JUDGMENT Beingaggrieved, the appellants have filed the aforementioned six appeals underSection 96 of the Code of Civil Procedure, 1908 challenging the judgment anddecree dated 14.05.2001 passed by the II Additional District Judge, Bhopal inCivil Suit No. 22-A/1997 and 23-A/1997, and also, the common judgment anddecree dated 05.10.2001 passed by the XI Additional District Judge, Bhopal inCivil Suit No. 45-A//2001,46-A/2001,47-A/2001 and 48-A/2001. By the impugnedjudgement and decree the aforesaid six civil suits seeking relief of specificperformance of the agreement to sell dated 30.08.1990, were decreed by thetrial Court. In addition to this, four sale deeds executed on 18.01.2001 by the defendants No. 2 to 5 in favour of defendants No. 7 to10 during the pendency of the civil suits were also declared as null and void. 2.The agreements to sell dated 30.8,1990 are six in number but with similar wordsby one intended seller in the name of different intended purchasers specifyingdifferent area with common attesting witnesses however the different suits werefiled by the intended purchasers stating similar facts and raising the commonissue. The two suits have been decided by the judgments and decreepassed on one date i.e. 14.05.2001 and four suits have been decided by acommon judgment and decree dated 05.10.2001. The counsel representing theparties present in the Court consented for analogous hearing because similarfacts and common question of law is involved in all the six appeals, therefore,all the appeals are being decided by this common judgments. 3.In each civil suit, there were ten defendants. The names and ranks of thesedefendants are common in each civil suit. All the six appeals have beenpreferred by defendants No. 2,3,4,5,7,8,9 and 10jointly. The defendant No. 1 - Kailash Agrawal and defendant No. 6 - State of M.P. in all the civil suits have been joined as respondents No. 2 and 3 in all the appeals. The respondent No. 1 in each of the appeals areplaintiff in respective suits, however, the appellants in all he appeals aredefendants No. 2 to 5 and 7 to 10 and be referred hereinafter as defendants.Similarly respondent No. 1 be referred as plaintiffsand respondents No. 2 and 3 be referred as defendants No. 1 and 6, respectivelyin each of the appeals. It is made clear here that Defendant No. 1 - KailashAgrawal even after service of notice has failed to put his defence and remainedex parte in the trial Court. It is made clear here that Defendant No. 1 - KailashAgrawal even after service of notice has failed to put his defence and remainedex parte in the trial Court. He has not led any evidence in suit and not preferredany appeal against the impugned judgments and decree. The plaintiff K.D.Maheshwari in EA. No. 54/2002 has died during the pendency of the appeal,therefore, L.Rs. have been substituted. 4.The undisputed facts are that Smt. Sushila Bai wife of Late Shri ChandmalAgrawal resident of Sagar was the owner of the land bearing Khasra No. 546 area9.03 acres, Khasra No. 547 area 15.5 acres and Khasra No. 548 area 3.48 acres;admeasuring total area 27.56 Acres situated at Village Godarmau, Tehsil Hazur,Dist. Bhopal. The aforesaid land was purchased by way of registered sale deeddated 29.04.1966 Ex. P-4A and her name was also mutated in revenue records asper Ex. P-3A. Smt. Sushila Bai died on 25.12.1992 while residing at Sagarleaving behind three sons namely Kailash Agrawal, Vinod Agrawal and JagdishAgrawal and also two daughters namely Usha and Sangita. The aforesaid six civilsuits were filed seeking a decree of specific performance of agreement to selldated 30.8.90 allegedly executed by Smt. Sushila Bai against her LRs, the defendants No. 1 to 5. The State of M.P. was joined as defendant No. 6. During the pendency of the civil suits, fourregistered sale deeds were executed on 18.01.2001 by the defendants No. 2 to 5 in favour of individual purchasers, however, they were allowed tojoin on 23/3/2001 asdefendant No 7 to 10. The defendant No. 1 - Kailash Agrawal, the eldest son ofLate Smt. Sushila Bai, has neither filed any written statement nor contestedthe six civil suits and also has not chosen to file any appeal challenging thejudgement and decree passed by the Trial Court. It is undisputed thatagreements to sell were executed in presence of plaintiff and not by the powerof attorney holder. It is also undisputed that the six civil suits were filedby plaintiffs without the aid of any power of attorney holder, however, lateron, one K.D. Maheshwari, who is plaintiff in the Civil Suit No. 48-A/2001 ,46 -A/2001 and 47-A/2001 as the power of attorney holder, tothe respective plaintiffs. The Civil Suit No. 22-A/1997, filed by Bharat KumarLathi, was prosecuted by Pankaj Maheshwari