JUDGMENT 1. - The defendant has field this appeal, against the judgment and decree of Additional Dist. Judge No. 2, Udaipur dated 11.8.2000 decreeing the plaintiff's suit for specific performance of the contract. 2. Brief facts of the case are, that according to the plaintiff, as pleaded in the original plaint, on 27.4.1994, an agreement to sale was entered into by the defendant, with respect to property mentioned in para 1 of the plaint. According to the plaintiff, the sale was for a price of Rs. 1,90,000/-, a plan of the house was enclosed with the agreement, which was duly signed by the defendant. It was then alleged, that out of the sale consideration, a sum of Rs. 1,45,000/- was paid at that time, because part of the premises was in possession of the tenants, while part of it was under mortgage, and the defendant was required to obtain possession. The balance amount was to be paid at the time of registration of the document. Thus according to the plaintiff, he always was, and is, ready and willing to perform his part of the contract, but the defendant always avoided, on 17.7.1995 the plaintiff got published a public notice in the local daily newspaper Pratakhal, and thereafter on 12.9.1995, sent a notice in the local daily newspaper Pratahkal, and thereafter on 12.9.1995, sent a notice by registered post, to perform agreement, but since the defendant did not do the needful, the suit was filed for specific performance. 3. The defendant contested the suit. Significantly the case of the defendant is, that no agreement was executed on 24.7.1994, rather since the defendant was in need of money for medical treatment, he proposed to sale three "Pattiposh' rooms, and an agreement to that effect was executed on 25 27.4.1994, aggregating the sale consideration to be Rs. 1,90,000/-, and out of which Rs. 10,000/- were received by the defendant, and balance amount was to be paid at the time of execution of the sale deed. His case further is, that a period of two months was stipulated in the agreement, with stipulation that in the event of failure on the part of the plaintiff, earnest money would stand forfeited. 10,000/- were received by the defendant, and balance amount was to be paid at the time of execution of the sale deed. His case further is, that a period of two months was stipulated in the agreement, with stipulation that in the event of failure on the part of the plaintiff, earnest money would stand forfeited. It is then pleaded, that since the defendant was suffering from mental disorder, and his hands and legs are not proper, is not in a position to write, or move, and therefore, on the agreement dated 27.4.1994, instead of putting signature, he has put his thumb mark, which was attested by one Motilal. It was also pleaded, that no site plan was there with the agreement dated 27.4.1994, and that since the time stipulated had expired, the plaintiff entertained dishonesty, and got another stamp purchased, and fabricated another agreement to sale dated 27.4.1994, while as a matter of fact, on that day, neither any agreement was executed, nor advance amount was received, nor defendant was in a position to append his signatures, and the very existence of the fact, of purported signatures of the defendant, on the agreement dated 24.7.1994, itself shows the dishonesty of the plaintiff. It was also pleaded that the plaintiff is concealing agreement dated .27.4.1994, whereby only three rooms were agreed to be sold for Rs. 1,90,000/-, while vide agreement dated 24.7.1994, entire house is purported to be agreed to be sold for a price of Rs. 1,90,000/-, which is an impossibility, and shows that the plaintiff taking advantage of the simplicity and helplessness of the defendant. It was also pleaded that the plaintiff never had the capacity to pay such a huge amount of Rs. 1,45,000/-, nor was it ever paid. Delivery of possession of any part of the premises was also denied. In additional pleas it was pleaded that the defendant assails the signatures on the agreement dated 24.7.1994, for which, he has lodged a first information report, in the Police Station Hiran Magri, which is pending investigation. The defendant relied upon the opinion of the Medical Board, about his inability to append signatures. Various other pleas were also taken. 4. In additional pleas it was pleaded that the defendant assails the signatures on the agreement dated 24.7.1994, for which, he has lodged a first information report, in the Police Station Hiran Magri, which is pending investigation. The defendant relied upon the opinion of the Medical Board, about his inability to append signatures. Various other pleas were also taken. 