photostal copy of the agreement, the attestation by Ashok Kumar does not figure.
19. It was submitted by the learned Counsel for the appellant that agreement Ex.Dl as it was as on 23.6.198 when it was scribed it did not bear the attestation of Ashok Kumar. If that was so, there is no proof that any amount of Rs. 70,000/- was paid to Daibir Singh alias Vir Singh son of Hazara Singh. It was submitted that agreement Ex. Dl bears the signatures of Kartar Singh. It bears the signatures of Gopi Chand and the thumb impression of Daibir Singh alias Vir Singh. Kartar Singh did not appear into the witness box. Gopi Chand has not stated that the amount of Rs. 70,000/-was paid to Daibir Singh alias Vir Singh son of Hazara Singh in his presence. It was submitted that if Ashok Kumar DW has stated that he attested agreement Ex.Dl and a sum of Rs. 70,000/- was paid in his presence to Daibir Singh alias Vir Singh, he should not be believed, first – because he did not figure on agreement Ex.Dl on 23.6.1987 when it was scribed and he came to figure on this agreement afterwards, second Ashok
Kumar is the real brother-in-law (Jeeja) of Harish KU-niar and Harish Kumar is partner in firm M/s Dalbir Singh Harish Kumar. Other partner Dalbir Singh is the son of Kartar Singh and Gurnam Singh is the real brother of Kartar Singh and the real uncle of Dalbir Singh. It was submitted that if it is taken that attestation of Ashok Kumar figured on agreement Ex.Dl as it was originally, on the photostat copy thereof also there should have been the impress of the signatures of Ashok Kumar. It was submitted that in suit for permanent injunction filed by Kartar Singh against Dalbir Singh alias Vir Singh, temporary injunction was granted. In compliance with the provisions of Order 39 Rule 3 CPC, Kartar Singh despatched copies of the plaint, application for temporary injunction, affidavit, photostat copy of jamabandi and photostat copy of the agreement Ex.Dl to Dalbir Singh alias Vir Singh in envelope Ex.PW5/A. In support of this submission, he drew my attention to the statement of Shri Parveen Kumar, Clerk to Shri R.P. Gupta, Advocate (PW5) who has stated that he has seen envelope Ex.PW5/A, writing on which is in his band. He despatched this envelope to Dalbir Singh alias Vir Singh on behalf of Kartar Singh in a suit for injunction in compliance with the provisions of Order 39 Rule 3 CPC. In this envelope, he put copies of the plaint, application for temporary injunction, affidavit, photostat copies of jamabandi and the agreement. (At the same time he stated that he was unable to say whether mark A to B are those which he had put in this envelope). He stated that mark A to E did not bear his signatures or the signatures of R.P. Gupta, Advocate. It was submitted by the learned Counsel for the appellant that if Dalbir Singh alias Vir Singh had taken Rs. 70,000/- from Kartar Singh on 23.6.1987 or 25.6.1987, he would not have taken Rs. 2450/-, 350/, 700/-, 125/-, 450/-, 50/-, 60/-, 2810/-, 1778/-, 539/-, 1050/-, 200/- and so on 25.6.1987, 27.6.1987, 29.6.1987 and so on. It was submitted that this shows that agreement Ex.Dl was fake.
20. It was submitted that in agreement Ex.Dl, there is recital that possession was delivered (which factually is not correct) because possession is with Dalbir Singh alias Vir Singh son of Hazara Singh. It was not shown that Hazara Singh had amount of Rs.70,000/- with him on 23/25.6.1987 or that he withdrew that amount from somewhere, if Kartar Singh is noi taken any different from M/s Dalbir Singh Harish Kumar. It was submitted that the falsity of agreement Ex.Dl stands explained. Receipt Ex.PW4/A dated 1.3.1988 is proved to have been executed by Dalbir Singh son of Kartar S’ingh as Shri Atul Kumar Singla, Document Expert has stated that on comparison, he found his signatures on receipt Ex.PW4/A dated 1.3.1988 tallying. Receipt PW4/A is an admission by Dalbir Singh that whatever was due to firm M/s Dalbir Singh Harish Kumar arhtiya from Dalbir Singh alias Vir Singh son of Hazara Singh that has been received and nolhing is due from him. It may be recalled that on 27.2.1988, tractor was sold for Rs. 47,000/- by Dalbir Singh alias Vir Singh to Gurnam Singh son of Ganga Singh. Rs.