as Power of Attorney holder of thePlaintiff. The Civil Suit No. 22-A/1997, filed by Bharat KumarLathi, was prosecuted by Pankaj Maheshwari as Power of Attorney holder of thePlaintiff. It is also undisputed that in the five Civil Suits, the plaintiffshave refrained themselves from entering into witness box to prove the contents,correctness, genuineness and validity of individual agreement to sell allegedto have been entered in between Smt. Sushila Bai and the individual plaintiff.It is also undisputed that notice in writing was not issued by the plaintiffsor by the power of attorney holders either to Smt. Sushila Bai or to her legalheirs insisting and asking performance of agreements to sell. The readiness andwillingness by purchasing stamps for execution of the sale deeds and ready topay the registration charges was also never conveyed in writing either by theplaintiffs or by power of attorney holders. Neither Smt. Shushila Bai duringthe life time nor her legal heirs were communicated in writing to remainpresent in the office of Sub – Registrar for execution and registration on thesale deeds discharging their obligation. It is also undisputed that Smt.Sushila Bai was an old, infirm and widow lady, as her husband, Shri ChandmalAgrawal was died in the year 1986. 5.It is not out of place to note here that K.D. Maheshwari and Mahesh KumarMaheshwari both are the sons of Chhatralal Maheshwari. Smt. SuryakantaMaheshwari is the wife of K. D. Maheshwari, Pankaj Maheshwari and Ku. SangeetaMaheshwari both are brother and sister and son and daughter of K.D. Maheshwariand Ram Kumar Inani, Shyam Kumar Inani and Bharat Kumar Lathi also in theirrelation. However, the Power of attorney Bharat Kumar Lathi has been taken inthe name of Pankaj Maheshwari and Power of Attorney of Shyam Kumar Inani andRamkumar Inani is in the name of K.D. Maheshwari. 6.The facts of the case are that six agreements to sell dated 30.8.90 gotexecuted from Smt. Shushila Bai in the name of K.D. Maheshwari, Smt.Suryakanta, Miss Sangeeta Maheshwari, Bharat Kumar Lathi, Shyam Kumar Inani andRam Kumar Inani on the same date and time at one place at Bhopal .The details of Khasra Nos., area and of consideration in the aforesaid sixagreements to sell with Civil Suit Numbers are summarized as under for theconvenience: - S. No. Khasra No. Area in in acre Consideration on recited (in Rupees) Name of Purchaser Civil Suit No. 1. 548 3.48 58,000/- Bharat Kumar Lathi 22-A/97 2. 547 3.50 70,000/- Shyam Kumar Inani 23-A/97 3. 548 3.48 58,000/- Bharat Kumar Lathi 22-A/97 2. 547 3.50 70,000/- Shyam Kumar Inani 23-A/97 3. 547 4.00 80,000/- Smt. SuryakantaMaheshwari 45-A/01 4. 547 4.00 80,000/- Ram Kumar Inani 46-A/01 5. 546 4.50 90,000/- SangeetaMaheshwari 47-A/01 6. 546 4.50 90,000/- K. D. Maheshwari 48-A/01 7.In short, the case of the plaintiffs before the Trial Court was that, Smt.Sushila Bai wife of Late Shri Chandmal Agrawal has executed six individualagreements to sell in favour of six individual purchasers i.e. plaintiffs inrespect of different piece of land. These six agreements to sell were executedon 30.08.1990 at Bhopal before theNotary - T. R. Sharma at the residence of the defendant No. 1 - KailashAgrawal. The sale consideration, as recited in the individual agreement tosell, was paid in cash and the possession of the land in question was alsodelivered by Smt. Sushila Bai to the intended purchasers. These six agreementsto sell were commonly witnessed by two witnesses namely Deepesh Chandra Patniand Sharma Ji. The time was not the essence of contracts and this fact wasspecifically mentioned in para 6 of the agreements. The plaintiffs haverepeatedly asked Smt. Sushila Bai to execute the registered Sale Deeds,however, no sale deed were executed and Smt. SushilaBai died on 25.12.1992. After her death the sons and daughters have also failedto execute the sale deeds despite the request made by the plaintiff. The causeof action to file the civil suits as alleged has arisen on 06.10.1994, whenobjections were raised by the defendants before the Tehsildar in the mutationproceedings initiated by the Plaintiffs on the basis of these six agreements tosell. It is said, that readiness and willingness was always shown by theplaintiffs, however, sale deeds were not executed, therefore,the need to file aforesaid civil suits seeking relief(s) of specificperformance has arisen. During the pendency of the aforesaid six Civil Suits,the land in question was alienated by the defendant no. 2 ,3,4 and 5 by executing four sale deeds on 18.01.2001 in favour of the defendant No.7,8,9 and 10, therefore, these registered sale deeds were also challenged todeclare as null and void. 8.The defendants No. 2 to 4 by filing joint written statement on28.08.98/30.09.1998 have disputed the execution of agreements to sell by Smt.Sushila Bai on 30.08.1990. it is contended that theseagreements to sell are forged and fabricated. 