Ramvir Chaudhary vs Bahadur

J.K. Maheshwari, J.—Heard on the question of admission.

This appeal is by the plaintiff directed against the judgment and decree dated 7.7.2004 passed by the Additional District Judge, Bhind in Civil Appeal No. 13A of 2004 confirming the finding recorded by Civil Judge Class I Bhind in Civil Suit No. 68A of 1994 vide judgment and decree dated 11.7.2003 by which, dismissed the suit filed by the plaintiff seeking specific performance of contract and to declare the sale deed executed by defendant no. 1 in favour of the defendants no. 2, 3 and 4 as null and void and not to interfere in his possession.

The plaintiff''s case in brief was that defendant no. 1 Sriram executed an agreement to sell on 15.6.1990 with respect to the agricultural land of village Udotgarh Tehsil Ater bearing Araji No. 462/1, 299/1 and 884 area 0.324, 0.230 and 0.052 Hectares respectively on consideration of Rs. 35,000/- out of which, Rs. 20,000/- has been received in advance towards consideration. It is further stated that the possession has already been delivered. On receiving amount of Rs. 15,000/- the sale deed agreed to be executed. It is said that the plaintiff was ready to pay the remaining amount of consideration for getting the sale deed executed in his favour but it was not executed. It is further stated that the defendant no. 1 executed a sale deed in favour of the defendants no. 2, 3 and 4 separately, however, their sale deed be declared null and void by decreeing the suit for specific performance and the defendants be restrained not to interfere with the possession of the plaintiff.

The defendants by filing written statement have denied the plaint averments and contended that they have purchased the land by registered sale deed on payment of amount of consideration and they are in possession of the land in question.

Learned courts below after framing issues and taking into consideration the evidence brought on record found that the agreement to sell was not found prove and the plaintiff is not in possession of the suit land. In such circumstances, the relief as prayed by the plaintiff was denied dismissing the suit. The said finding has been confirmed by the appellate court in toto, however, this appeal has been preferred.

Shri Mishra learned counsel representing appellant has strenuously urged that the finding recorded by the courts below regarding execution of agreement to sale is without due appreciation of evidence, illegal and perverse. It is his contention that the agreement to sell was not found prove. Merely the plaintiff has not signed the agreement is not enough as it was not required on the date of it''s execution. In such circumstances, this appeal may be admitted for final hearing. In addition thereto, it is his contention that he is in possession of the suit land, however, his possession ought to be protected.

Per contra, Ms. Bothra learned counsel representing respondents referring various paragraphs of the judgments of the trial court and of appellate court has argued in support of the finding of the two courts and urged that agreement to sell was not found legal and valid. If execution of the said agreement has not been proved by cogent evidence and the courts below have not found the appellant in possession of the suit land as per the revenue entries, in such circumstances, the finding of fact recorded concurrently by two courts do not warrant any interference. In view of the foregoing, it is urged that this appeal may be dismissed.

After hearing learned counsel for the parties and on perusal of record, it is apparent that the alleged agreement to sell Ex. P/1 has been filed by the plaintiff thereby, he is seeking decree of specific performance of contract, filing the suit. However, it is the duty of plaintiff to prove execution of said agreement bringing attesting witness in witness box but as testimony of the witness is ocular and do not inspire trust to prove the evidence, therefore, suit was rightly dismissed by two courts. To prove an agreement to sell, it is a finding of fact, if such finding is not perverse, interference is not warranted. Looking to the finding of the courts below, it is apparent that the agreement to sell itself has not been proved, however, the plaintiff has rightly been non-suited by two courts. Further, so far as possession of plaintiff is concerned, looking to the finding on the said issue by the trial court and appellate court, it is apparent that the possession of the appellant was not found and the order to record the name of the plaintiff passed by Naib Tehsildar has been set-aside by the appellate court which has been relied upon by the appellant. In such circumstances, the finding of fact on the point of possession concurrently recorded by two courts below do not warrant any interference. Therefore, the said finding is hereby confirmed.

In view of the aforesaid, I am of the considered opinion that no substantial question of law arises for consideration in this appeal, hence, it is dismissed at the admission stage.