4. It may be noticed at this place, that the present suit was filed on 8.11.1995, and immediately thereafter on 13.12.1995 itself, the plaintiff filed an application for amendment of the plaint, seeking correction in para 4 and 7 of the plaint, on the ground of typing mistake, inasmuch as agreement was dated 24.7.1994, which came to be typed as 27.4.1994 in para 4, and 24.2.1994 in para 7. This amendment was allowed way back on 5.4.1996, and it was much thereafter, that on 6.12.1996, that written statement was filed. 5. On the basis of the pleadings of the parties, learned trial Court framed seven issues. Issue No. 1 was as to whether the defendant executed agreement on 24.7.1994, agreeing to sale the property in question for a price 20 of Rs. 1,90,000/- and received Rs. 1,45,000/-. The issue No. 3 was as to neither it was on 27.4.1994 that the defendant agreed to sale only three Pattiposh' rooms, for a price of Rs. 1,90,000/- and received Rs. 10,000/- as advance. Issue No. 4 was as to whether the agreement dated 24.7.1994 is forged, and on that basis the plaintiff is not entitled to any decree. Then issue No. 2 was as to whether the plaintiff is entitled to ask for specific performance of the contract and possession of the property. Issue No. 5 comprehended the question as to whether the plaintiff has not performed his part of the contract, and is therefore, not entitled to the decree, while issue No. 6 related to the question of entitlement of the defendant to special cost, and issue No. 7 was regarding relief. 6. During trial, the plaintiff examined himself, and also produced the two attesting witnesses of the agreement, being Ranjit Singh, P.W. 2 and Jagat Kumar, P.W. 3. While defendant examined himself as D.W. 1, produced his son as D.W. 2 Madanlal, and also produced one more witness D.W. 3 Shankerlal. 7. 6. During trial, the plaintiff examined himself, and also produced the two attesting witnesses of the agreement, being Ranjit Singh, P.W. 2 and Jagat Kumar, P.W. 3. While defendant examined himself as D.W. 1, produced his son as D.W. 2 Madanlal, and also produced one more witness D.W. 3 Shankerlal. 7. The learned trial Court decided all the issues in favour of the plaintiff, and decreed the suit, directing the plaintiff to pay the balance amount within one month, and directed defendant to receive the amount and execute the sale deed in favour of the plaintiff and deliver possession. It was also directed that in the event of failure of the defendant to receive the amount and execute the sale deed, the plaintiff would be entitled to have it executed through the Court. 8. I have heard learned counsel for the parties, and have also gone through the record, which was requisitioned by me vide order dated 4.9.2000, in view of the fact, that the plaintiff has already entered caveat and this being the first appeal. 9. After receipt of the record, the matter was adjourned for good number of dates. Then on last date, being 4.9.2003. learned counsel for the appellant sought time, to find out, as to whether any amicable settlement is possible outside the court, and the case was accordingly adjourned to 22.9.2003. However, the matter was argued today, as it was given out by the learned counsel for the appellant that amicable settlement could not be arrived at. 10. The main controversy in the present suit is, as to whether the agreement to sale was executed on 27.4.1994, or 24.7.1994, and as to whether, only three 'Pattiposh' rooms were agreed to be sold, or the entire house, as mentioned in Ex. 2, was agreed to be sold, as to whether the plaintiff has paid only Rs. 10,000/-, or Rs. 1,45,0001-, and as to whether agreement dated 24.7.1994 is forged one. Long drawn pleadings have been taken, but then they are cataloguing circumstances, in support, or opposition, of above questions, and on a proper comprehension of the pleadings. in my view, and even according to the learned counsel for the parties, these are the precise questions, which have been decided by the learned trial Court. 11. Admittedly, no document, as contended by the defendant, to have executed on 27.4.1994, has ever come on record. in my view, and even according to the learned counsel for the parties, these are the precise questions, which have been decided by the learned trial Court. 11. Admittedly, no document, as contended by the defendant, to have executed on 27.4.1994, has ever come on record. The plaintiff in his statement has clearly denied any such agreement to have ever been executed. 