8.The defendants No. 2 to 4 by filing joint written statement on28.08.98/30.09.1998 have disputed the execution of agreements to sell by Smt.Sushila Bai on 30.08.1990. it is contended that theseagreements to sell are forged and fabricated. It is stated that Smt. SushilaBaiwas permanent resident of Sagar and never visited to Bhopal for execution of any such agreements to sell. It was also contended that Smt.Sushila Bai was not having good relation with the eldest son i.e. defendant No.1/Kailash Agrawal and never resided at Bhopal with him, and died at Sagar on 25.12.1992. It is specifically said that no saleconsideration was received by Smt. Sushila Bai and possession of land inquestion was also not delivered to any person. The land in question, beingJoint Hindu Family Property, could not have been alienated alone by Smt.Sushila Bai. The defendant no. 1 - Kailash Agrawal joining hands with K. D.Maheshwasri and Mahesh Kumar Maheshwari has fabricated and prepared false andforged documents i.e. agreements to sell dated 30.8.90. It is said that Smt.Sushila Bai never executed any power of attorney on 04.09.1990 in favour ofMahesh Kumar Maheshwari granting any authority and power to alienate the landin question and to receive sale consideration for the land in question.Plaintiffs never served any notice in writing either to Smt. Sushila Bai or tothe LRs seeking execution of Sale deeds in pursuance of alleged agreements to sell. It is said that plaintiffsdid not dare to file the civil suits during the life time of Smt. Sushila Baiand filed against LRs after about four and half years of execution of saleagreements, thus, the suit is time barred and the relief of specificperfprmance as prayed can not be granted. 9.The State of M.P. being defendant No. 6, has also filed its written statementon 28.01.1997 contending that the land in question is situated in urban area,it could not have been alienated as agricultural land. The valuation of thesuit land was also required to be made treating it as urban land affixing theCourt Fees. 10.The lis pendens purchasers, arrayed as defendant No. 7 ,8,9 and 10 by filing separate written statement on 10.04.2001/23.04.2001, havetaken the plea of impostor of executants and contended that Smt. Sushila Bainever executed any agreement to sell in favour of the plaintiffs. However,neither Late Smt. Sushila Bai nor her legal heirs are bound by any suchagreement to sell executed by the impostor. However,neither Late Smt. Sushila Bai nor her legal heirs are bound by any suchagreement to sell executed by the impostor. The alleged agreements to sell areforged and fabricated documents. The defendant No. 7, 8, 9 and 10 are bona fidepurchasers and have paid the sale consideration to the defendant no. 2 ,3,4 and 5. They are in possession and plaintiffs were neverremained in possession on the land in question and now the land is mutated intheir name, the registered sale deeds were executed without having anyknowledge of any defect in the ownership and title of the sellers. The sixcivil suits for specific performance filed by the plaintiffs are time barredand, cannot be decreed in favour of the plaintiffs granting discretionaryrelief to them. 11.On the basis of the pleadings of the parties the trial Court has framed theissue regarding execution of agreements to sell on 30.8.1990 in favour of theplaintiffs for the disputed land after payment of total consideration anddelivery of possession by deceased Smt. Sushila Bai to the plaintiffs. Theissue of readiness and willingness, part performance of the agreement by theplaintiffs and refusal to perform their part by defendants has also beenframed. The issue regarding lis pendens transfer and execution of four sale - deeds dated 18.1.2001 by defendants No. 2 to 5 infavour of the defendants No. 7 to 10 instead of injunction in favour ofplaintiffs and such sale deeds may be declared as null and void has also beenframed. In Civil Suit No. 22-A/1997 and 23-A/1997 the issue that the State ofM.P. is a necessary party has been framed while in Civil Suit Nos.45-A/2001,46-a/2001,47-A/2001 and 48-A/2001 the issue has been framed thatagreement to sell dated 30.8.1990 is a fabricated and forged document and got executedby the plaintiffs in their favour with the help of defendant No. 1 and alsowith respect to adequate valuation and payment of Court - fees. 12.The parties during trial went to prove their case and in Civil Suit no. 22-A/97plaintiff examined Pankaj Kumar Maheshwari (PW-1) as Power of Attorney Holderof Bharat Kumar Lathi. In Civil Suit no. 23- A/97 