Court No. - 34
Case :- SECOND APPEAL No. - 1031 of 1978 Appellant :- Vijai Bahadur Singh Respondent :- Ram Roshan Singh And Others Counsel for Appellant :- S.K. Verma,Bipin Lal Srivastava,Siddharth Verma Counsel for Respondent :- G.N. Singh,I.S.Singh Vatsa
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Bipin Lal Srivastava, learned counsel for appellant and Sri G. N. Singh, learned counsel for respondent.
2. This is plaintiff's appeal under Section 100 of Code of Civil Procedure (hereinafter referred to as 'CPC') having lost in both Courts below. Record shows that by order dated 11.01.1979, appeal was admitted and notice was issued, but without framing any substantial question of law involved in it. Even in memo of appeal no substantial question of law has been framed by appellant.
3. Learned counsel for appellant submitted that he has subsequently moved an amendment application seeking amendment in the memo of appeal by addition of following questions as substantial questions of law :
“A. Whether the dispute signature could be rejected when there was a similarity between the disputed signature and the admitted signature?
B. Whether in the absence of any evidence on record the signature on the agreement to sell could be treated as forged?
C. Whether the report of the expert Alexander could be read in evidence after rejecting the evidence of the plaintiff's expert witness Hardless?
D. Whether the finding in regard to the signature on the agreement to sell be treated as forged when the courts below themselves failed to decipher the genuineness of the signature?
E. Whether the lower appellate court failed to exercise its mind in regard to the issuing of a notice under section 479A Cr. P. C. done by the trial court inspite of the fact that the attention of the lower appellate court was drawn towards it?
F. Whether the genuineness of the agreement to sell be adjudged by the fact that the plaintiff was allowed to go into possession after the execution of the agreement to sell?
G. Whether after the proof that the signature of the vendor existed on the agreement to sell the rest of the evidence adduced by the defendants became meaningless?”
4. Having gone through aforesaid amendment and question formulated therein, I am of the view that all these questions which he proposes to raise basically involve disputed questions of fact.
5. Moreover, in the present case both the Courts below have given concurrent findings of fact.
6. Plaintiff-appellant preferred Original Suit (hereinafter referred to as 'O.S.') No.89 of 1971 in the Court of Civil Judge, Azamgarh for specific performance of agreement to sale, which allegedly was executed between plaintiff and defendant 1 on 11.01.1971 after payment of a sum of Rs.4000/- towards consideration. The relief sought for in the suit is :-
^^v&fMxzh rdehy eqvkfgnk c; cgd+ oknh f[kykQ izfroknhx.k bl fc"k; dh lkfnj QjekbZ tkoS fd izfroknh x.k U;k;ky; }kjk fuf'pr vof/k ds vUrxZr oknh ls cfd;k tjleu eq0 4000&00 :i;k ysdj o eqcfyx 8000&00 :i;k iwoZ izkIr /ku dks Lohdkj dj oeqtjk vkjkft;kr o edku uStkbZ dk c;ukek cgd+ oknh rgjhj o rdehy o jftLVjh djk nsosaA clwjr dkflj jgus U;k;ky; Lo;a vkjkft;kr o edku uStkbZ dk c;ukek cgd+ oknh rgjhj o rdehy dj jftLVjh dj nsosaA c& ;fn fdlh dkj.ko'k oknh nknjlh v{kj ¼v½ dk eqLrgd u le>k tkos ml voLFkk eas ctk; nknjlh ¼v½ ds fMxzh fnyk ikuss eq0 8000&00 e; lwn nkSjku o vkbUnk cgd+ oknh f[kykQ izfroknh uEcj 1 lkfnj QjekbZ tkosA l& dqy [kpkZ eqdnek ftEek izfroknhx.k vk;n fd;k tkosA^^ “(a) That decree against the defendants for execution of the agreement of the sale deed in favour of the plaintiff, be passed and the defendants be directed that on receipt of the remaining amount of Rs.4000/- and accounting the amount of Rs.8000/- received earlier (as sale consideration) the defendants execute the sale deed of the disputed house and the plots in favour of the plaintiff within the time limit prescribed by the court. In case, they fail to do so, the Court itself may get the sale deed executed of the plot and disputed house in favour of the plaintiff.
(b) If for any reason, the plaintiff is not found entitled for the relief sought at 'A', in such situation, instead of allowing the relief sought at 'A', a decree in favour of plaintiff may be passed to return the sum of Rs.8000/- along with the pendente lite and future interest.
(c) Total cost of the suit be awarded from the defendants.”
(English Translation by Court)
7. Trial Court framed following issues for determining the suit :
“1. Whether the defendant no.1 had agreed to sell the property in suit on 11.1.1970 and executed the agreement as alleged?
