' On 26-1-1992 the petitioner filed a suit against the respondents. In the plaint, it was stated that the respondents are owners of land measuring 11 Kanals, 18 Marlas. They agreed to sell the land in favour of the petitioner vide agreement dated 11-1-1992. They received Rs.10,000 by way of earnest and promised to transfer the land on 1-2-1992 after receipt of the balance amount of Rs.40,000. It was then stated that the petitioner has learnt that the respondent No.1 has now transferred his share in favour of respondent No.2. Treating this development a refusal, a decree for specific performance was sought. Now the respondent filed a joint written statement. They proceeded to state that only respondent No.1 had entered into an agreement to sell his share of the land for Rs.50,000, while the respondent No.2 joined the transaction as a witness. Later, they learnt that now the land of respondent No.2 has also been included. Following issues were framed by the learned trial Court:--
(1) Whether the plaintiff is entitled to the decree of possession through specific performance prayed for? OPP.
(2) Whether the plaintiff has no cause of action or locus standi to bring this suit against the defendant? OPD.
(3) Whether the plaintiff is estopped by his conduct to bring this suit? . OPD.
(4) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction?
OPD.
(5) Whether the plaintiff has not come to the Court with clean hands? OPD.
(6) Whether the suit is false and frivolous and the defendants are entitled to special costs under section 35-A of C.P.C. From the plaintiff? OPD.
(7) Relief.
' Evidence of the parties was recorded. Under Issue No.4, it was noted that court-fee has been paid.
Issues Nos. 3 and 5 were not pressed. Issue No.6 was held to be redundant. Issue No.2 was answered in favour of the petitioner. Under Issue No.1 it was found that the execution of the agreement stands proved as against respondent No.
1. It was further observed that the respondents purchased the land in the year 1986 for Rs.70,000, therefore, the plea of the respondent No.1 that he agreed to sell his share of the land for Rs.50,000 is plausible. It was also found that a sum of Rs.10,000 has admittedly been paid to respondent No.
1. Thus, the petitioner was held entitled to a decree for damages in the sum of Rs.20,000. The suit was accordingly decreed for the said amount against respondent No.1 vide judgment and decree dated 12-11-1998. A first appeal filed by the petitioner was dismissed by a learned A.D.J., Shakargarh, District Narowal, on 7-2-2002.
2. Learned counsel for the petitioner contends that both the learned Courts below have failed to read the evidence on record. According to the learned counsel, the execution of the agreement by both the respondents was proved not only through the evidence produced by the petitioner but also the witness produced by the respondents themselves. Learned counsel for the respondents, on the other hand, contends that in the first instance execution by respondent No.2 has not been proved and in the second even if the execution is proved, it has rendered the agreement to be unconscionable as it is not to be believed that the respondents agreed to sell the land purchased by them for Rs.70,000 for Rs.50,000.
3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. Before I proceed further, I may note here with some regrets that the learned A.D.J.
Proceeded to observe that no marginal witnesses of the agreement Exh.P.1 has been produced. This observation gives an impression that the learned A.D.J. Has proceeded to decide the first appeal even without reading the evidence on record. Be that as it may, the agreement dated 11-1-1992 is on record as Exh.P.1. It narrates that Nazir Ahmad son of Badar Din (respondent No.1) and Rashid Ahmad son of Badar Din (respondent No.2) have agreed to sell land measuring 11 Kanals 18, Marlas comprising Khasra Nos.880, 881 and 882 in favour of Muzaffar Hussain petitioner for Rs.50,000 and have received Rs.10,000 in presence of witnesses acd have promised that after receiving Rs.40,000 balance they will execute and get registered a sale-deed in favour of the petitioner on 1-2-1992.
The document purports to bear the thumb-impression of Nazir Ahmad and signatures of Rashid Ahmad. It also bears the signatures of the petitioner Muzaffar Hussain. It has been attested by Abdul Majeed and Muhammad Iqbal. It is scribed by Allah Ditta Scribe.
4. Now Allah Ditta Scribe appeared as P. W.1 on 18-10-1992. He stated that the agreement is written by him and bears his signatures and that he scribed the agreement on the instructions of the parties. This agreement was read over to the parties whereafter they put their signatures or thumb-impressions. In his cross-examination, he stated that the N.I.C. Number mentioned in the document is that of Rashid Ahmad. He denied that the N.I.C. Number mentioned is that of Nazir Ahmad. He, however, stated that he did not know the parties previously.
5. The said. Abdul Majeed is P.W.3. He stated that in his presence the sale was negotiated and the respondents were to sell 11 Kanals and 18 Marlas of land for Rs.50,000. In his presence, the agreement was written which bears his signatures as a marginal witness. In his presence, Rs.10,000 were paid to the respondents and the document was read over and they signed or thumb-marked the same. Nothing material came out in his cross-examination.