46,000/- was received by Dalbir Singh alias Vir Singh in cash and Dalbir Singh paid this amount to M/s Dalbir Singh Harish Kumar and after this amount was paid, nothing was due to firm M/s Dalbir Singh Harish Kumar. Version of Dalbir Singh son of Kartar Singh that a sum of Rs. 5110/- was found due on the taking of accounts between the firm and Dalbir Singh alias Vir Singh on 31.3.1988, does not fit in with the facts stated in receipt Ex.PW4/A dated 1.3.1988. Version of Dalbir Singh son of Kartar Singh does not fit in with the sale of the tractor by Dalbir Singh alias Vir Singh son of Hazara Singh for Rs. 47,000/- on 27.2.1988 with Gurnam Singh vis-a-vis the version that a sum of Rs. 5110/- was found due on rendition of accounts between the firm and Dalbir Singh on 31.3.1988. It was submitted that the value of the land together with construction was much more. Learned counsel for the appellant thus submitted mat no specific performance of agreement Ex.Dl could have been ordered when agreement Ex.Dl was not proved to have been executed for consideration. It was submitted that agreement Ex.Dl was proved to have been executed by Dalbir Singh alias Vir Singh with a view to provide security for advances to be made to him by firm M/s Dalbir Singh Harish Kumar. It was submitted that how could Dalbir Singh alias Vir Singh have been willing to execute this agreement Ex.Dl whereunder the whole of his agricultural land was involved. If this agreement is taken to be genuine, he would not be left with any parcel of land. A farmer whose main- stay is agriculture would never think of selling his agricultural land and leave his family to starvation.
21. Learned counsel for the respondent submitted that agreement Ex.Dl was genuine. It is proved to have been executed by Dalbir Singh alias Vir Singh of his free will and volition and for consideration. It was submitted that the attestation by Ashok Kumar is missing on the photostat copy because it was not sent by Kartar Singh to Dalbir Singh alias Vir Singh and this photostat copy was substituted by Dalbir Singh alias Vir Singh with the genuine photostat copy which had really been sent to him. There is no evidence to sustain this submission. Faced with this position, it was submitted that both the courts below have concurrently found, after the appraisal of entire evidence, that there was breach of agreement on the part of Dalbir Singh alias Vir Singh son of Hazara Singh which was a genuine agreement executed for consideration. It was also submitted that it was concurrently found that Kartar Singh was entitled to the grant of specific performance. It was submitted that such a finding of fact cannot be disturbed in second appeal. In support of this submission, he drew my attention to Sadhu v. Mst. Kishni, 1979 PLR 577, where it was held that where the courts below after appraisal of the entire evidence on the record had given a concurrent finding of fact that the defendant-respondent had performed Karewa marriage and thus forfeited all her rights and title to the property left by her deceased husband. In second appeal, the High Court again reappraised the evidence
recorded in the case and set aside that finding of fact. In second appeal, High Court has no jurisdiction to interfere with that finding of fact. He drew my attention to Lachmi and others v. Silak Ram and others, 1988(1) CLJ(C, Cr. andRev.) 642, that finding of fact based upon appreciation of evidence cannot be interfered with in second appeal. In Navaneethammal v. Arjuna Chetty, AIR 1996 S. C. 3521, it was held by the Hon’ble Supreme Court that the view taken by the first appellate Court based on material should not be disturbed by the High Court even if another view is possible on re-appreciation of evidence. High Court should not re-appreciate the evidence to reach another view. In Kondiba Dagadu Kadam v, Savitribai Sopan Gujar and others, JT 1999(3) SC 163 : 1999(2) RCR(Civil) 587 (SC), the Hon’ble Supreme Court held that a concurrent finding of fact cannot be disturbed underSection 100 CPC. Even if two views are possible, the one taken by the lower appellate Court is binding unless it is basedon no evidence or inadmissible evidence. In Dayanoba Bhaurao Shemade v. Ma-roti Bhaurao Marnor, 1999(2) Cur.LJ. (C.C.R.)527, it was held that question whether finding of fact is against the weight of evidence or not remains within the realm of appreciation of evidence and it does not project question of law. Reversal of the finding of fact arrived at on the basis of appreciation of evidence in second appeal is impermissible.