plaintiff has examined P.W. 1K.D. Maheshwari a Power of Attorney Holder of plaintiff Shyam Kumar Inani, andAlso P.W. 2 Deepesh Chandra Patni one of the attesting witness of the agreementto sell and P.W. 3 Mahesh Kumar Maheshwari power of attorney of Smt. ShushilaBai in each suit. The defendant has also examined D.W. 1 Mohd. In Civil Suit no. 23- A/97 plaintiff has examined P.W. 1K.D. Maheshwari a Power of Attorney Holder of plaintiff Shyam Kumar Inani, andAlso P.W. 2 Deepesh Chandra Patni one of the attesting witness of the agreementto sell and P.W. 3 Mahesh Kumar Maheshwari power of attorney of Smt. ShushilaBai in each suit. The defendant has also examined D.W. 1 Mohd. Sha"kir and D.W. 2 Vinod Kumar Agrawal. Similarly inCivil Suit Nos. 45-A/2001 ,46 -A/2001,47-A/2001 and48-A/20014 plaintiff and defendant have examined aforesaid witnesses. Inaddition thereto plaintiffs have examined P.W. 4 R.K. Pathik and defendantshave examined D.W. 3 Naveen Chandra Deshpande as Handwriting Experts. Thusexcept in Civil Suit No. 48-A/2001 in remaining other suits the plaintiff hasnot come in the witness box and their Power of Attorney Holder either K.D.Maheshwari or Pankaj Maheshwari have deposed. 13.In the Civil Suit No. 22-A/1997 and 23-A/1997, the Trial Court has decided allthe issues positively in favour of the plaintiffs and decreed the suit infavour of the plaintiff. In the Civil Suit No. 45-A/2001,46-A/2001,47-A/2001and 48-A/2001, the Trial Court has decided Issue No. 1,2,3,4,6 7 and 8positively in favour of the plaintiff and the issue no. 5 in negative andagainst the defendants, decreeing the civil suits in favour of the plaintiffsgranting relief so prayed. 14.In Civil Suit No. 22- A/97 the Trial Court in judgement dated 14.5.2001incorrectly observed that the suit has been filed by Bharat Kumar Lathi puttinghis signature on the plaint and on verification. In fact the suit is filed inthe name of Bharat Kumar Lathi but the signature and verificastion is by PankajMaheshwari, the Power of Attorney Holder. The Civil Suit no. 23-A/97 has beenfiled with the signature of Shyam Kumar Inani. The Trial Court relying upon thestatement of the Power of Attorney Holders Pankaj Maheshwari and K.D. Maheshwariand the attesting witness recorded a finding that Smt. Sushila Bai executed theagreements to sell after receiving the sale consideration and delivered thepossession at the same time. It is held that Smt. Sushila Bai was introduced bydefendant no. 1 - Kailash Agrawal, who remained ex-parte in the suit, and theDefendants No. 2 to 5 have not brought Kailash Agrawal in witness box todisprove the aforesaid fact and also not brought any evidence to prove theirdefence that the agreement executed by Smt. Sushila Bai is a forged andfabricated one, however, not discharged the burden lies on them. 1 - Kailash Agrawal, who remained ex-parte in the suit, and theDefendants No. 2 to 5 have not brought Kailash Agrawal in witness box todisprove the aforesaid fact and also not brought any evidence to prove theirdefence that the agreement executed by Smt. Sushila Bai is a forged andfabricated one, however, not discharged the burden lies on them. The findinghas also been recorded that after full payment of consideration and delivery ofpossession nothing remained for performance on the part of the plaintiff and inthe proceedings in revenue Court the defendants have denied the execution ofsale - deed and got mutated their names, however, decreed the suit filed by theplaintiffs, directing specific performance. 15. In Civil SuitNos. 45-A/2001 ,46 -A/2001,47-A/2001and 48-A/2001 the Trial Court considering the findings recorded in Civil SuitNos. 22--A/97 and 23-A/97 affirmed those findings of execution of agreements tosell and delivery of possession. It was also found that despite having Power ofAttorney executed by Smt. Sushila Bai in favour of Mahesh Kumar Maheshwari whohas not executed the sale-deed in favour of plaintiffs. The plea taken by the defendants No. 2 to 5 with respect to joint Hindu Familyproperty found untrue. On consideration of the evidence of the Handwritingexperts it is observed that Handwriting Expert of defendants is moreexperienced but because defendants No. 2 to 5 and 7 to 10 are unable to provethat defendant No. 1 was in collusion with the plaintiff to get executedagreements to sell dated 30.8.1990 and to prove their defence, therefore,decreed the suit. On the point of readiness and willingness similar finding hasbeen recorded as recorded in Civil Suit Nos. 22-A/97 and 23-A/97. In both thejudgments it is held that lis pendens sale deeds dated 18.1.2001 executed bydefendants no. 2 to 5 in favour of defendants No. 7 to10 is null and void and decreed the suit in toto. The issue with respect