Research › Search › Judgment

Allahabad High Court · body

2001 DIGILAW 631 (ALL)

MADHO PRASAD v. RAM CHANDRA

2001-07-06

U.S.TRIPATHI

body2001
U. S. TRIPATHI, J. ( 1 ) THIS second appeal has been preferred against the judgment and decree dated 25. 8. 1992. passed by VIIth Additional District Judge. Azamgarh in Civil Appeal No. 329 of 1986 allowing the appeal and setting aside the judgment and decree dated 31. 5. 1986 passed by Munsif City. Azamgarh in Original Suit No. 310 of 1979 decreeing the suit for specific performance. ( 2 ) MADHO Prasad, appellant (hereinafter called the plaintiff), filed Suit No. 310 of 1979 against ram Chandra and Smt. Bibbo Devi, respondents (hereinafter called the defendants), for specific performance of contract and in the alternative for refund of Rs. 6,000. the earnest money and for damages amounting to Rs. 1. 000 mainly on the ground that he was tenant In house in suit on monthly rental of Rs. 5 for last 20 years. The defendants were in need of money for marriage of their daughter and. therefore, they agreed to sell the house in suit in favour of. plaintiff for Rs. 9. 000 and executed an agreement to sell on 17. 3. 1976 after receiving a sum of Rs. 6,000 as earnest money. The defendants did not execute sale deed despite of service of notice dated 31. 7. 1978 and, therefore, he filed the suit. ( 3 ) THE defendants contested the suit on the ground that the plaintiff was their tenant in a portion of house in suit on monthly rental of Rs. 40 and S. C. C. Suit No. 57 of 1978 for his ejectment and for recovery of rent was filed against him which was pending. The defendants never agreed to sell the house in suit in favour of plaintiff, nor executed any agreement to sell. They had not signed any such document. The price of the house Jn suit was Rs. 40. 000 and there was no occasion for the plaintiff to sell the same only for Rs. 9. 000. ( 4 ) THE learned Munsif decided the Original Suit No. 310 of 1979 and S. C. C. Suit No. 57 of 1978 by a common judgment. He framed necessary issues and on considering the evidence of the parties, held that the defendants agreed to sell the house in suit in favour of plaintiff for a consideration of Rs. 9. 000 and in lieu of it, the defendant No. 1 executed agreement to sell dated 17. He framed necessary issues and on considering the evidence of the parties, held that the defendants agreed to sell the house in suit in favour of plaintiff for a consideration of Rs. 9. 000 and in lieu of it, the defendant No. 1 executed agreement to sell dated 17. 3. 1976, after receiving a sum of Rs. 6,000 as earnest money. He further held that after execution of agreement deed, there was no necessity for the plaintiff to pay rent to the defendants. The landlord also failed to prove that rate of rent was Rs. 40 per month. Therefore, the plaintiff/tenant was not defaulter In payment of rent. With these findings, he decreed the suit of plaintiff for specific performance and dismissed the suit filed by defendants for ejectment and arrears of rent and damages. ( 5 ) AGGRIEVED with the above Judgment and decree the defendants filed Civil Appeal No. 329 of 1986 against the judgment and decree of Suit No. 310 of 1979. The lower appellate court, on reappraisal of the evidence of the parties, held that the finding of the learned Munsif that the agreement of sale was executed by the defendant No. 1 was not correct and the evidence on record proved that defendant had no need of money In March. 1976, which he could get only after disposal of the disputed property. Admittedly, the plaintiff was tenant in the disputed house. He fell in arrears of rent and a notice of demand and ejectment was served on him and a suit for ejectment and recovery of rent was also filed. The plaintiff in order to get rid of S. C. C. suit, prepared a fictitious agreement of sale and filed the suit. The agreement to sell was a result of fraud and on the basis of it, the plaintiff was not entitled to relief claimed for. The findings of the learned Munsif on question of fact was wholly erroneous and could not be maintained. He further held that since agreement to sell was fictitious and sham document, no other questions required to be investigated in the appeal. With these findings the lower appellate court allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit of the plaintiff for specific performance of contract and damages. He further held that since agreement to sell was fictitious and sham document, no other questions required to be investigated in the appeal. With these findings the lower appellate court allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit of the plaintiff for specific performance of contract and damages. ( 6 ) THE above judgment and decree of lower appellate court have been challenged in this second appeal. ( 7 ) HEARD Sri Prakash Chandra, learned counsel for the appellant and Sri A. R. Singh. learned counsel for the respondents and perused the record of lower court. ( 8 ) IT was contended by the learned counsel for the plaintiff/ appellant that the plaintiff and attesting witnesses had proved the execution of agreement deed and the defendant No. 1 had also admitted his signature as well as signature of attesting witnesses on the said deed. Meaning thereby he also admitted execution of the deed, but the lower appellate