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2000 DIGILAW 723 (ALL)

KHALIL AHMAD v. . NAUROZY

2000-05-12

P.K.JAIN

body2000
P. K. JAIN, J. ( 1 ) THIS is the plaintiffs second appeal against the judgment and decree dated 28. 3. 88 passed by the trial court dismissing Suit No. 731 of 1986 and against the judgment and decree of the lower appellate court dismissing first appeal on 9. 2. 2000. ( 2 ) DEFENDANT Baitul Hasan died during the pendency of the first appeal and his heirs and legal representatives, the present respondents were substituted. ( 3 ) THE plaintiff filed suit for specific performance of the contract with the allegations that defendant Baltul Hasan was bhumidhar plot Nos. 175 and 275-Kha described In the plaint and had executed an agreement to sell on 13. 6. 84 in favour of the plaintiff for sale of the land of the said plots. He had received a sum of Rs. 16,000 at the time of entering into the contract and Rs. 2. 000 at the time of registration of the agreement to sell. According to the terms of the contract, the balance of Rs. 2. 000 were to be paid within a period of two years from the date of the registration of the agreement and the sale deed was to be executed within the said period. The defendant avoided execution of the sale deed on one or the other ground even though the plaintiff was ready to perform part of his agreement. ( 4 ) THE defendant contested the suit on the ground that the plaintiff carries on the business of money lending and has no licence and in order to secure his money advanced to various debtors, he gets a document in the form of agreement to sell executed and when the amount is repaid along with interest, the document is returned by him. In the year 1981, the defendant had taken a loan of Rs. 3. 000 from the plaintiff and a similar document was got executed. The defendant had been paying interest but he could not repay the principal amount. The plaintiff, therefore, got another document executed and went on changing the document in similar manner. The defendant had never agreed to sell his land and he never received a sum of Rs. 16,000 from the plaintiff. The value of the land was around Rs. 2. 25. 000 and a tube-well was installed on the land of the plaintiff and there also existed certain constructions. The defendant had never agreed to sell his land and he never received a sum of Rs. 16,000 from the plaintiff. The value of the land was around Rs. 2. 25. 000 and a tube-well was installed on the land of the plaintiff and there also existed certain constructions. ( 5 ) THE plaintiff filed replication stating that the tube-well of the defendant was installed in another piece of land, that on 20. 12. 81 the defendant was paid Rs. 1. 000, on 28. 12. 81 he was paid Rs. 3. 000. on 6. 7. 83 he was paid Rs. 4. 000 and on 20. 4. 84 he was paid Rs. 8,000 and lastly on 13. 6. 84 he was paid a sum of Rs. 2,000, and that is how a sum of Rs. 18,000 was received by the defendant as advance. ( 6 ) THE trial court framed a number of Issues. On consideration of the evidence adduced by the parties. the trial court held that the plaintiff has not come with clean hands and he did not speak of earlier two agreements either in the plaint or in the replication. The trial court further observed that from the pleadings of the plaintiff, it appears that he declared that the advance of Rs. 16,000 was made at one time when agreement to sell was arrived at and Rs. 2,000 was paid at the time of registration of the document whereas the evidence of the plaintiff is otherwise. After discussing the evidence at length and referring to the admission of the plaintiff that he got similar agreement executed with several other villagers and that he never got the sale deed executed in his favour, the trial court had recorded a finding of fact that the plaintiff has failed to prove that there was an agreement to sell between the parties whereas on the other hand, the defendant has admitted that he had taken the loan which he could not repay the same and, therefore, the present document was got executed. The trial court has also held that even though the registered document was admissible in evidence under Section 60 of the Indian Registration Act, it did not lead to un-rebuttable presumption of due execution of the document. The trial court, therefore, dismissed the suit. ( 7 ) THESE findings of fact have been affirmed by the lower appellate court. The trial court has also held that even though the registered document was admissible in evidence under Section 60 of the Indian Registration Act, it did not lead to un-rebuttable presumption of due execution of the document. The trial court, therefore, dismissed the suit. ( 7 ) THESE findings of fact have been affirmed by the lower appellate court. The lower appellate court further held that there was no proper compliance of the provisions of Section 16 (c) of the specific Relief Act. It also held that the defendant was an Illiterate person. The provisions of section 58 of the Indian Registration Act were not complied with inasmuch as Registering officer had not explained the contents of the documents to the defendant. The Judgment and decree of the trial court was, therefore, affirmed by lower appellate court. ( 8 ) SRI Santosh Kumar, learned counsel for the appellant has vehemently argued that the lower appellate court rejected the application for additional evidence. He has also submitted that under section 60 (2) of the Indian Registration Act the document was admissible in evidence and there would be presumption of its due execution once it was registered. ( 9 ) AS already pointed out above, there are concurrent findings of fact that the defendant never intended to sell his land and it was the practice of the plaintiff to obtain such documents in the form of agreement to sell in order to secure his money advanced as loan to various debtors. These findings of fact are. to some extent, substantiated by the plaintiffs own admission during cross-examination. Section 60 (2) of the Indian Registration Act, no doubt, provides that certificate given under sub-section (1), after it has been signed, sealed and dated by the registering Officer, shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act. and that the facts mentioned in the endorsements referred to in Section 59 have occurred as mentioned therein. It is, however, well-settled that certificate given under Section 60 of the Act is simply an evidence of due registration of the document and also some evidence of the execution against the party so making the admission. However. It has been held in a number of cases that the certificate may be sufficiently conclusive when there is no evidence to throw any doubt upon the execution. However. It has been held in a number of cases that the certificate may be sufficiently conclusive when there is no evidence to throw any doubt upon the execution. The presumption under sub-section (2) of Section 60 of the Act is rebuttable presumption and In the instant case as already pointed out above, the courts below on consideration of the evidence adduced by the defendant as well as the admission of the plaintiff have recorded a categorical finding that the presumption of the due execution of the document stood rebutted as the Courts below have concurrently held that the document in question was got executed in order to secure the loan amount advanced by the plaintiff. ( 10 ) IN the above facts and circumstances, the appeal is devoid of merit. No substantial question of law is involved. The appeal is, therefore, dismissed. .