JUDGMENT
V.K. Jhanji, J.
1. This is defendant second appeal directed against the judgment and decree of the Appellate Court whereby on appeal by the plaintiff, judgment and decree of the trial Court has been set aside and suit of the plaintiff for specific performance of the contract, decreed.
2. In brief, the facts are that one Surjeet (appellant No. 1 herein) was the owner of land measuring 51 Kanals. He executed an agreement of sale in favour of plaintiff on 30.8.1988. At the time of execution of the agreement, a sum of Rs. 53,000/- was paid as earnest money. It is the case of the plaintiff that on or around 6.11.1988, he approached defendant Surjeet to get the sale deed executed and registered but on one pretext to the other, the matter was postponed. Plaintiff averred that he got suspicious of the intention of defendant Surjeet and in order to safeguard his interest, he got notice published in a local newspaper on 13.11.1988 informing the public at large about sale in his favour. He averred that hand-bills in this regard were also circulated and posted at conspicious places in the village and also near the Offices of the Sub-registrar, Faridabad. Plaintiff further averred that defendant No. 2 Girraj Singh, despite full notice of the agreement in favour of the plaintiff, purchased land measuring 23 Kanals 15 Marias out of the suit land vide sale deed dated 13.12.1988 registered on 13.1.1989.
3. Upon notice, defendant No. 1 resisted the suit on various grounds. He alleged that plaintiff has set up a false and bogus agreement. He alleged that defendant No. 2 Girraj Singh had entered into an agreement of sale on 7.4.1988 and under that agreement, he had received Rs. 40,000/- as earnest money. He further averred that defendant Girraj Singh had purchased land measuring 23 Kanals 14 Marias subject to lease-hold rights of his brother Ashok Kumar for a period of 99 years. He further stated that land measuring 13 Kanals 19 Marias was subsequently sold to defendant Girraj Singh for Rs. 65,000/- vide registered sale deed dated 13.1.1989. defendants No. 2 to 4 filed separate written statements almost on the same grounds which had been taken by defendant No. 1.
4. On the pleadings of the parties, trial Court framed material issues after the parties had been given opportunity to lead evidence, trial court though found that Surjeet had entered into agreement of sale on 30.8.1988 and received Rs. 53,000/- as earnest money, yet dismissed the suit by saying that the plaintiff had not been ready and willing to perform his part of the agreement. Trial Court also found that agreement dated 7.4.1988 set up by defendant No. 2 being prior in time to agreement dated 30.8.1988 with the plaintiff and sale deed having been executed on the basis of that agreement, defendant No. 2 is bonafide purchaser for valuable consideration. However, on appeal by plaintiff, judgment and decree of trial Court has been set aside and suit of the plaintiff for specific performance of the agreement, decreed. The first Appellate Court has affirmed the finding of the trial Court in regard to execution of agreement of sale dated 30.8.1988 by Surjeet in favour of plaintiff and also receipt of Rs. 53,000/- as earnest money. As regards the contention of the defendants that they are bona fide purchasers for valuable consideration, the first Appellate Court has highlighted many suspicious circumstances showing that they are not bona fide purchasers/lessees. Having found the material issues in favour of the plaintiff, the first Appellate Court decreed the suit. Hence, this second appeal by the defendants.
5. Mr. M.L. Sarin, Senior Advocate appearing on behalf of the defendants has contended that in presence of expert witness who had opined that agreement of sale does not bear signatures of Surjeet, first Appellate Court has erred in law in comparing itself the disputed signatures on agreement of sale dated 30,8.1988 with the admitted signatures. I find no merit in this contention of the learned counsel for the defendants.
