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2006 DIGILAW 805 (JHR)

Jamuna Devi v. Shakuntala Devi

2006-07-05

N.N.TIWARI

body2006
JUDGMENT :- This appeal by the plaintiff-appellant-appellant is against the judgment and decree of affirmance passed by learned 6th Additional District Judge, Giridih in Title Appeal No. 5 of 2001 upholding the judgment and decree of learned Munsif, Giridih passed in Title Suit No. 209 of 1998. 2. The plaintiff filed the said suit, praying a decree for specific performance of the contract for sale of suit land appertaining to Khata No. 36 and 78, Plot Nos. 333 and 340, Holding Nos. 734 of Giridih. The plaintiffs case is that the said lands were offered for sale by the defendant to the plaintiff for a total consideration of Rs.24,000/-and agreement for sell was executed on 15-10-1998 and a sum of Rs.2000/- was paid to the defendant as advance. As per the agreement, the deed of sale was to be executed and registered by defendant No. 1 in favour of the plaintiffs after taking the balance consideration amount by 15-10-1999. In the meanwhile, the plaintiff came to know that the defendant No. 1 sold the said property to defendant No. 2 by executing a sale deed dated 17-11-1998. Hence the said suit was filed. 3. The defendants appeared and contested the suit stating inter alia that there was no such agreement for sale in favour of the plaintiff. No such agreement was ever executed by the defendant. It has been stated that deceased defendant Ram Prasad Sharma filed Title Suit No. 29 of 1987 against the plaintiff in respect of the suit property which was decreed and the appeal had been preferred by the plaintiff being Title Appeal No.84 of 1989. The defendant denied to have taken any advance. It was stated that the plaintiff is the tenant under the defendant No. 1 on the monthly rent of Rs.150/-. The defendant No. 1 sold the suit property in favour of the defendant No. 2 and she is the owner of the suit proper. 4. Though the issues were not properly framed, learned Trial Court discussed the relevant facts and evidences on record and after due consideration, recording a finding that the plaintiff failed to prove his case. The Trial Court dismissed the suit. The plaintiff, thereafter, preferred appeal in the Court of District Judge, Giridih, bearing Title Appeal No. 5 of 2001. 4. Though the issues were not properly framed, learned Trial Court discussed the relevant facts and evidences on record and after due consideration, recording a finding that the plaintiff failed to prove his case. The Trial Court dismissed the suit. The plaintiff, thereafter, preferred appeal in the Court of District Judge, Giridih, bearing Title Appeal No. 5 of 2001. The said appeal was finally heard and decided by the impugned judgment and decree, upholding and affirming the judgment and decree of the Trial Court. Learned Lower Appellate Court recast some of the issues, observing that though the issues framed by learned Trial Court are not proper and some relevant issues were not framed, yet sufficient materials are available on record for proper decision and it was not desirable to remand the case to the Trial Court. Issue No. V(a) and V(b) were specifically framed relating to the agreement, as to whether the document dated 16-7-1998 is an agreement for sale and the same is a concluded contract enforceable under the Specific Relief Act and whether the said agreement is a genuine or a forged and fabricated document. An issue was also framed as to whether the plaintiff is entitled to a decree for specific performance of contract in respect of the suit property described in Schedule 'A'. 5. After hearing the parties and after giving due consideration of the facts, relevant materials and the evidences on record, learned Lower Appellate Court specifically came to the finding that the plaintiff failed to prove execution of the agreement and the alleged agreement for sale is a fabricated document, prepared for the purpose of the suit. Learned Lower Appellate Court, decided the said issues and other relevant issues against the plaintiff and concurred with the findings of the Trial Court and dismissed the appeal. 6. Mr. P. K. Prasad, learned counsel appearing on behalf of the appellant, submitted that learned Lower Appellate Court has committed an error in recasting the issues and not remanding the case to the Trial Court for recording his findings on the said issues. Learned counsel further submitted that the judgment and decree of both the Courts are erroneous on account of not framing the relevant issues and not properly deciding the issues framed. Learned counsel further submitted that the judgment and decree of both the Courts are erroneous on account of not framing the relevant issues and not properly deciding the issues framed. The suit was for specific performance of the contract, but the Courts below have failed to frame the issue as to whether the plaintiff was ready and willing to perform his part of contract. Learned counsel submitted that the Courts below have erroneously held that the deed of agreement was not genuine and the same was forged. The said finding has been recorded only on the ground that the witnesses/scribe of the said document have not been examined. Though there are other evidences on record to validly prove the said document. 7. Mr. Lalit Kumar Lal, learned counsel appearing on behalf of the respondents, on the other hand, submitted that the judgment and decree of the Courts below are sound and there is no illegality or infirmity in the same. It was the specific case of the defendant that the agreement was forged and the defendant had never executed the agreement. That was the main controversy between the parties and both the parties proceeded on the said basis. The plaintiff failed to prove his case and learned Court below rightly found that the document of sale was a fabricated and forged document. Learned counsel submitted that the parties fully knew the exact issue involved in the case and tried to establish their respective stand and as such non-framing of proper issues by the Courts below is inconsequential and does not vitiate the judgment and decree of the Court below. Learned Trial Court as also learned Lower Appellate Court have concurrently found that the plaintiff failed to prove the deed of agreement for sale as a genuine document and declared the same as forged and fabricated document. In view thereof, framing or deciding the issue as to whether the plaintiff was ready and willing to perform his part of contract or not is immaterial for the decision of the suit. 8. After hearing learned counsel for the parties and on going through the materials available on record, I find that both the Courts below have discussed the facts, evidences and materials on record in detail and found that the plaintiff failed to prove the alleged agreement as valid and genuine. 8. After hearing learned counsel for the parties and on going through the materials available on record, I find that both the Courts below have discussed the facts, evidences and materials on record in detail and found that the plaintiff failed to prove the alleged agreement as valid and genuine. It has been concurrently held that the said agreement is forged and fabricated. It is true that learned Trial Court had not framed the issues properly, but the issues framed by the Lower Appellate Court on recast covered almost all the points in controversy between the parties and no prejudice has been caused to the plaintiff-appellant for not framing the issues properly by the Trial Court. Learned Lower Appellate Court has specifically held that since the plaintiff failed to prove the agreement, there was no question of grant of any decree for specific performance of the contract. The findings arrived at by learned Court below are well discussed and based on evidences and materials on record. I find no error or illegality in the impugned judgments and decrees giving rise to any substantial question of law to be framed and decided by this Court in this second appeal. This appeal is, accordingly, dismissed. Appeal dismissed.