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Whether it is necessary to give suggestion in Cross Examination in Civil proceeding?

IN THE HIGH COURT OF DELHI

RFA 205/2004

Decided On: 10.07.2013

Sher Mohammad
Vs.
Mohan Magotra

Hon’ble Judges/Coram:Rajiv Sahai Endlaw, J.

Citation: 2013 SCC OnLine Del 2530.

1. The appeal impugns the judgment and decree dated 09.02.2004 of the Additional District Judge, Delhi dismissing suit No. 94 of 1997 filed by the appellant for specific performance of an Agreement dated 13.03.1995 with the respondent for sale of agricultural land falling in Khasra Nos. 1273, 1286, 1287, 1288, 1289, 1320, 1321 and 1322, total measuring 7.125 acres in village Punjab Khore, New Delhi. Notice of the appeal was issued and appeal thereafter admitted for hearing on 16.02.2005. Vide ad-interim order of the same date, the parties were directed to maintain status quo with regard to the nature, title and possession of the said land. The Trial Court record was requisitioned. However the same on receipt was found to be incomplete and the record shows that the missing parts of the Trial Court record were reconstructed before the District Judge.

2. The counsels have been heard between yesterday and today.

3. The case of the appellant/plaintiff in the plaint was:

(i) that the respondent/defendant had represented himself to be the owner of the aforesaid land by virtue of a Family Settlement dated 28.05.1993 between the legal heirs of Late Sh. Datar Singh, forming part of the consent Decree dated 25.08.1993 of this Court in CS(OS) No. 1495 of 1989 and CS(OS) No. 63 of 1989;

(ii) that the respondent further represented that he was in need of money and had agreed to sell his other lands also in the vicinity;

(iii) that the respondent had agreed to sell his aforesaid land for a total sale consideration of Rs. 4,98,750/- at the rate of Rs. 70,000/- per acre;

(iv) that since the land continued to be recorded in the revenue records in the name of Smt. Ranjit Kaur, though under the Family Settlement aforesaid had fallen to the share of the respondent, the respondent also agreed to first have the land mutated in his name and thereafter obtain NOC from the Patwari/Tehsildar;

(v) that the terms and conditions agreed between the parties were reduced into a writing dated 13.03.1995 in which the respondent admitted receipt of advance/part sale consideration of Rs. 4,25,000/- leaving a balance of Rs. 73,750/- payable at the time of registration of the Sale Deed and further admitted having delivered vacant peaceful physical possession of the said land to the appellant;

(vi) that the appellant after so coming into possession of the said land started tilling the same and approached the respondent repeatedly to enquire about the status of the permissions and sanctions required for execution of the Sale Deed and was always assured that the necessary steps were being taken;

(vii) that though the parties had agreed that the Sale Deed would be signed and executed on or before 31.07.1995 but the respondent towards the end of July, 1995 sought further 15 days time, again with the assurance to execute the Sale Deed thereafter; and,

(viii) however the respondent on 12.08.1995 purported to take over possession of the said land from the appellant; hence the appellant filed the suit from which this appeal arises on or about 16.08.1995 claiming besides the relief of specific performance, the relief of permanent injunction restraining the respondent from forcibly dispossessing the appellant from the land.

4. The respondent contested the suit by filing a written statement pleading:

(i) that the writing dated 13.03.1995 forming the basis of the suit of the appellant was forged;

(ii) that the said land was in power and possession of the respondent, though the appellant had after the institution of the suit illegally trespassed on the said land;

(iii) that the land had been grossly under-valued and no specific performance could thus be ordered;

(iv) that no amount, let alone the amount of Rs. 4,25,000/-, was ever paid by the appellant to the respondent;

(v) that Family Settlement in CS(OS) No. 1495 of 1989 was under challenge in CS(OS) No. 1790 of 1994 and the respondent for the said reason also as on 13.03.1995 had no right to enter into an Agreement to Sell with respect thereto;

(vi) that the writing dated 13.03.1995 appeared to have been prepared in collusion with other persons who were the recorded owners of the land;

(vii) that the signatures of the respondent on the Family Settlement in CS(OS) No. 1495 of 1989 had been obtained fraudulently;

It would thus be seen that the defence of the respondent/defendant was of denial of the Agreement of which specific performance was sought.

