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2021 (4) TMI 1373 - HC - Indian LawsSuit for possession through specific performance of an agreement by way of execution of sale deed of land - it is alleged that the agreement dated 6.11.1992, put forth by the plaintiff was a forged document, which did not even bear their signatures. Whether the courts below have misread and misinterpreted the agreement to sell Exhibit PW-1/A inasmuch as it clearly identifies the property subject matter of agreement to sell and the findings thus recorded are vitiated? - HELD THAT:- In the instant case, agreement to sell refers to a ‘Kutcha house’ allegedly owned and possessed by the defendants in an area of around 5 biswa at Kangar, Tehsil Haroli, District Una, with further rider that revenue papers regarding Khasra number etc., of the house would be produced at the time of registration of sale deed. Neither the land in question nor the house involved has been identified in the agreement. No khasra number finds mentioned in the agreement. The extent of the area alleged to have been sold by the defendants in the agreement is around 5 biswa, whereas the plaint talks about land measuring 0-9 marlas out of total land measuring 3 kanals and 4 marlas, comprised in specific khasra numbers - All material aspects which needed to be reflected with certainity have been left in the realms of speculation. Neither the agreement gives out clear identity of the land nor it spells out the boundaries. Even the area of the house-subject matter of the agreement is not correctly recorded therein. No ascertainable or determinative intention can be deciphered from this agreement. Such an agreement to sell is not capable of enforcement. Its specific performance cannot be granted. Whether the courts below were wrong in dismissing the suit for specific performance by holding it to be hit of Section 9 of the Specific Relief Act and Section 29 of the Indian Contract Act in the absence of any such plea raised by the respondents in the written statement and the findings thus recorded are beyond pleadings? - HELD THAT:- Section 29 of Indian Contract Act entitles a defendant to avoid an agreement if the same is void. Also the defendant is entitled to take the defence of vagueness & void nature of the agreement in order to avoid its specific performance under Section 9 of the Specific Relief Act. Such a defence would essentially revolve around frame of the agreement and its logical interpretation in the facts of the case. Agreement being vague & therefore un-enforceable is a plea, which can be raised by the defendants even without specifically expressing it in the written statement - In TILAK RAJ BAKSHI VERSUS AVINASH CHAND SHARMA (DEAD) THROUGH L. RS. AND ORS. [2019 (8) TMI 1899 - SUPREME COURT], the Apex Court was inter-alia considering two questions viz i) whether the High Court was right in, without even a plea, holding that the family settlement is vague and unenforceable and void ii) Whether the High Court was right in holding that the Courts could not exercise discretion under Section 20 of the Specific Relief Act 1963 as the contract is not specifically enforceable. Whether the courts below have misread and mis appreciated the statements of PW-1 and PW-2 and the findings thus recorded are vitiated? - HELD THAT:- The stamp vendor was not examined by the plaintiff. Defendant No.2 Malkit Singh while appearing in examination-in-chief stated that Ext. PW1/A, dated 6.11.1992, was a forged document and never executed by the defendants. This witness was not at all cross-examined by the plaintiff in respect of the valid execution of the agreement. No suggestion was given to this witness by the plaintiff that he had executed the agreement. Burden of proving due execution of the agreement was on the plaintiff, which he failed to discharge. Under the circumstances, there was hardly any necessity for expert opinion about signatures on the document - Plaintiff miserably failed to prove due execution of the agreement (Ext. PW-1/A). The agreement dated 6.11.1992 (Ext. PW-1/A) is vague & void, therefore, not capable of being enforced. Plaintiff even otherwise has failed to prove its execution by the defendants in accordance with law. No interference in concurrent dismissal of plaintiff’s suit by the learned Courts below, is called for. Appeal dismissed.
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