Court No.37
Case :- SECOND APPEAL No. - 1313 of 2009 Appellant :- Jang Bahadur Respondent :- Smt. Bhagauti Devi Counsel for Appellant :- Manish Kumar Nigam,Rajendra Singh Chauhan Counsel for Respondent :- D.K. Gupta,Apoorva Hajela Hon'ble Siddhartha Varma, J.
This is a defendants' Second Appeal. The Suit as was filed by the plaintiff was dismissed. However, the Appellate Court decreed the First Appeal. Hence the instant Second Appeal.
The suit was filed with an allegation that the plaintiff and the defendant had entered into a registered agreement to sell with regard to half of the area of the plot no.940.
The Trial Court framed as many as six issues but since the finding with regard to Issue Nos.1, 3 and 4 was to the effect that the execution of the agreement was not proved, it held that the plaintiff was not entitled to get the sale executed in pursuance of the document dated 13.10.1986. The Appellate Court, however, reversed the judgment and specifically found that the document dated 13.10.1986 was a registered agreement to sell and that the plaintiff had proved the same in accordance with law and thereafter decreed the suit.
Learned counsel for the appellant made various submissions and chiefly argued that the question of law involved in the appeal was as to whether, could the document i.e. the agreement to sell, under section 68 of the Evidence Act, when had not been proved by the attesting witnesses, be read in evidence.
Learned counsel for the plaintiff-respondent, however, relied upon the decisions reported in AIR 1996 SC 761 : Smt. Hans Raji Vs. Yasodanand; 2001 (44) ALR 656 : Surendra Kumar Vs. Nathulal & Anr. and AIR 2017 SC 5559 : Bayanabai Kaware Vs. Rajendra and submitted that only such documents as were compulsorily required to be proved by law by the attesting witness were required to be so proven.
Learned counsel for the respondents relying upon the above decisions made a distinction between such documents which were covered by the provisions of section 68 of the Evidence Act, 1872 and such other documents which were not covered by the provisions of section 68 and submitted that such documents which could not be received in evidence without examining one of the attesting witnesses, could not be read in evidence but such documents which were not so required to be attested, could be taken into evidence even without requiring the attesting witness to prove its execution. He submitted that the agreement to sell was not such a document which was to be compulsorily proved by the attesting witness before the document could be taken in evidence and, therefore, submitted that the question of law framed and argued by the learned counsel for the appellant did not arise in the instant Second Appeal.
Under such circumstances, after having heard the learned counsel for the parties and after having gone through the record, I find that the Second Appeal is concluded by finding of facts and no substantial question of law arises for the decision in the case.
The Second Appeal is, accordingly, dismissed.
Order Date :- 30.05.2019 GS (Siddhartha Varma, J.)