22. It was also submitted that if after the passage of time, the property agreed to be sold has become valuable and consideration specified in the agreement to sell in ridiculously low, is no ground to refuse specific performance. Tn support of this submission, he drew my attention to Sarjeet Singh v. Kartar Singh (deceased) Rep. by LRs and another, 1987 PLJ 184.
23. It was submitted that in all cases of agreement to sell immovable property, transfer of immovable property is to be ordered unless compelled by some circumstances. In support of this submission, he drew my attention to Anokh Devi and others v. Trilok Singh and others, 1996(1) Civil Court Cases 245 : 1996(1) RCR(Civil) 289 (P&H). It is true that if agreement is proved to have been executed for consideration and the court feels satisfied that specific performance should be ordered, the court should order specific performance.
24. In this case, it is true that both the Courts below have concurrently found in favour of Kartar Singh. Findings of fact arrived at by them, however, are unsustainable in law as they are based on no evidence. Both the courts below have forgotten to take into account that there was fiduciary relationship between Dalbir Singh alias Vir Singh son of Hazara Singh and Kartar Singh and therefore, they should have accepted better proof from Kartar Singh as to that agreement Ex.Dl was for consideration and that he had taken no unfairadvantage over Dalbir Singh alias Vir Singh son of Hazara Singh who was farmer bringing his agricultural produce for sale to M/s. Dalbir Singh Harish Ku-mar arhtiya at Cheeka Mandi. Both the courts below
have forgotten to take into account that he was always in the grip of the arhtiya. He was constantly in need of borrowings from his arhliya. Without his arhtiya, he could not meet either his domestic expense or agricultural expense. Both the courts below have forgotten to lake into account whether agreement Ex.Dl was the result of free will and volition of Dalbir Singh alias Vir Singh and there was no undue influence on him in the execution of that agreement whereby he had agreed to sell his entire holding, thus, leaving his family to starvation. Both the courts below have forgotten to find out whether agreement Ex.Dl was an independent transaction or agreement Ex.D 1 was nothing but in the nature of security obtained by M/s. Dalbir Singh Harish Kumar to secure the advances to be made by them to Dalbir Singh alias Vir Singh. Finding of fact arrived at by the two courts below are not sustainable at all on the evidence on record. They are based in misappre-ciation of evidence. They are based rather on no evidence. Finding of fact arrived at by the courts below on no evidence or on gross misappreciation of evidence can be interfered with in second appeal by this Court because it will be also a substantial question of law whether a court of fact is entitled to return a finding of fact which is not sustainable at all on the evidence on record and whether such a finding shall be binding on the High Court in second appeal. Finding of fact arrived at concurrently by the two courts below, if works havoc to the cause of justice, cannot be allowed to be sustained.
25. Execution of receipt by Dalbir Singh son of Kartar Singh dated 1.3.1988 marks the taking of account between Dalbir Singh alias Vir Singh and the firm. No rendition of’accounts could be asked for Dalbir Singh thereafter.
26. For the reasons given above, RSA No. 2557 of 1999 (in which is involved the grant of the relief of 1999, (in which is involved the grant of the relief of specific performance) is accepted. In consequence, the judgments and decree of both the courts below are set aside which they have passed in civil Suit No. 730 of 1997. Civil Suit No. 730 of 1997 is dismissed. RSA No. 4155 of 1999 (in which is involved the grant of relief of declaration and rendition of accounts) is dismissed. In consequence, the suit for declaration and rendition of accounts (Civil Suit No. 72 of 1997) remains dismissed as before. No order as to costs.
27. Revision allowed.