1. This First Appeal has been filed by the appellant- original plaintiff being aggrieved and dissatisfied with the judgment and decree dated 7-10-1998 passed by the learned City Civil Judge, Ahmedabad, in Civil Suit No.2286 of 1990 whereby the suit of the plaintiff was dismissed with costs of Rs.1,000/-. Civil Application No.12130 of 1998 has been filed for leading additional evidence.
2. Facts in short are that the respondent-original defendant, who is the mother-in-law of the plaintiff and owner of premises bearing Survey No.182 Census No.203 situated in Bhavanpura Ward, agreed to sell second floor of the premises admeasuring 66 sq.yards to the plaintiff for Rs.82,000/- by executing a registered agreement to sell on 4-8-1987 on payment of earnest money of Rs.17,500/-. On 18-2- 1988, Rs.52,500/- were paid by the plaintiff to the defendant towards sale price. Though the plaintiff was always ready and willing to pay remaining amount of Rs.12,000/- to the defendant to get the conveyance deed executed, the defendant was not executing the same nor refunding the amount of earnest money. Therefore, a suit being Civil Suit No.2286 of 1990 was filed by the plaintiff seeking specific performance of the agreement to sell. Defendant resisted the suit by filing written statement at Ex.26 contending inter alia that the suit was filed with mala fide intention to grab her property. It was further contended that when the defendant refused to give dowry to the plaintiff when demanded from her daughter, the plaintiff represented her to execute an agreement to sell in favour of the plaintiff for the second floor of her building to be produced so that he can get housing loan from the Government. It was further contended that looking to the welfare of her daughter, the defendant executed the agreement to sell in favour of her son-in-law in respect of second floor of the building without any consideration and also signed in some paper as demanded by the plaintiff. It is further contended that using this paper, plaintiff executed agreement to sell and obtained loan from the Government and purchased property in Mahadevnagar, Khokhra Mahemdavad. It was further contended that thereafter, when the defendant did not agree to the plaintiff’s continued demand for money for purchase of TV, refrigerator, scooter etc., the plaintiff used this agreement to sell and filed the present false suit. The trial court, after framing issues and after hearing the learned advocates appearing for the respective parties, dismissed the suit, which is giving rise to present First Appeal.
3. Heard learned advocate for the plaintiff, Mr.M.B.Gandhi and learned advocate, Mrs.Nisha M.Parikh for the defendant.
4. Learned advocate, Mr.M.B.Gandhi, submitted that the judgment and decree is contrary to the facts and law. He further submitted that the trial court has not decided the issues properly. He further submitted that the trial court has not appreciated the oral evidence of plaintiff at Ex.35 and also attesting witness to agreement to sell, Shri Maheshbhai Darji at Ex.39. He further submitted that although wife of the plaintiff was not examined by the defendant nor was there a single document regarding the demand of dowry proved by the defendant, the trial court erred in believing that there was a demand of dowry by the plaintiff. He further submitted that there was an admission on the part of the defendant herself that an agreement to sell was executed by receiving an amount of Rs.17,500/- by the defendant, the trial court has failed to consider the same. The trial court has also failed to consider that a sum of Rs.52,500/- was paid vide receipt at Ex.37 bearing the signature allegedly given by the defendant on plain paper which contention, according to him, was taken for the first time and hence, cannot be accepted. According to him, when there is a documentary evidence, oral evidence cannot be considered as per Secs.91 and 92 of the Indian Evidence Act. It is further submitted that affidavit of the advocate of the trial court is also filed to the effect that these documents were not placed on record at the relevant time and, therefore, these documents are very necessary which goes to the root of the case and hence, if the Civil Application is not allowed, great prejudice will be caused to the appellant It was therefore urged that that the appeal and Civil Application be allowed.
5. Learned advocate, Ms.Nisha Parikh, submitted that the impugned judgment and decree has been passed after going through oral as well as documentary evidence on record. She further submitted that the suit has been filed in order to bring pressure on the defendant. As far as the agreement to sell Ex.36 is concerned, she submitted that it was specifically mentioned in it that if the purchaser did not execute the sale deed within a month of the agreement to sell by paying the balance amount, agreement to sell would be treated as cancelled and the amount paid at the time of execution of agreement to sell would not be refunded. Drawing my attention towards receipt Ex.37, she submitted that it was a plain receipt which does not contain any mention of extension of time limit. She further submitted that since agreement to sell has come to an end, the plaintiff cannot insist for specific performance of said agreement to sell and hence, the suit of the plaintiff was rightly dismissed by the trial court. She therefore urged to dismiss this appeal.