5. The appellant filed a replication to the written statement aforesaid of the respondent but need to advert to the contents thereof is not felt.

6. On the pleadings of the parties, the following issues were framed in the suit from which this appeal has arisen:

1. Whether defendant represented himself as owner of the suit property? OPP.

2. Whether the defendant entered in agreement dated 13.3.95? OPP

3. Whether a sum of Rs. 4,25,000/- was as advance/part sale consideration paid by plaintiff to the defendant and defendant executed valid receipt dated 13.3.95? OPP

4. Whether defendant has filed and neglected to carry out his part of the obligation? OPP

5. Whether the documents alleged have been forged? OPD

6. Whether the alleged agreement is void for non compliance of provisions of Income Tax Act? OPD

7. Whether the plaintiff is not in lawful possession of suit property? OPD

8. Whether the suit property is the subject matter of suit No. 1790/1994 pending in High Court? OPD

9. Whether the suit property is undervalued and proper court fee is not paid? OPD

10. Whether this Court has no pecuniary jurisdiction to entertain the suit? OPD

11. Relief.

7. The appellant examined himself as PW-1 and a witness to the writing dated 13.03.1995 as PW2 and the Local Commissioner appointed in the proceedings as PW3 and closed his evidence. The respondent examined himself as DW1 another villager as DW-2 and the clerk from this Court as DW3 and Patwari of village Punjab Khore as DW-4 and closed his evidence. No evidence was led by the appellant/plaintiff in rebuttal.

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8. The learned Additional District Judge in the impugned judgment, discussing Issues 1, 2, 3, 5 and 7 together has held:

(i) that a perusal of the writing dated 13.03.1995 titled ‘Receipt’ on which Ex. PW1/1 was put, showed that it was on a plain paper with no margin left on the top;

(ii) that there was hardly a space of 2 mm on top end where the word “Receipt” starts and there was no margin on the right side;

(iii) that the words ended just 2 mm before the end of the paper and there was very little margin (of less than an inch) on the left hand side;

(iv) that the signatures of the respondent appeared on the right side end of the paper;

(v) that though there was a revenue stamp affixed on the left side of the signatures which was crossed in black ink, the signatures of the respondent were in blue ink;

(vi) that under the word ‘Witnesses’, there was hardly any space; while one witness has signed under the word “Witnesses”, the other witness has signed near the revenue stamp in the middle of the paper;

(vii) the learned Additional District Judge thus concluded that the contents of the receipt had been pre-prepared and squeezed into the space available on the paper;

(viii) the learned Additional District Judge accepted the evidence of the respondent that he was doing business in partnership with Smt. Ranjit Kaur and in that regard had signed certain blank papers and given to Smt. Ranjit Kaur since he used to be out of Delhi for most the time and one of those papers appeared to have been misused to forge the writing Ex. PW1/1;

(ix) that the circumstances in which the appellant had deposed the Agreement to Sell to have come about also seemed highly unlikely;

(x) that the appellant had deposed that he had met the respondent for the first time in 1991 in the office of Anant Raj Builders where both appellant and the respondent were suppliers of building material;

(xi) that after 1991, he met the respondent in the first week of March, 1995 by chance in the parking of the Defence Colony market and when the respondent had informed the appellant that he wanted to sell his land and gave the appellant the Settlement Deed forming part of the decree of this Court in CS(OS) 1495/1989;

(xii) that thereafter the respondent had come to the house of the appellant where the appellant had called him and the next meeting was on 13.03.1995 when the Receipt was signed and payment of Rs. 4,25,000/- made;

(xiii) that the appellant could not also explain the source of Rs. 4,25,000/- paid as part sale consideration to the respondent;