tojoining of the State of M.P. as necessary party for the purpose of Order 1 Rule3-B of CPC has also been found prove because the transaction relates toagricultural land. 16.Shri R P Agrawal, learned Senior Counsel, assisted by Sarvasri Ashok Lalwani,Sanjay Agrawal and Sharad Gupta, assailed the judgment and decree and urgedthat the Trial Court has committed error of law in granting decree for specificperformance in favour of the plaintiffs and father declaring registered saledeeds dated 18.01.2001 as null and void. 16.Shri R P Agrawal, learned Senior Counsel, assisted by Sarvasri Ashok Lalwani,Sanjay Agrawal and Sharad Gupta, assailed the judgment and decree and urgedthat the Trial Court has committed error of law in granting decree for specificperformance in favour of the plaintiffs and father declaring registered saledeeds dated 18.01.2001 as null and void. It is submitted that the plaintiffs havefailed to enter into witness box, therefore, alleged agreements to sell (Ex.P/2) could not have been proved by the power of attorney holder Krishna DasMaheshwari (P.W. -1). All the civil suits were filed by the plaintiffs withoutthe aid of power of attorney holder, however, the plaint averments can not beproved by the Power of Attorney holder K.D. Maheshwari (P.W. 1), who appearedin Civil Suit No. 23-A/1997 ,45 -A/1997,46-A/41997 and47-A/1997 and Pankaj Maheshwari (PW-1) in Civil suit No. 22-A/1997 as power ofattorney holder. They were not having any knowledge of the ingredients oftransaction alleged to have been entered on 30.08.1990 with plaintiffs. Thealleged agreements to sell are forged and fabricated documents and could not bemade the basis for grant of decree of specific performance. Smt. Sushila Baihas never been resided at Bhopal and an impostor of Smt. Sushila Bai has executed alleged agreements to sell.The plaintiffs have never shown readiness and willingness to perform their partof the agreement and never issued any notice in writing either to Smt. SushilaBai or the LRs of Smt. Sushila Bai discharging the obligation of contract. 17.Learned Senior Counsel further submitted that the defendant No. 1/KailashAgrawal, the eldest son of Late Smt.-Sushila Bai, at whose residence these sixagreements to sell alleged to have been executed on 30.8.1990 by Late Smt.Sushila Bai at Bhopal, have neither filed any written statement admitting thepleadings of the plaint regarding execution of agreements to sells, norexamined by the plaintiffs to prove its execution at his residence at Bhopal,in his presence. In spite of taking plea of execution of alleged agreements tosell by an impostor of Late Smt. Sushila Bai, the plaintiffs have failed toprove due execution either by examination of Notary or, by examination of anywitness who could have proved the identity of Late Smt. Sushila Bai. Thescriber of alleged agreements to sell has not been examined to prove theintention of Smt. Sushila Bai to sell the land in question. Thescriber of alleged agreements to sell has not been examined to prove theintention of Smt. Sushila Bai to sell the land in question. The attestingwitness Deepesh Chand Patni (PW -2) and Power of Attorney K.D. Maheshwari(PW-1) have failed to prove the identity of Late Smt. Sushila Bai and have alsofailed to dispel the suspicious circumstances in which alleged agreement tosell have been executed. Mahesh Kumar Maheshwari (PW-3), in whose favour thepower of attorney (Ex. P/5) alleged to have been executed on 04.09.1990,further created many doubts against the plaintiffs and added further weaknessto the plaintiff's case. As recited in alleged agreements to sell dated30.08.1990, if entire sale consideration was paid at the time of execution,there was no need to execute any power of attorney on 04.09.1990 authorisingMahesh KumarMaheshwari (PW-3) to receive sale consideration or to signagreement on her behalf. Neither any agreed map has been enclosed with theagreements to sell nor, the boundaries are described. In fact, false and forgeddocuments were fabricated jointly by K.D. Maheshwari and Mahesh KumarMaheshwari in their names and also in the name of family members and relativeswith the help of the defendant No. 1 - Kailash Agrawal. The readiness andwillingness on the part of the plaintiffs could not have been assumed by theTrial Court in absence of any notice in writing stating that they are ready tobear registration charges and the cost of stamp duty requesting presence ofdefendants in the office of Sub Registrar. The Trial Court has ignored theadmission of K.D. Maheshwari (PW-1) made in para 10,18,32,38 and 39 of hisdeposition regarding non -issuance of any notice by the plaintiffs. The TrialCourt has also ignored the admission of K.D. Maheshwari (PW-1) in para 11 and17 and