Court No. - 23
Case :- SECOND APPEAL No. - 1410 of 2018 Appellant :- Chhotak And Another Respondent :- Panna Devi Counsel for Appellant :- Vinod Kumar Yadav,Bhola Nath Yadav
Hon'ble Rajiv Joshi,J.
Heard Sri Bhola Nath Yadav, learned counsel for the appellants.
This is defendants' second appeal arising out of a suit filed by the plaintiff for specific performance of contract, both the courts below have decreed the suit of the plaintiff and directed the defendant to execute the sale seed after receiving the rest of the sale consideration.
The facts as reflect from the record are that the the registered agreement to sell was executed on 26.7.1988 with regard to the plot no. 465,095 kari 916/474 out of which .084 kari was agreed to be sold by the defendant. It is further averred by the plaintiff that the total sale consideration was Rs. 10,700/- out of which Rs.10,200/- was paid as earnest money and rest was agreed to be paid at the time of registration of the sale deed. The plaintiff has given a notice and recorded her attendance at the office of Sub-Registrar but the defendants avoided the same and even failed to appear before the Sub-Registrar and therefore, the suit was filed.
The written statements were filed by the defendants and contested the suit only on the ground that the agreement to sell was not executed by the both the defendants and their signatures over the same are forged and therefore, no decree for specific performance of contract can be passed. Both the parties adduced the oral and documentary evidence in respect of their case. The trial court vide judgment and decree dated 26.7.2001 in Original Suit No. 28 of 1991 with the finding that the registered agreement to sell dated 26.7.1988 was executed and the defendants have failed to prove that their signature over the same are forged.
The finding was also recorded by the trial court that the plaintiff is always ready and willing to perform her part of contract,the suit was decreed. Against that order, an appeal was filed by the defendants challenging only the findings recorded by the trial court with record to the execution of sale deed and other findings had not been challenged. The lower appellate court has considered all the evidence and specifically recorded that the registered agreement to sell has been executed by the defendants in favour of the plaintiff and dismissed the appeal vide order dated 17.9.2018 Both the judgments of the courts below are impugned in the present second appeal.
Contention of the learned counsel for the appellants is that the only scribe of the registered agreement to sell was examined and no attesting witnesses were examined in order to prove the agreement and therefore, findings recorded in this regard are perverse.
It is further contended by the learned counsel for the that the oral evidence adduced by the appellants have not been considered by the courts below.
I have considered the argument as raised by the learned counsel for the appellants and perused the impugned judgement.
The specific finding has been recorded by both the courts below that the registered agreement to sell has been executed by the defendants in favour of the plaintiff with regard to the land in dispute. The finding was also recorded to the effect that in the agreement to sell, thumb impression both the defendants which was proved by the Hand Writing Expert, who has himself examined as P.W. -3 in order to prove signatures of the defendants on the agreement to sell. No efforts have been made by the defendants to examine any Hand Writing Expert from their side.The finding so recorded by both the courts below with regard to the execution of sale deed is based on evidence available on record.
No substantial questions of law involved in the present appeal and the appeal lacks merit and is accordingly dismissed. No order as to costs.
Order Date :- 21.12.2018 Akbar