(xiv) that the value of the land at the time of execution of writing dated 13.03.1995 was Rs. 6,50,000/- per acre and the respondent could not be believed to have agreed to sell the same at Rs. 70,000/- per acre;

(xv) that if the revenue stamp had been affixed on the receipt dated 13.03.1995 at the time of execution, there was no reason why the signatures were not over the revenue stamp;

(xvi) that had the respondent been in need of money, he would have contacted brokers for sale of the land and would not have sold the same to the appellant on a chance meeting in a parking of Defence Colony market;

(xvii) that the writing Ex. PW1/1 was forged and fabricated on a plain paper which had come into possession of the appellant through someone;

(xviii) that the appellant had been unable to prove the payment of ` 4,25,000/- to the respondent;

(xix) that since the wife, daughters and other family members of the respondent had in 1994 filed a suit against the respondent and certain other persons including with respect to the land aforesaid and claiming rights with respect thereto, the respondent on 13.03.1995 could not have represented himself to be the sole owner of the land; and,

(xx) that the report of the Local Commissioner appointed vide ex parte order on the very first date when the suit was admitted reporting the appellant to be in possession did not inspire confidence.

The learned Additional District Judge thus held that the agreement to Sell sought to be enforced being forged, there was no question of the respondent fulfilling his obligations therein. Qua Issue no. 6, it was held that merely because the payment under the purported agreement to Sell was made in cash did not make an Agreement void. The Issue no. 8 was also decided in favour of the respondent. However under Issue No. 10, the suit was held to be properly valued for the purpose of court fees and jurisdiction. Resultantly, the suit was dismissed with exemplary costs of ` 20,000/-.

9. The senior counsel for the appellant has argued; (i) that though the plea of the respondent in the written statement was of the writing titled ‘Receipt’ dated 13.03.1995 containing the Agreement to Sell being forged and fabricated but the respondent in his evidence deposed his signatures having been obtained on a blank paper and the said Receipt having been fabricated thereon; the said evidence is thus beyond pleadings and the learned Additional District Judge could not have on the basis thereof returned a finding of the Receipt dated 13.03.1995 being forged and fabricated; (ii) that the learned Additional District Judge erred in holding the appellant to have not explained the source of ` 4,25,000/- paid to the respondent; the appellant in his testimony had deposed that the said money was lying in his house and PW2 being a witness to the Receipt dated 13.03.1995 examined by the appellant had also deposed of payment in cash having been made to the respondent; it is argued that no suggestion was given to PW2 that the said cash was not paid and thus the payment stands proved and in any case the onus shifted to the respondent and which the respondent has failed to discharge; (iii) that though the respondent has denied handing over possession of the land to the appellant on 13.03.1995 but DW2 examined by the respondent, in his cross examination on 23.10.2003 admitted the appellant to have been cultivating the land; (iv) that inadequacy of sale consideration is no ground for not decreeing specific performance under Section 20 of the Specific Relief Act, 1963; that the learned Additional District Judge thus fell in error in disbelieving the Agreement for the reason of sale consideration being ` 70,000/- per acre when the price approved was of ` 4,65,000/- lacs per acre; and, (v) that there was no case of the appellant having taken any unfair advantage of the respondent or the respondent being under any hardship and the discretion in the matter of grant of relief of specific performance thus ought to have been exercised in favour of the appellant.