12. It is established law, that unlike criminal cases, civil cases are to be decided on the basis of preponderances of probabilities. 13. It is in the background of above legal principles that I propose to proceed, with considering the material on record, for deciding the above mentioned questions, arising in the present appeal. On the above controversies, three issues have been framed, being issues No. 1, 3 & 4. Though the learned trial Court has decided these issues separately, but then a proper reading of the judgment shows, that the findings are substantially based on the decision of issue No. 1. As such, in order to avoid any confusion, I propose to decide all these issues No. 1, 3 and 4 together. 14. The plaintiff as P.W. 1 has clearly deposed about the execution of document Ex. 1, Ex. 2 being annexed therewith, and both these documents being bearing the signatures of the defendant, and the agreement having been duly attested by the witness. He has also deposed to have paid Rs. 1,45,0001-, at the time of execution of Ex.1. The plaintiff has also deposed to prove Ex. 3, yet another agreement, cum power of attorney, which is also of the same date. The plaintiff has been subjected to long cross examination, and the suggestions are, about no agreement being executed on 24.7.1994,and about the agreement having been executed on 27.4.1994, stipulating two months time, so also about the agreement dated 24.7.1994 being fabricated, which all suggestions have been denied by the plaintiff. The plaintiff was suggested about the incapacity of the defendant, to even properly write, this suggestion was denied, and it was clearly asserted, that the defendant had put his signatures on Ex.1, in his presence. Regarding FIR, in cross-examination it is clarified by the plaintiff, that the police had given final report. He has admitted that the defendant had given reply to the notice, and deposed that the reply was wrong. Regarding FIR, in cross-examination it is clarified by the plaintiff, that the police had given final report. He has admitted that the defendant had given reply to the notice, and deposed that the reply was wrong. It is in this sequence, that P.W. 2 and 3 have proved their attestation on the agreement. So far Jagat Kumar P.W. 3 is concerned, he, apart from being an attesting witness of Ex. 1, has a typical capacity, inasmuch as, he happens to be a close friend of the plaintiff, and a close relation of the defendant, inasmuch as defendant's wife, and his mother, are real sisters. This witness was cross-examined at length, and has denied that no agreement was executed prior to 24.7.1994. He has categorically denied any transaction to have been struck, to sale only three 'Pattiposh' rooms only on 27.4.1994. He has also denied the defendant's mental condition to be not proper. What is significant to note at this place is, that it was not been suggested to any of the witness, P.W. 1 to 3, that on 24.7.1994 a sum of Rs. 1,45,000/- was not paid. nor has it been suggested to P.W. 1 that the so called earlier agreement dated 27.4.1994 was with respect to three Pattiposh' rooms only. It is in this background, that the defence evidence is also required to be considered, bearing in mind, that it is not in dispute that a transaction was entered into between the parties, where under the defendant had agreed to sale, for a price of Rs. 1,90,000/-. The question is. as to what property was agreed to be sold, i.e. three rooms, or the entire property, and whether ls. 10,000/- were paid as an advance. or Rs. 1,45,000/- were paid, and it is in this background, that defendant's version in the pleadings. as noticed above, is that the agreement had expired, the plaintiff has fabricated this agreement. The defendant D.W. 1 has deposed, that he never entered into any agreement on 24.7.1994. rather the bargain was stuck on 27.7.1994. According to him the stamp was executed by Advocate Siroya. The transaction was for a sum of Rs. 1,90.000/-, and Rs. 10,000/-, were received. The defendant D.W. 1 has deposed, that he never entered into any agreement on 24.7.1994. rather the bargain was stuck on 27.7.1994. According to him the stamp was executed by Advocate Siroya. The transaction was for a sum of Rs. 1,90.000/-, and Rs. 10,000/-, were received. 