6. This Court has gone through the oral as well as documentary evidence. As per the evidence on record, no document is produced to show any source of funds from where the amount was allegedly paid by the defendant against the consideration. Considering the deposition of the plaintiff, except the salary, he has no other source of income and, therefore, the plaintiff must prove his case by leading cogent evidence to the effect of his source of income and sufficiency of funds when the agreement to sell Ex.36 was executed. The trial court has held that agreement to sell was executed without any consideration. This Court is also satisfied that nothing has come out from the evidence to show that at the time of execution of alleged agreement to sell which was executed by the defendant mother-in-law in favour of appellant son-in-law, amount of consideration of Rs.70,000/- was paid. Considering the evidence of the plaintiff also, he has no other source of income except his salary. Therefore, plaintiff has failed to prove that amount of consideration was paid by him from the source of income. This Court has also gone through the evidence of defendant and it is found that she has respect towards truth as she did not deny her signature appearing on the alleged agreement to sell. As regards receipt of money, she has specifically stated on oath before the Court that only for the purpose of obtaining loan, plaintiff has entered into agreement to sell but she did not receive any amount towards the consideration. The trial court has discussed the evidence in great detail and came to the conclusion that considering the relationship between the plaintiff and the defendant, this document of agreement to sell was created by the plaintiff only to obtain loan. The trial court also rightly came to the conclusion that the plaintiff has failed to prove his case and, therefore, there is no reason to interfere with the findings of the trial court.
7. It was the submission of Mr.Gandhi that affidavit of daughter of the defendant was also filed wherein it was stated that she made payment to the defendant towards consideration. Another document is produced of getting loan from the department which, according to Mr.Gandhi, clearly shows that plaintiff has obtained loan and considering the bank accounts, prima facie it is established that amount was paid towards consideration to the defendant.
8. It is pertinent to note in this connection that plaintiff has also taken plot and construction was also started in the said plot and it is the say of the plaintiff by affidavit of daughter of the defendant that daughter was doing some work and therefore, she recently constructed the house from the said source.
However, it is not possible to believe this argument as no evidence is produced before the trial court or this Court to show as to what amount was received by the daughter of the defendant by doing work and how they made payment towards construction work of the house which was constructed in Gandhinagar and therefore, only presumption that could be drawn is that amount which was received by way of loan was used for constructing the house at Gandhinagar and, therefore, in the opinion of this Court, plaintiff has failed to prove his case as far as payment of consideration paid towards the agreement to sell is concerned. It is also pertinent to note that plaintiff is the son-in-law of the defendant and it appears that only for the welfare of the daughter and to help the plaintiff to obtain loan, this document of agreement to sell was created and, therefore also, plaintiff has failed to prove his case. It appears from the evidence that the documents which the plaintiff intended to produce before the trial court were in the custody of the plaintiff since institution of the suit and though ample opportunities were there for the plaintiff to produce the same, plaintiff has not produced the same.
9. On going through the entire record of the case including the different stages of the suit and also the report dated 3-3-1999 of the concerned Judge, prima facie this court is satisfied that there is no sufficient and satisfactory explanation comingforth from the plaintiff for non-production of the documents before the trial court and only with ulterior motive to fill up the lacuna, permission is sought for production of documents and hence, this Court is of the opinion that application for production of documents is not required to be allowed.
10. In the entirety of facts and circumstances of the case, since the plaintiff has failed to prove his case, his suit was rightly dismissed by the trial court. As the said findings appear to this Court to be just, legal and proper, no interference is called for in the same. Hence, this appeal as well as Civil Application require to be dismissed.
11. Both the First Appeal and Civil Application are dismissed.
FURTHER ORDER (M.D.SHAH, J.) After pronouncement of the judgment, learned advocate for the appellant-plaintiff requested to extend the interim relief granted by this Court vide order dated 25-11-1999 in Civil Application No.10296 of 1998 for a period of six weeks. Considering the facts and circumstances, request is granted. Interim relief granted by this Court vide order dated 25-11-1999 passed in Civil Application No.10296 of 1998 is extended for a period of six weeks.
(M.D.SHAH, J.) RADHAN