Abdul Kalam vs Mayabai and others

M.K. Mudgal, J.—The appellant/plaintiff has filed the appeal u/s 96 of CPC against the judgment and decree dated 16.12.99 passed by the Court of Additional District Judge, Mungaoli, District Guna in Civil Suit No. 37-A/92 rejecting the suit for specific performance of the contract based on agreement to sell dated 13.2.90 (Ex-P/1). In this appeal appellant is referred as plaintiff and the respondent as defendant. The following undisputed facts have come on record that-

Harnam Singh was the husband of the defendant No. 1 Mayabai and father of defendant No. 2 Jaswant Singh and defendant No. 3 Bablu. When Harnam Singh died the defendants No. 2 and 3 were minor. Harnam Singh was owner of the disputed property which he had purchased vide registered sale deed dated 13.4.87 (Ex-P/5) from Kallu and two others.

Facts in brief of the plaint are that Harnam Singh entered into a contract to sell the disputed property on 13.2.90 for consideration of Rs. 31,000/-. The agreement of sale was executed by the Harnam Singh in favour of the plaintiff. Rs. 14,000/- were paid in cash. The plaintiff has further alleged that 6.5 horse power Kirlosicor Diesel Engine costing Rs. 7000/-, suction Pipe 25 ft. costing Rs. 500/-, Plastic Pipe 500 ft. costing Rs. 1250/-, water pipe 100 ft. costing Rs. 700/- and two oxen costing Rs. 3800/-, 5 quintal wheat costing Rs. 1700/- total cost Rs. 15,000/- were given to the plaintiff. Possession of the disputed property was also given by Harnam Singh vide agreement to sell Ex-P/1. Plaintiff requested Harnam Singh on 7.8.90 for executing the sale deed in his favour by issuing a registered notice to him but Harnam Singh falsely replied the notice and did not execute the sale deed as per agreement to sell. Plaintiff has further alleged that Harnam Singh died on 30.10.90 thereafter the suit was filed against his legal representatives defendant No. 1 to 3 for specific performance of the contract.

Defendant No. 1 neither contested the suit nor filed any written statement to deny the allegations of the plaint. On behalf of the defendant No. 2 and 3 being minor the written statement has been filed by their guardian ad litem appointed by the Court who denying all the allegations of the plaint has submitted that the plaintiff had never been ready and willing to perform the contract of sale as alleged in the plaint.

The learned trial Court after framing issues having considered the oral and documentary evidence has rejected the suit vide impugned judgment.

The following questions crop up for consideration in this appeal -

Whether Harnam Singh contracted to sale the disputed property in favour of plaintiff vide agreement dated 13.2.90 and handed over the possession of the disputed property to the plaintiff?

Whether plaintiff has paid as part consideration of money and other goods as alleged in the plaint?

Whether plaintiff had been ready and willing to perform the contract to sell before filing the suit.

Whether the findings of the lower Court are based on proper reasonings?

Learned counsel for the appellant has submitted that findings of the lower Court are not only based on proper reasonings but also perverse the recorded evidence as the allegation of the plaint have not been specifically denied on behalf of defendant. Besides, notice Ex-P/3 was given by the plaintiff to Harnam Singh vide registered receipt Ex-P/3 and Harnam Singh received the notice vide acknowledgment Ex-P/5. In spite of the fact that he did not execute the sale deed in favour of the plaintiff but lower Court has not considered the evidence properly in appreciation of the evidence. Learned counsel has further argued that no evidence has been produced on behalf of the defendant in rebuttal of the plaintiff evidence. In such a situation, the suit should not have been dismissed by the trial Court. Learned Counsel has further submitted that if decree of specific performance cannot be granted in favour of the plaintiff the decree for refund of the money may be passed.

Learned counsel for the respondent supporting the findings and reasoning given by the lower Court, has submitted that the plaintiff has utterly failed to prove the execution of agreement to sell Ex-P/1. The findings given by the learned lower Court are based on proper appreciation of evidence and reasonings on record evidence. Learned counsel has further submitted that no sufficient reason has been made out by the appellant in this appeal to interfere the impugned judgment and decree. Learned counsel further requested to reject the appeal and affirm the lower Court judgment.

Heard the arguments and perused the record.