15 He has deposed that "According to him the agreement was executed on 27.7.1994, he appends thumb mark, then he deposed that agreement was executed on 27.4.1994, on which date he had put his thumb mark, time stipulated was two months, and that he has not received anything beyond Rs. 10,000/-, possession of not even one room was delivered to the plaintiff. Then to bring on record the circumstances, to show agreement to be forged. he has deposed that his putting signature is stopped for the last 3-4 years. According to the defendant, at the time of execution of the agreement dated 27.4.1994, nobody was there. Then he has proved Ex.A-1, the certificate of the Medical Board, about his inability. This is the whole examination in chief of the defendant.In cross-examination, he has admitted the apartments in property being three rooms and one Chabutra on ground floor, Staircase. Lavatory, Bathroom and three rooms on the first floor. He has admitted Ex. 2 to be depicting correct picture of the property. But then he has reiterated that he did not get any plan prepared, nor any agreement was entered into on 27.4.1994. He has deposed that the original stamp of 27.4.1994 is being concealed by Mr. Siroya. But then he has admitted that this fact has not been mentioned in the written statement. Then he has deposed that the stamp is not with Mr. Siroya, and he does not know as to where the stamp is. He denied P.W. 3 to be in his any relationship. He maintained that he stopped putting signatures for the last 3-4 years, and since the time he has stopped appending his signatures, he is always putting thumb mark. He has admitted that on 24.7.1994 there was one tenant and two mortgagees of the property. Then he has made significant admissions, viz. that Bhagwati Prasad is his tenant, who deposited rent in the Court, which rent was withdrawn by the defendant on one occasion, and that the application for refund of amount, being Ex. He has admitted that on 24.7.1994 there was one tenant and two mortgagees of the property. Then he has made significant admissions, viz. that Bhagwati Prasad is his tenant, who deposited rent in the Court, which rent was withdrawn by the defendant on one occasion, and that the application for refund of amount, being Ex. 8, bears his signatures A to B. Then he has admitted that till the time when that application was filed, he used to sign. Then he has admitted C to D to be his signatures on the back side of Ex. 9. Then he has chosen to depose that he In as stopped putting signatures after about one year since 1995. He admitted the receipt of Ex.5, the notice, and the same to have been replied vide Ex. 7, but then in that reply, the stand taken is that the property belongs to his wife. He admitted to have not issued any contradiction of the newspaper publication, published as Ex.4. He failed to point out any distinction, in between signatures as appearing on Ex. 8 and 9, vis-a-vis the signatures appearing on Ex. 1 and 2. Then he has significantly admitted that he had agreed to sale the property mentioned in Ex. 9, to the plaintiff for a sum of Rs. 1,90.000/-, but then in that regard he did not sign any agreement. He admitted Ex.10 to be in his writing and C to ID to be his signatures, also signatures A to B on Ex. 11 and 13, he has again admitted that it is correct that he entered into the agreement to sale the house for a price of Rs. 1,90,000/-. At this place itself, I may refer to the aforementioned documents, as have been admitted by the defendant. Ex. 8 and 9 are of August, 1995, then, Ex. 11 is dated 23.7.1994, while Ex. 13 is dated 31.8.1994. Thus these two documents Ex. 11 and 13 are of the dates, anterior, and subsequent, to Ex. 1, and in very close proximity. This coupled with the existence of signatures on Ex. 8 and 9, it is clear that he has wrongly taken the stand that during the period when agreement Ex. 1 is said to have been executed, he was suffering from disability, having been disabled to sign, and therefore, had started putting the thumb mark only. This coupled with the existence of signatures on Ex. 8 and 9, it is clear that he has wrongly taken the stand that during the period when agreement Ex. 1 is said to have been executed, he was suffering from disability, having been disabled to sign, and therefore, had started putting the thumb mark only. It is unfortunate, that the defendant has suffered the disability, and is not in a position to put signatures, and puts thumb impression only, but then it is clear from the above circumstances, that he is clearly seeking to use this subsequently developed disability, as a weapon to disown Ex. 1, and is projecting it as a circumstance, to contend