6. Now a significant aspect of the case is that the same Allah Ditta. Scribe, was produced by the respondents as D.W.4 on 24-9-1998. He had -brought along his register and produced copy Exh.D.1.
He stated in examination-in-chief that the copy Exh.D.1 is the correct copy of his register. He then stated that Nazir put his thumb-impression and Rashid signed the document. Thereafter, he was cross-examined and he admitted that the document was written under the instructions of both the respondents and that the N.I.C. Number of Rashid Ahmad was entered in the document. He admitted that the document was read over to the parties and they signed the same thereafter.
Now according to this Exh.D.1 Nazir Ahmad son of Badar Din and Rashid Ahmad son of Badar Din agreed to sell 11 Kanals, 18 Marlas of land to Muzaffar Hussain petitioner for Rs.50,000 and have received Rs.10,000 and will get the sale-deed registered up to 1-2-1992. The original bears the thumb-impression of Nazir Ahmad and signatures of Rashid Ahmad. Now Rashid Ahmad respondent No.2 appeared as D.W.3. He proceeded to state that he had not sold his land through the said agreement. He stated that he accompanied the petitioner when the agreement was written. He complained that they purchased the land eight years ago for Rs.70,000 and it was worth Rs.90,000 at the relevant tim and that the agreement was not read over to them. In his cross- examination, he stated that he has not brought along N.I.C. Card. He further stated that 4th day after the agreement, he came to know that it has been forged and this information was provided by Nazir respondent. He stated that he did not get a case registered and did not take any proceedings for cancellation of the document. He admitted that the witnesses were Iqbal and Abdul Majeed.
7. Nazir Ahmad respondent No.1 appeared as D. W.1. He has stated that the agreement was between him and the petitioner for six Kanals of land for Rs.50,000. According to him, the witnesses are Allah Rakha and Allah Ditta. He stated that at the time of writing and executing the agreement, Rashid and other persons were present. Now he states that when the summons in the suit went to him, he came to know that name of Rashid has also been entered.
8. Having examined the said evidence in the case, the Scribe who had also signed the agreement Exh.P.1 was produced by both the parties respectively as P.W.1 and D.W.4 and on both occasions he stated without any demur that both the respondents got the document -scribed and that it was read over to them and that it was thereafter that all the parties signed or thumb-marked the document. Similarly, Abdul Majeed the admitted marginal witness has made his statement. I do find that both the learned Courts below have deliberately misread the evidence on record. Nothing appears from the document Exh.P.1 that any insertion or interpolation has been made therein at a later stage. Rashid respondent says that he was aware of the alleged forgery four days after the execution of the agreement and that the information was provided by Nazir respondent No.1 while latter states that he came to know about addition of the name of Rashid when summons in the suit were served. I, therefore, reverse the findings of the learned Courts below on Issue No.1 and find the same in favour of the petitioner.
9. Now this leaves the said second contention of the learned counsel for the respondents. I do find that according to register sale-deed dated 20-4-1986 (Exh.D.2) the respondents purchased the land from one Jamal Din for Rs.70,000. I B also find that according to the endorsement of the Sub- Registrar, Shakargarh, the full amount of Rs.70,000 was paid by the vendees to the vendor in his presence. It is also true that the Lonsideration mentioned in the agreement Exh.P.1 is Rs.50,000. I may further note here that there is no evidence on record of the market value of the suit-land at the time of execution of the agreement. Now prima facie, a case of inadequate consideration is made out. However, it is to be seen as to whether inadequacy of the consideration by itself would be a ground for annulling the agreement and not enforcing the same when it stands proved that the parties did agree for the transfer of land subject to the conditions mentioned in the agreement Exh.P.1. To my mind mere inadequacy of price is not a ground for refusing the specific performance.
Section 28(a) of the Specific Relief Act, 1887, deals with this situation. According to the said statutory provision, specific performance of a contract cannot be enforced against a party thereto, inter alia, if the consideration to be received by him is so grossly inadequate, with reference to the state of things existing at the date of the contract, as to be either by itself or coupled with other circumstances evidence of fraud or of undue advantage taken by the plaintiff. I find that no foundation for applying the said provision stands laid down in this case.
10. For the reasons stated above, this civil revision is allowed. The impugned judgments and decrees passed by the learned Courts below are set aside and instead a decree is passed in favour of the petitioner and against the respondents for specific performance of agreement to sell the suit-land dated 11-1-1992 (Exh.P.1). The petitioner shall make a deposit of the balance amount of Rs.40.000 in the trial Court on or before 15-6-2004. In case this amount is not deposited on or before the said date, the suit shall stand dismissed. In case the amount is deposited, the decree shall be executed in terms of Order XXI, rule 32, C.P.C. No orders as to costs.