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10. Per contra, the counsel for the respondent has invited attention to the judgment dated 04.07.2008 of the Division Bench of this Court in LA. APP. 741/2006 titled Ishwar Singh Vs. Union of India and other connected matters and para 21 of which judgment sets out a Notification dated 03.05.1990 of the Land and Building Department, Delhi Administration fixing the minimum price of ` 4,65,000/- per acre for agricultural lands in Delhi with effect from 27.04.1990. He has contended that no prudent person would sell his land, accepted by the government itself to be having value of Rs. 4,65,000/- per acre (with the actual value being much more) at the rate of ` 70,000/- per acre. It is further argued that though there may be concealment of the actual consideration in Sale Deeds but not in Agreements to Sell. It is argued that no cross examination on the said aspect was done of the respondent appearing as DW1. It is further contended that there is no explanation as to why no proper Agreement to Sell was got executed especially when 90% of the purported sale consideration was being paid at the time of Agreement to Sell itself. Reliance is placed on para 7 of Shining India Developers Pvt. Ltd. Vs. Ltd. Col. P.S. Bhatnagar MANU/DE/2947/2011 : 188 (2012) DLT 726, para 7 of Deewan Arora Vs. Tara Devi Sen MANU/DE/2638/2009 : 163 (2009) DLT 520 and para 2 of Lourdu Mari David Vs. Louis Chinnaya Arogiaswamy MANU/SC/0726/1996 : AIR 1996 SC 2814 to contend that remedy of specific performance is an equitable remedy in the discretion of the Court; that the Court is required to examine whether the equities of the case demand a decree for specific performance to be granted and specific performance is not to be granted in favour of a person who does not approach the Court with clean hands.

11. I have considered the respective arguments.

12. It is the case of the appellant that he had agreed to purchase the said land from the respondent on the representation of the respondent that he is the owner thereof on the basis of a Family Settlement filed in CS(OS) No. 1495 of 1989 and 63 of 1989 of this Court. The said Family Settlement, the senior counsel for the appellant has contended has been proved as Ex. DW1/P1. The said document having not been found on the Trial Court file, the senior counsel for the appellant has shown from his own file. Reference to the land, subject matter of this suit, is found in para 3 of the said Family Settlement dated 28.05.1993 and with respect whereto, it is recorded that Smt. Ranjit Kaur, Kumari Dayaneeta Singh, Smt. Komal Kochhar, Smt. Kavita Singh & Kumari Rishma Singh, described as First Party in the said Family Settlement, had released and relinquished their interest therein in favour of the ‘Confirming Party’. ‘Confirming Party’ has been described in the said Family Settlement as Mohan Magotra i.e. the respondent herein, Smt. Kunti Devi, Kumari Shalu Magotra, Kumari Mitu Magotra, Sh. Mohan Magotra, Sh. Govind Ram, M/s. Govind & Co. and Smt. Madhu Magotra.

13. It being the case of the appellant/plaintiff that the copy of the said Family Settlement on which his evidence Mark ‘A’ was put, handed over by the respondent to him in the very first meeting in the parking of Defence Colony market and that the respondent had represented himself to be the sole owner of the land on the basis thereof, it is enquired from the senior counsel for the appellant as to how the appellant on the basis of the said document could presume the respondent alone to be the owner of the land when as per the said document itself, the land, besides the respondent belongs to several other persons, some of whom are minor.

14. No plausible answer has been forthcoming.

15. It was next enquired from the senior counsel for the appellant as to how, when as per the document relied upon by the appellant itself, the respondent is only one of the several owners of the land, could the appellant under Agreement with the respondent alone, acquire the entire land.

16. The only answer which is forthcoming is that specific performance can be ordered to the extent of the share of the respondent in the land.

17. Though the aforesaid course of action is permissible in law but the facts in the present case do not justify the same, even if the appellants were otherwise held to be entitled to the relief. The land agreed to be sold is agricultural land and division whereof is subject to the laws relating to minimum holdings of agricultural land. As per the document produced by the appellant himself, besides the respondent, Smt. Kunti Devi, Kumari Shalu Magotra, Kumari Mitu Magotra, Sh. Mohan Magotra, Sh. Govind Ram, M/s. Govind & Co. and Smt. Madhu Magotra are the owners of the land. The total land is 7.125 acres. The shares of each, even if equal, would thus be less than 0.9 acres and which may result in an agricultural holding not permitted to be transferred/conveyed. Though the learned Additional District Judge has not considered the matter in the said light but therefrom it is apparent that even if the findings with respect to the existence of the Agreement to Sell were to be in favour of the appellant, it is not possible to decree the suit and grant the relief of specific performance.