that the document is fabricated, which on the basis of the totality of the circumstances, cannot simply be believed. This coupled with the fact, that as noticed above, in his statement the defendant has clearly admitted that he had agreed to sale the house for a price of Rs. 1,90,000/-. Coming to the question as to what precise property was agreed to be sold, significantly as noticed above, in the examination in chief, he has clearly deposed that he does not know as to how many apartments were agreed to be sold, and then has deposed that the entire house was agreed to be sold With this statement of the defendant, this story also falls flat, that the transaction was for sale of three 'Pattposh' rooms; and admittedly the transaction was for a price of Rs. 1,90,000/-. In that view of the matter, it becomes dear, even from the statement of defendant himself, that the entire house was agreed to be sold, and was agreed to be sold at a price of Rs. 1,90,000h The question then comes is, as to whether Rs. 10,000/- were paid, or Rs. I ,45,000/- were paid. Significantly the defendant has not deposed that he did not receive Rs. 1,45,000/- under the agreement dated 24.7.1994. All that he has deposed is, that he executed the agreement on 27.4.1994, then changed to 27.4.1994, and has deposed to have received Rs. 10,000/-. In that view of the matter, again the question revolves around the point, as to whether the agreement dated 27.4.1994 was executed or not, and if that is proved to be executed, it also has to be believed, that Rs. 10,000/-. In that view of the matter, again the question revolves around the point, as to whether the agreement dated 27.4.1994 was executed or not, and if that is proved to be executed, it also has to be believed, that Rs. 1,45,000/- were paid on that day, as contained in the agreement and as contended in the plaint. 15. So far agreement Ex. 1 is concerned, from the evidence of the plaintiff is clearly established that it was executed and signed by the defendant, and that the defendant has come forward with the false story of his suffering from disability, disabling him from putting signatures. While admittedly he was putting his signatures till 1996. Even D.W. 2 has been produced only to depose his having not executed any agreement on 24.7.1994. Significantly he has gone a step ahead of his father, and has denied the signatures of the defendant on Ex. 3 to 14. Niany of which were so admitted by the defendant himself. Then he has chosen to depose that the defendant is not putting signatures, for the last 8-9 years rather 10 years, again far beyond what has been deposed by the defendant. Likewise D.W .3 has been produced to prove that the agreement was entered into on 27.4.1994, which fact was conveyed to him by the plaintiff. Significantly he has also deposed that the defendant has stopped signing for the last 8 years. Then he has deposed that he is not acquainted with the signatures of the defendant. Thus, in substance this witness has been produced to depose about, the plaintiff to have conveyed him that the transaction was entered into on 27.4.1994. In view of the fact that he has deposed the defendant to be not putting the signatures for the last 8 years, which is not even the defendant's case, and admits that he is deposing on the basis of the information conveyed to him by the plaintiff, his evidence cannot be believed, more so, when it has not been suggested to the plaintiff, that he had conveyed this fact to this witness. 16. Thus, on a proper appreciation of evidence, in my view it is clearly established, that the agreement Ex. 1, accompanied with the site plan Ex. 2, was executed by the defendant, he was paid Rs. 1,45,000/- in advance, there was no agreement executed on 27.4.1994, or Rs. 16. Thus, on a proper appreciation of evidence, in my view it is clearly established, that the agreement Ex. 1, accompanied with the site plan Ex. 2, was executed by the defendant, he was paid Rs. 1,45,000/- in advance, there was no agreement executed on 27.4.1994, or Rs. 10,000/- only were paid, and that the entire property as appearing in Ex. 2 was agreed to be sold for Rs. 1,90,000;-. 17. Since the findings on other issues have not been challenged before me by the learned counsel for the appellant. I need not go into other issues. 18. In view of the aforesaid discussion, I do not find any error in the findings recorded by the learned Court below, nor do I find any force in the appeal, and the same is, therefore, dismissed summarily.Appeal Dismissed. *******