court wrongly overlooked the above evidence and admission of the defendant. He further contended that admission is binding on the person making the same and it is a best evidence against the maker unless it is successfully withdrawn or proved erroneous. That the defendant. who executed agreement deed could not successfully withdraw the above admission and also could not prove that the above admission was erroneous and, therefore, the execution of agreement deed was admitted and the lower appellate court wrongly reversed the finding of the trial court on this point, which is a substantial question of law involved in this appeal. On the other hand, the learned counsel for the defendants/ respondents contended that there was no such admission on the part of the defendant and the trial court has wrongly observed that defendant admitted his signature and the signature of attesting witnesses on the agreement deed. The learned Munsif has held that the execution of agreement deed was proved. The finding of the trial court in this regard is as below : "prativadi muahida ko swikar karte hue vibadit muahtda-shuda makar ki chauhaddi bataya. Is prakar se pratlvadi ne apni dastakhat wa katib gawahon ki dastkhat muahida par hona aur uska tahrir hona swikar kiya. The learned Munsif has held that the execution of agreement deed was proved. The finding of the trial court in this regard is as below : "prativadi muahida ko swikar karte hue vibadit muahtda-shuda makar ki chauhaddi bataya. Is prakar se pratlvadi ne apni dastakhat wa katib gawahon ki dastkhat muahida par hona aur uska tahrir hona swikar kiya. " ( 9 ) THE lower appellate court has reversed the above finding of fact and observed as below : "in the present case, the plaintiff has utterly failed to prove the reasons for settlement or sale of the disputed property. He has failed to prove that he paid anything as earnest money to the defendants. He has failed to prove the due execution of the disputed agreement of sale by defendant and he has also given no explanation as to why the sale deed was not executed immediately when the settlement of sale was made. Nothing has been explained on these points before me. The defendant has examined himself and has denied the execution of agreement of sale. He has produced an expert report to show that the disputed agreement of sale does not bear his signature. The statement of P. W. 3, who is said to be an attesting witness of the disputed document is also not worth reliance. Even his presence on the alleged date of execution appears to be highly improbable. Therefore, I do not subscribe to the view of the learned Munsif that the agreement of sale was executed by the defendant No. 1. ( 10 ) THE relevant portion of the evidence of defendant Ram Chander (D. W. 2), which was treated by the learned Munsif as his admission is as under : "asal muahida par gawahon ki bant dastkhat maine dekha hai aur mukir ki dastkhat aaj dekha hat Aaj se pahle bhi maine asal muahida muwaina kiya to us waqt bhi dekha tha uspar maine apni dastkhat dekha tha logo ki dastkhat dekha tha. " ( 11 ) THE above statement of the witnesses cannot be treated as his admission as he has no-where admitted that the document in question bears-his signature as well as signature of attesting witnesses, iris settled law that admission should be clear, unambiguous and unequivocal. " ( 11 ) THE above statement of the witnesses cannot be treated as his admission as he has no-where admitted that the document in question bears-his signature as well as signature of attesting witnesses, iris settled law that admission should be clear, unambiguous and unequivocal. If the witness said that he had seen his signature and the signature of attesting witnesses, it means that he was shown as to whose name (signature) was made on the deed and if he admitted to have seen the signature, It does not mean that he had admitted that the signature mentioning his name was actually made by him. ( 12 ) IN this way, the lower appellate court has rightly set aside the above finding of the trial court. Moreover, the lower appellate court has also considered the expert report submitted by the rival parties as well as interpolation made in the agreement deed and on overall reappraisal and assessment of the evidence, he recorded a finding of fact that plaintiff could not prove execution of agreement deed. The evidence on record also shows that no two views were possible and it can also not be said that the appellate court took other view, which did not find favour of the trial court. In fact, the trial court had misread the statement of the defendant, wrongly treated the same as admission and made wrong appraisal of the evidence of the witnesses of the plaintiff. The lower appellate court has thus set aside the finding of fact regarding execution of agreement deed on sound and valid reasons, which are on the basis of evidence on record. Therefore, there was no question of ignoring the admission and no substantial question of law is involved in the appeal. ( 13 ) THE plaintiff failed to prove execution of agreement deed by defendant No. 1, and therefore, no other point needs consideration. ( 14 ) SINCE no substantial question of law is Involved in this second appeal, it is liable to be dismissed. ( 15 ) SECOND appeal is, accordingly, dismissed summarily. .