2. Whether the plaintiff paid Rs.8,000/- in advance to defendant no.1 on the above date?
3. Plaintiffs relief?
4. Whether defendant no.2 is bonafide purchaser for value and without notice?”
8. While considering Issues 1 and 2, Trial Court has recorded findings that possession thereof as claimed by plaintiff was not delivered at the time of alleged execution of agreement to sale. The findings recorded by Trial Court in this regard read as under :
“I have already dealt with all the circumstances about fictitiousness and suspicious circumstances of this document, hence, I do not feel any necessity to repeat them here. I have also dealt with the credibility of the witnesses of plff. and payment of consideration above, hence I do not want to repeat here. As regards offering of Rs.4,000/- is concerned and execution of sale deed in favour or defendant no.2 are concerned I, find that the plaintiff had tried to say that he had arranged for Rs.4,000/- after selling property at Dama village but his sale deed Ex.9 shows that he had sold those properties for payment of some debt and purchase of bullock etc. and had he sold those plots for execution of sale deed for the properties in suit, then he would have surely got this fact mentioned in this deed. His deposition further shows that he had sold these plots on 7.6.1971 but he did not insisted upon the defendant no.1 to get sale deed in his favour in that month and in this way, he let the sale deed in favour of defendant no.2 executed on 6.7.1971 and 16.7.1971 for Rs.13,500/- and it was only in the month of August that he had come to know about these sale deeds. It was very strange that he had slept over his rights in this way for such a long period and was not serious at all for getting sale deeds in his favour. If, his allegation that he had come to know about the sale-deed in question in the month of August i.e. on 4.8.1971 which are registered one is believed, then now can it be believed that defendant no.1 could know about unregistered agreement of sale in the month of January. The plaintiff has produced Srinath Singh on this point also and he said that after 4-5 months of the agreement of sale the defendant no.1 demanded Rs.4,000/- from the plff. And to get sale deed executed from him but the plnff. informed him that he was making arrangement for money and when the plff. had arranged for Rs.4,000/-, then the defendant no.1 had promised to execute sale deed within 1 month i.e. in the month of July. If, we believe this fact to be true, then it is not understood as to why the plaintiff did not try and get the sale deed executed in the month of July or why he did not serve any notice for this purpose. Thus, all this theory appears to be merely a concoction and cannot be believed.
As regards delivery of possession of the plots in suit is concerned I, find that the plaintiff has examined himself and Shyama Singh on this point. If, we peruse their statement, then we find that they have made material contradiction about the area of the plots and the crops were grown therein, hence their evidence is not worth reliance and it may be presumed that they have got no knowledge about the plots in suit nor the plaintiff was ever delivered possession of the plots in suit as alleged by him. On the other hand the witnesses of defendants Jagarnath Singh D.W.1, Ram Roshan Singh D.W.2 and Rudra Pratap Singh D.W.3 deposed that defendant no.1 had been in possession of the properties in suit till execution of sale deeds in favour of defendant no.2 and thereafter, the deft.no.2 has been in possession of these properties and the plff. was never in possession of these plots. There is nothing in their cross-examination to disbelieve them.
I, therefore, find that the plaintiff was never delivered possession of the plots in quit at the time of execution of agreement of sale.
If, we examine the disappearance or non-production of this document in the court, then we find that it was not filed in the Office of this court on the date of suit and even up to 30.8.1971 and it was only on 30.8.1971 when an application for sealing that document was made in the office of this court that the office had come to know about the disappearance or non-production of this document. The general index and other record of the case show that this document was not at all filed by the plaintiff in this court. Had it been so, then it would have been entered in the general index or index and in the register of documents with the Munsarim and would have been kept in the box but we, find no such facts on record, hence it is clear that this document was not produced and if, it was produced, then it was taken away by the plff. himself with the Roman copy of it and it was sent by him through Post on 23.10.1971 and it was received by his lawyer on 25.10.1971 and it was produced in this court on 26.10.1971. It is admitted by Kalika Singh, the clerk of Sri Chandi Prasad, Advocate and plaintiff himself said that his document was filed on 26.10.1971 in presence of the plff, who had come thereon that day. The application further shows that this clerk had sought time for payment of some court fees on the grounds of illness of plff. one day before filing this document. The record further shows that there is no old list of document with which this document was filed by the plaintiff and a quite new list was prepared on 26.10.1971 and it was filed in this court.
In this way, the entire record of the case and the evidence of Kalika Singh clerk and plaintiff clearly show that the plff had taken these documents with or without his knowledge and it was not produced in the office of this court on the alleged date and he had waited for a long and thereafter, he had sent them by Post to his counsel. The contention of the learned counsel for the plaintiff that it might have been removed by the defendants does not appear to be correct and reasonable. If the defendants had removed it then they would have burnt it or destroyed it, otherwise or they would have made some altercations in this document and there was no need for them to send this document to the lawyer of the plaintiff in this way and they would have sent it either to their own lawyer or to the Office of this court. I, therefore, find that this document was not produced by the plaintiff as alleged by him on the date of suit and it was sent on 23.10.71 to his counsel.
In view of my above discussion I, decide both these issues in negative.”
9. Thereafter, issue 4 has been answered in affirmative, hence, plaintiff was granted no relief as prayed by him. Plaintiff-appellant preferred Civil Appeal (hereinafter referred to as 'C.A.') No.09 of 1973 which has been dismissed by Sri S. P. Sharma, District Judge, Azamgarh in judgment and decree dated 13.09.2014 concurring with the findings of Trial Court.
10. Lower Appellate Court has adjudicated appeal on all the four issues which were answered by Trial Court and has confirmed findings recorded by lower trial Court.
11. Sri Bipin Lal Srivastava, learned counsel for appellant submitted that there is a finding recorded by lower Appellate Court that there is similarity in the signatures and still it has proceeded to hold that agreement to sale was not executed by defendant-respondent therefore, this finding is perverse. In this regard reliance has been placed on judgment of this Court passed in Darshan Singh v. Parbhu Singh, AIR (33) 1946 Allahabad 67.
12. Courts below have given enough reasons to discard agreement relied by appellant and no perversity or misreading etc. could be shown by learned counsel for appellant.
13. In view of aforesaid, I am of the view that no substantial question of law has arisen in this appeal.
14. Dismissed.
15. Interim order, if any, stands vacated.
Order Date : 19.12.2018 Manish Himwan