Jagdish Prasad And Ors @APPELLANT@Hash Kalyan And Ors

This second appeal is directed against the judgment and decree dated 11.03.2016 passed by District Judge, Tonk whereby the learned appellate court

dismissed the appeal filed by the plaintiff-appellant and confirmed the judgment and decree dated 28.04.2011 passed by Civil Judge (Junior Division),

Devli whereby the trial court dismissed the suit filed by the plaintiff-appellant.

Brief facts giving rise to this appeal are that the plaintiff-appellant filed a suit for specific performance against the defendants wherein it was stated

that an agreement to sell (Ex.-1) was executed by defendants with regard to agricultural land mentioned in para one of the plaint on 14.01.1994 and a

total amount of consideration i.e. Rs.15,001/- was received by the defendants and possession of the disputed land was also handed over to the

plaintiff-appellant by the defendants.

The defendants resisted the suit by filing the written statement. They have denied the execution of agreement to sell dated 18.05.1982 and it is

submitted that the same is forged and fabricated. It is also stated that defendant No.3 Kana was not in India when the alleged agreement to sell was

executed. This fact itself shows that the agreement to sell is forged and fabricated.

Necessary issues were framed by the trial court.

Both the parties adduced oral as well as documentary evidence. Thereafter, the learned trial court dismissed the suit vide judgment and decree dated

28.04.2011. Aggrieved by the judgment aforesaid, the plaintiff-appellant filed the first appeal before the appellate court. The same was dismissed vide

impugned judgment and decree 11.03.2016.

Hence, this second appeal.

It is submitted by the learned counsel for the appellant Shri Praveen Kumar Jain that sufficient evidence is available on record which proves the

execution of agreement to sell (Ex.-1). It is also submitted that vide applications dated 05.04.2005 and 17.12.2005, it was prayed that attesting witness

Gopal Bhardwaj may be called but the same was wrongly rejected by the trial court. It is a case of total misreading and non-reading of material

evidence. Therefore, this appeal may be admitted on the substantial question of law formulated in the memo of appeal.

I have heard learned counsel for the appellant.

The case of the plaintiff is based on an agreement to sell (Ex.-1) wherein it is stated that the suit land belongs to defendants No.1 & 2 and they have

agreed to sell it to the plaintiff for a consideration of Rs.15,001/-. The version of the defendants is two fold. Firstly, it has been pleaded that one of the

co-ower of the land namely, Kana was out of India on the date of execution of the agreement and secondly it has been pleaded that the defendant did

not execute the above agreement and hence, the same is forged and fabricated. In view of these pleadings, it was mandatory for the plaintiff to

examine the scribe of the agreement (Ex.-1) and at least one the attesting witness. However, the plaintiff did not get them examined during trial.

Though, at one stage, the plaintiff submitted an application for summoning the scribe Gopal but the same was rejected by the Trial Court. Thereafter,

at the stage of rebuttal evidence, the plaintiff made an attempt to examine Gopal but the trial court refused to record his statement. Thereafter, the

plaintiff challenged that order by filing S.B. Civil Writ Petition No.513/2008 before this court and during its hearing, learned counsel for the plaintiff

submitted that plaintiff does not want to examine Gopal. In this manner, it becomes clear that apart from his own statement the plaintiff has examined

two more witnesses who are not attesting witnesses of the agreement.

Therefore, both the courts below have rightly held that the plaintiff has failed to prove (Ex.-1) agreement to sell. In view of the aforesaid, I find no

substance in the submissions of the learned counsel for the appellant.

A perusal of impugned judgments of both the learned courts below would reveal that while recording their findings, both the learned courts below have

properly appreciated the evidence available on record in accordance with law. Thus, the findings recorded by the learned courts below being findings

of facts require no interference of this Court in second appeal. This Court is of the view that no question of law, much less any substantial question of

law is involved in the instant second appeal hence, the same is liable to be dismissed at admission stage.

The second appeal is dismissed accordingly.