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18. Though the senior counsel for the appellant faced therewith has faintly suggested that a decree for refund of Rs. 4,25,000/- be then passed but upon attention of the senior counsel for the appellant being invited to Section 21 of the Specific Relief Act and the fact that the said relief has not been claimed in the plaint, no further argument in this respect has been made.

19. As far as the finding of the learned Additional District Judge, of there being no Agreement to Sell is concerned, I tend to agree therewith. The appellant/plaintiff in the present case has utterly failed to prove the availability with himself of the amount of Rs. 4,25,000/- paid in cash. Though in the evidence on record, there is a reference to a passbook of a bank account of the appellant/plaintiff having been produced during the course of the cross examination but the senior counsel for the appellant fairly admits that the said passbook does not justify the availability of Rs. 4,25,000/- with the appellant. As far as the argument of suggestion having not been given to PW2 is concerned, I may mention that the tenor of the entire cross examination by the respondent of PW2 is to challenge his statement; though of course no specific suggestion is given that he has lied on the aspect of payment of Rs. 4,25,000/- in cash in his presence. However, I am of the opinion that in a civil trial which is based on pleadings, there is no need for such suggestions to be given. The respondent in his written statement had already denied the said payment and it was for the appellant to prove the same. The practice of giving suggestions in cross examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. However unfortunately the said practice of criminal trials has crept into the civil trials also to the extent that most of the cross examinations being in the form of suggestions alone and which take considerable time. The purport of cross examination is to challenge the testimony and/or to falsify the witness or his credit worthiness and not to give suggestions to the effect that each and every deposition in examination-in-chief is false. Similarly, a party in a civil trial is not required to in cross examination put its case to the witness as the same as aforesaid already exists in the pleadings.

20. I am also unable to agree with the contention of the senior counsel that upon the mere statement of the appellant and the appellant’s witnesses of having paid the sale consideration of Rs. 4,25,000/- in cash, the onus shifted on the respondent. The appellant in cross examination sought to explain the availability of the said amount with him by explaining his source of income but without any proof whatsoever. Without the appellant proving any source of income from which he could have in his household over the years collected Rs. 4.25 lacs, the appellant cannot be said to have discharged the said onus. Moreover, it was the appellant alone who could have led affirmative evidence of payment of such amount and the respondent, besides denial of receipt could not have been expected to lead any evidence on the said aspect.

21. In the face of the appellant having failed to prove availability of funds for which Receipt dated 13.03.1995 was issued, the said claim in any case falls.

22. There is considerable merit in the reasoning given by the learned Additional District Judge of the manner in which the said Receipt is engrossed, also being indicative of the same having been manufactured on a plain paper bearing the signatures of the respondent.

23. In the ordinary course of transactions of sale-purchase of immovable property, documents of sale are not engrossed in such a manner. It is not as if the parties had cursorily wanted to keep a bare Receipt. The receipt is quite exhaustive and in legal language. If the intent was to prepare such a document, there was no reason why no proper Agreement to Sell could have been executed.

24. As far as the argument of the learned senior counsel for the appellant of the change in stand by the respondent qua the said Receipt is concerned, a perusal of the record finds a reason therefor also. The record reveals that the said receipt was not filed by the appellant along with the suit and was filed subsequently. The same was thus not available to the respondent at the time of filing of the written statement. In fact the receipt came to be produced at the time of recording of the evidence of the appellant as PW1 pursuant to the direction on 25.01.1999. The respondent was thus fully justified, on examination of the original document, to explain the signatures thereon which on such examination were found to be genuine. Rather the same shows the conduct of the respondent to be bona fide.

25. No other argument has been urged.

26. The appeal resultantly fails and dismissed.

27. The Trial Court having already imposed exemplary costs on the appellant, I refrain from imposing any further costs. Though there is a controversy between the parties as to possession also, with both, appellant as well as the respondent claiming to be in possession of the land today also, but in view of the above need is not felt to return any findings thereon.

Decree sheet be drawn up.

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