6. It is true that the handwriting expert examined by the defendants has opined that the agreement of sale purported to have been executed by Surjeet does not bear his signatures. However, merely relying on the statement of expert, it cannot be held that the agreement does not bear signatures of Surjeet or it was not executed by him. It is well settled that opinion and evidence of handwriting expert should not be acted upon without substantial corroboration. Having regard to the imperfect nature of science of identification of handwriting, in Murari Lal v. State of Madhya Pradesh, A.I.R. 1980 S.C. 531, their Lordships of the Supreme Court held that the approach of the Court should be one of caution. Reasons for opinion should be carefully probed and examined. All other relevant evidence must be considered. In the instant case, learned District Judge while dealing with the opinion of handwriting expert, has considered all other relevant evidence and finally decided to reject it. I am in agreement with the view taken by the learned District Judge that in the presence of overwhelming evidence proving the execution of agreement of sale dated 30.8.1988, opinion of handwriting expert to the contrary is of no value. It is to be noticed that Surjeet in his written statement, although denied the execution of agreement and claimed it to be a fabricated document, yet he failed to step into the witness box to substantiate his allegations. So much so he failed to turn up to admit or deny the agreement of sale when called upon to do so by the Court. He was given many adjournments for this purpose and on one date, trial Court directed that in case defendant Surjeet would not ambit or deny the document, then the document would be deemed to gave been admitted. Despite the said direction, defendant Surjeet did not appear. Mr. Sarin, learned counsel also appearing on behalf of defendant Surjeet in second appeal, was not in a position to explain the reasons for non-appearance of Surjeet to ambit or deny the agreement of sale and receipt dated 30.8.1988.
7. It is then contended by the learned counsel for the defendant that the learned District Judge has erroneously come to the conclusion that defendants No. 2 to 4 are not bona fide purchasers/lessees. Learned counsel contended that agreement dated 7.4.1988 set up by defendant No. 2 being prior to time, suit of the plaintiff on the basis of agreement dated 30.8.1988 ought not to have been decreed. This contention too is without any merit. Learned District Judge has discussed each and every piece of evidence and on appreciation of the same has drawn a correct conclusion that agreement and receipt dated 7.4.1988 are ante dated and were brought into existence in order to defeat the claim of the plaintiff. Agreement dated 7.4.1988 has not even been referred to in the sale deed executed in favour of plaintiff by Surjeet. In case there had been such an agreement, there is no reason as to why the same would not find mention in the sale deed which is alleged to have been executed on the basis of agreement of sale dated 7.4.1988.
8. It is then contended that in view of the fact the plaintiff himself had claimed alternative relief for damages, first Appellate Court should have granted alternative decree for damages instead of ordering specific performance of agreement which in the circumstances of this case would be unrealistic and unfair. The contention too is without any merit.
9. In the instant case, plaintiff having successfully proved the execution of agreement on payment of earnest money, there was no reason to deny the relief of specific performance of agreement particularly when defendant Surjeet committed breach of agreement by selling the land to other defendants. It is to be noticed that plaintiff in this case lost no time in approaching the Court for relief of specific performance of the contract. As per agreement dated 30.8.1988, defendant Surjeet was required to get the sale deed executed and registered on or before 6.11.1988. Plaintiff having become suspicious of the intention of defendant Surjeet that he might sell the land to some body else, got a notice published in a local newspaper and distributed hand-bills and also pasted the same at conspicuous places in the village and near the office of the Sub-Registrar, Faridabad. Suit for specific performance too was filed on 27.1.1989 i.e. within five months of the execution of the agreement. As regards the judgment in the case of Kanshi Ram v. Om Parkash Jawal, (1996-2)113 P.L.R. 337 cited by learned counsel for the defendants, alternative relief of damages was granted because the respondents therein were prepared to pay Rs. 10 lacs, though appellant therein had claimed Rs.12,000/-. Agreement of sale related to land measuring 100 square yards situated in Dayanand Colony, Lajpat Nagar, New Delhi and total sale consideration to be paid was Rs.10,000/- out of which Rs. 2,500/- were paid as earnest money. The said case lends no support to the case of defendants. On the facts of the present case, it would be wholly inequitable if relief of specific performance of agreement is denied to the plaintiff.
10. Consequently, this appeal shall stand dismissed.