Agreement to sell dated 13.2.90 is an unregistered document. It is true that registration of agreement to sell is not required under the provision of law but if the document is registered no suspicion arises regarding the execution of the document on particular date hence, it cannot be inferred that the document is prepared antedated. Plaintiff Abdul Kalam (PW/1) has deposed in para 1 and 2 of his statement that the late Harnam Singh contracted to sell the disputed property for consideration of Rs. 31,000/- and Ex-P/1 was executed by him. The witness has further stated that Harnam Singh required some money for household expenditure and so he agreed to sell the disputed property. The witness Bhure Khan (PW/2) has also deposed in the same manner and has stated that Ex-P/1 was prepared in his presence and he put his signature B to B on Ex-P/1 as a witness. Both witnesses have deposed that Harnam Singh put his signature A to A on Ex-P/1. The statement of both the witnesses have been cross-examined on behalf of the defendant and it has been challenged that the Ex-P/1 was not executed by Harnam Singh. Before filing the suit Harnam Singh died on 30.10.90 as stated in para 10 of the plaint owing to which, Harnam Singh could not appear to contest in the suit. After his death suit was filed on 14.12.90 against his legal representatives out of them defendants No. 2 and 3 were minor aged 5 years and 3 years respectively. Harnam Singh''s wife Mayabai defendant No. 1 had remained absent in the lower Court proceedings and exparte order was passed on 6.2.97.

Learned counsel for the appellant submits that no evidence has been produced on behalf of the defendants to rebut the plaintiff evidence, hence statement of the plaintiff''s witnesses should not have been discarded by the trial Court and trial Court has committed error in rejecting the suit.

Argument was considered. On perusal of the judgment, it becomes clear that the trial Court has minutely discussed the statement of the plaintiff''s witnesses in para 6 to 14. It has been stated in para 10 that as per plaintiff''s witnesses statement Rs. 14,000/- was paid in cash and articles described in para 4 of the plaint costing Rs. 15,000/- were given to Harnam Singh. The trial Court has disbelieved the aforesaid statement and the story put forth by the plaintiff on the ground that if Harnam Singh had needed a sum of money for his personal household expenditure why and how he accepted old articles as part consideration of the sale. Reasons assigned by the trial Court seems to be appropriate.

On perusal of Ex-P/1, it appears to be a suspicious document as statement of stamp vendor was not got recorded by the plaintiff. Moreover, the stamp of Ex-P/1 was not purchased by Harnam Singh for agreement to sell but the stamp was purchased by Pawan Tiwari who has not been examined by the plaintiff. Name of scriber has not been mentioned in Ex-P/1 and the scriber of the document was not examined also. Besides, no date has been mentioned in Ex-P/1 for performance of the contract. Why a specific date for performance of the contract was not mentioned in it. Why the date of performance of contract has been kept in abeyance. These facts also creates suspicion regarding the execution of the contract Ex-P/1. Plaintiff Abdul Kalam has deposed in para 2 that notice Ex-P/2 was given on 7.8.90 by his counsel to Harnam Singh but statement of Ghanshyam Satwari, Advocate was not got recorded by the plaintiff. Registered postal receipt dated 7.8.90 Ex-P/2 and acknowledgment receipt dated 1.10.90 Ex-P/4 have been produced on record which show that the notice was delivered to Harnam Singh. In para 7 of the plaint, it has been stated by the plaintiff that after receiving of the notice Harnam Singh sent reply and he denied having executed the agreement to sell and also denied getting cash amount as well as articles stated in the notice. By reading para 7 of the plaint, it gets clear that Harnam Singh specifically denied the contents of agreement to sell Ex-P/1. Reply of Harnam Singh which was in possession of the plaintiff has not been produced on record. Why it was suppressed by the plaintiff has not been explained. If Harnam Singh had been alive he would have been definitely contest the suit and denied the execution of agreement to sell Ex-P/1. But before filing of the suit he had already died. His legal representatives defendants No. 2 and 3 were minor. They were not in a position to contest the suit. His wife Mayabai did not also contest the suit. But in the circumstances, it cannot be inferred that the defendants have admitted the claim of the plaintiff because on behalf of minor defendants No. 2 and 3 the written statement was filed by their guardian ad litem appointed by the Court in which all the allegations made in the plaint have been specifically denied.

It would be pertinent to mention here also that the payment of cash amount has not been made by cheque or bank draft. No document showing to withdraw the cash amount for payment by plaintiff has been produced on record.

Considering the above facts, it can be deduced that the appreciation of evidence made by the learned trial Court is neither arbitrary nor perverse of the recorded evidence. Where the trial Court has used proper discretion in appreciation of evidence normally appellate Court should not interfere in the findings of the trial Court unless the findings are found perverse, arbitrary and contrary to the recorded evidence. Considering the facts, circumstances and the evidence produced by the parties, no illegality has been found in the impugned judgment in rejecting the plaintiff''s suit. As a result affirming the impugned judgment and decree of the lower Court, the appeal is hereby dismissed.

The appellant would bear the cost himself. Decree be drawn up accordingly.