also, admission of Mahesh Kumar Maheshwari (PW-3) in para 4 of hisdeposition with respect to existing and continuous possession of thedefendants. The Trial Court has also ignored the admission of K.D. Maheshwar(PW-1) in para 10,14,15,16, 21, 22, 25 and 33 of his deposition and also,admission of Deepesh Chand Patni (PW-2) in para 4 ,7 and 8 of his deposition and also, admission of Mahesh Kumar Maheshwari (PW-3)in para 2,5 and 6 of his deposition not establishing the identity of Late Smt.Sushila Bai. It is submitted that any sale during the pendency of the litigation,is not void but only renders it subservient to the rights of the other partiesto the litigation. It is submitted that any sale during the pendency of the litigation,is not void but only renders it subservient to the rights of the other partiesto the litigation. The subsequent purchasers also can raise the plea thatplaintiffs were not ready and willing to perform his part of the contract. Therelief of specific performance, being discretionary, could not have beengranted ignoring the conduct of the plaintiffs and also looking to unreasonabledelay in filing the civil suits. Since the plaintiffs have failed to establishthe readiness and willingness to perform their part of contract, it would notbe necessary to enter into question as to whether the purchasers/defendant no.7, 8, 9 and 10 were bona fide subsequent purchasers for value without notice ornot. However, prayed that all the appeals may be allowed setting aside thejudgments and decree and also by dismissing the suits with cost. 18.Per contra, Shri Imtiaz Husain, learned counsel appearing on behalf ofplaintiffs have argued in support of the findings recorded in the judgments anddecree passed by the Trial Court in favour of the plaintiffs in aforesaid sixcivil suits. Learned Counsel prayed for dismissal of the appeal with cost andfurther submitted that, in the Civil Suit No 48-A/2001, the plaintiff K.D.Maheshwari, in whose presence agreements to sell were executed by Late Smt.Sushila Bai on 30.08.1990, has been entered into witness box and has proved theexecution and genuineness of agreement to sell in his favour. Being power ofattorney holder of remaining four plaintiffs in other four civil suits he hasrightly deposed and proved the agreements to sell executed by Late Smt. SushilaBai in favour of the plaintiffs. Pankaj Maheshwari (PW-1) was examined as Powerof Attorney Holder in Civil Suit No-. 22-A/1997 to proveagreements to sell. It is further submitted by learned counsel that oneof the attesting witness, Deepesh Chand Patni (PW-2) has also proved theexecution of the agreements to sell and, in absence of any contrary evidence onrecord, the testimony of attesting witness could not have been ignored merelyon disputing the sale agreements by appellants. The defendants have taken theplea of impostor, however, failed to pr ove the plea and also failed to proveany suspicious circumstances looking into the fact that the agreement to sell(Ex. P/2) was executed before Notary on 30.08.1990 and, the power of attorney(Ex. The defendants have taken theplea of impostor, however, failed to pr ove the plea and also failed to proveany suspicious circumstances looking into the fact that the agreement to sell(Ex. P/2) was executed before Notary on 30.08.1990 and, the power of attorney(Ex. P/5) was executed in favour of Mahesh Kumar Maheshwari on 04.09.1990before Sub-Registrar, therefore, presumption regarding due execution ofdocuments would also arise in favour of the plaintiffs. It is further submittedthat by the learned counsel that the burden of proof and the onus of proof aretwo different aspects. The defendants have failed to prove any fraud, undueinfluence or misrepresentation on the part of the plaintiffs. Since entire saleconsideration of Rs. 4,68,000/- was received by Late Smt. Sushila Bai in cashon 30.08.1990, and the possession of the land in question was also delivered tothe plaintiffs supplying the original documents therefore, the question ofabsence of any readiness and willingness on the part of the plaintiffs wouldnot arise. The defendants No. 2 to 5 were duty boundto execute the sale deeds in favour of individual plaintiffs. The lis pendenspurchasers/defendants No. 7 ,8,9 and 10 have no rightto dispute the genuineness and correctness of the agreements to sell and noright or interest could have been validity created in them by the defendant No.2,3;4 and 5 by the sale deeds executed during the pendency of the civil suits.The sale deeds executed on 18.01.2001 were rightly declared null and void. Therelief of specific performance, being discretionary, has rightly been grantedby the learned Trial Court in favour of the plaintiffs, however interference isnot warranted. 19.Shri Imtiaz Husain on the point of examination of Power of Attorney as awitness has relied upon the judgments in the case of Janki Vashdeo Bhojwani Vs.Indusind Bank Ltd., 2005 (1) MPLJ 421 (S.C.) Smt. Gangawa Vs. Arjunsa, AIR 2001Karnataka 231 and Bhimappa Vs. AHisab, AIR 2006 Karnataka 231. On the point ofpresumption of authentication if the document is registered or notarized, hehas placed reliance upon the judgments in the case of Ram Kishan Dwivedi Vs.Roshni Prasad Tiwari, 2009 (5) MPHT 38 and Shankar Dayal Vs. Pragi Lal, 1997(2) Vidhi Bhaswar 80. On the issue of distinction between onus of proof andburden of proof he has placed reliance upon the judgments in the case of PawanKumar Gupta Vs. Rochiram Nagdeo, (1994) 4 SCC 243, Kuppuswami Vs. Arumugam, AIR1967 SC1395, Anil Rishi Vs. Surbaksh Singh, (2006) 5 SCC 558, Krishna Mohan KulVs. Pragi Lal, 1997(2) Vidhi Bhaswar 80. On the issue of distinction between onus of proof andburden of proof he has placed reliance upon the judgments in the case of PawanKumar Gupta Vs. Rochiram Nagdeo, (1994) 4 SCC 243, Kuppuswami Vs. Arumugam, AIR1967 SC1395, Anil Rishi Vs. Surbaksh Singh, (2006) 5 SCC 558, Krishna Mohan KulVs. Pratim Maity, (2004) 9 SCC 468; AIR 2003 SC 4351 and Vmay Kumar TamrakarVs. Shanti Singh, 1993 (11) MPWN155. On the point of part performance where thefull amount of consideration was paid and possession has been deliveredreliance has been placed upon the judgments in the case of M/s ChetakConstructions Limited, Indore Vs . Om Prakash andothrs, AIR 2003 MP145 and Millappa Vs. Srinivas Rao, AIR 2004 Karnataka 31. Onthe point of lis pendens transfer deeds oare void, he has placed reliance uponthe judgments in the case of Dhanna Singh Vs .Batfinder Kaur (1997) 5 SCC 476 :1997 (II) MPWN 48 and Ramesh Chadra PattnaikVs. Pushpendra Kumari, 2009 (1) MPLJ 302 (SC). 20.Shri Ravish Agrawal, learned Senior Counsel assistedby Shri Pranay Verma, Advocate contends that the defendant No. 1 has not filedany written statement and led any evidence, however, he has nothing to say inthis case. Smt. Sheetal Dubey, learned GovernmentAdvocate states that it is a contest in between the plaintiffs and appellantsand the State Government has been joined as a party for the purpose of Order 1Rule 3 - B of CPC, however, she is having nothing to say in the case. 21.After having heard learned Counsel for the parties at length and onconsideration of arguments, pleadings, documents and evidence on record,following points arise for determination:- (a)Whether execution of agreements to sell dated 30.08.1990 was duly proved byplaintiffs? (b)Whether the testimony of the power of attorney holder to prove the executionand the genuineness of the transaction alleged to have been entered intobetween the plaintiffs and Late Smt. Sushila Bai could be relied upon to provethe agreements to sell dated 30.08.1990? (c)Whether the question of readiness and willingness was redundant and notrequired to prove in recital of payment of full consideration and delivery ofpossession recorded in alleged agreements to sell? (d)Whether lis pendens purchasers have not acquired any title and interest byvirtue of registered sale deeds dated 18.01.2001 and while granting decree ofspecific performance in favour of plaintiff in six civil suits the trial Courthas rightly declared the lis pendens sale - deeds null and void? (d)Whether lis pendens purchasers have not acquired any title and interest byvirtue of registered sale deeds dated 18.01.2001 and while granting decree ofspecific performance in favour of plaintiff in six civil suits the trial Courthas rightly declared the lis pendens sale - deeds null and void? (e)Whether all the six suits have been filed within the reasonable time and theplaintiffs are having possession on the suit land? Re:Point (a) 22.In the six civil suit seeking decree of specific performance of agreements tosell dated 30.8.1990 executed by Smt. Sushila Bai alienating 23.98 acres ofland out of total 27.56 acres of land for a consideration of Rs. 4 ,68,000 /- is the subject - matter. Seeking decree ofspecific performance execution of all the agreements to sell ought to be provedby the plaintiffs. As per Section 67 of the Evidence Actsignature and handwriting of person alleged to have signed on document must beproved. As per Section 101 of the Evidence Act burden of proof lies on aperson who desires a Court to give judgment as to any legal right or liabilitydependent on the existence of facts which the person asserts, must prove thatthose facts exist. In the present case plea of impostor of Smt. Sushila Bai atthe time of execution of agreements to sell has been raised by defendants,however, as per Section 111 of the Evidence Act the proof of good faith intransactions where one party is in relation of active confidence is on theparty who is in the said position. In the present case the executants ofagreements to sell Smt. Sushila Bai was the resident of Sagar (M.P.) as apparentfrom the sale deed Ex. P-4 by which, the land in question is in her name,situated at village Godarmau, Tehsil Huzur, district Bhopal and died there aton 25.12.1992. Her eldest son defendant No. 1 Kailash Agrawal resided at Bhopal and other family members defendants No. 2 to 5 residedat Sagar. The husband of Smt. Sushila Bai died in theyear 1986, Thus it isapparent that Smt. Sushila Bai was an old, widow and infirm lady. After thedeath of her husband, as alleged agreements to sell were executed at Bhopal atthe residence of eldest son Kailash Agrawal and as per plaintiffs he identifiedher as Smt. Sushila Bai. The husband of Smt. Sushila Bai died in theyear 1986, Thus it isapparent that Smt. Sushila Bai was an old, widow and infirm lady. After thedeath of her husband, as alleged agreements to sell were executed at Bhopal atthe residence of eldest son Kailash Agrawal and as per plaintiffs he identifiedher as Smt. Sushila Bai. In such circumstances the burden of proof lies on theplaintiffs to establish execution , of sale agreementsafter explaining the contents to exeoutants and its genuineness to get decreeof specific performance. At this stage it would be desirable to take guidancefrom various judgments on the issue prior to dealing the said point. The Hon'ble Apex court in the case of Mst. Kharbuja Kuer V/s JangbahadurRai. AIR 1963 S.C. 1203 has held as under: - "6........Asregards documents taken from pardanashin women, has to ascertain that the partyexecuting them has been a free agent and duly informed of what she was about.The reason for the rule is that the ordinary presumption that a personunderstands the documents to which he has affixed his name does not apply inthe case of a pardanashin woman. The burden of proof shall always rest upon theperson who seeks to sustain a-transaction entered into with a pardanashin ladyto establish that the said document was entered into by her after clearlyunderstanding the nature of transaction. It should be established that it wasnot her physical act but also her mental act. The burden can be discharge notonly by proving that the document was explained to her and that she understoodit but also by other evidence, direct and circumstantial. The rule evolved forthe protection of pardanashin ladies should not be confused with other doctrinesuch as fraud, duress and actual undue influence, which apply to all personswhether they be pardanashin ladies or not." 23.The said principle has been reiterated by Hon'ble the Apex Court in the case ofKrishna Mohan Kul V Pratima Maity, AIR 2003 SC 4351 elaborating the applicationof the said principle to an old, illiterate and ailing person also, wherein theApex Court held as under: - "17.The logic is equally applicable to an old, illiterate, ailing person who isunable'to comprehend the nature of the document or the contents thereof. Itshould be established that there was not mere physical act of the executantsinvolved, but the mental act. Observations of this Court, though in the contextof pardanashin lady in Mst. Itshould be established that there was not mere physical act of the executantsinvolved, but the mental act. Observations of this Court, though in the contextof pardanashin lady in Mst. Kharbuja Kuer V/s Jang Bahadur Rai and others (AIR1963 S.C. 1203) are logically applicable to the case of the old, invalid,infirm (physically and mentally) and illiterate persons." 24.The Division Bench of this Court in the case of Ramibai Vs. Life InsuranceCorporation of India reported in 1981JLJ 388 explaining the scope of Section 67of the Evidence Act and to elaborate the principal, how a document can beproved held as under: - "Section67 does not lay down any particular mode of proof for proving that a particularwriting or signature is in the hand of a particular person. Thus, thesignatures may be proved in any one or more of following modes* - (i)By calling the person who signed or wrote a document, (ii) By calling a personin whose presence the documents are signed or written. (iii)By calling handwriting expert. (iv) By calling a person acquainted with the handwriting ofthe person by whom the document is supposed to be signed or written, (v)By comparing in Court, the disputed signature or handwriting with some admittedsignatures or writing, (vi) By proof of an admission by the person who is allegedto have signed or written the document what he signed or wrote it. (vii)By the statement of a deceased professional scribe, made in the ordinary courseof business, that the signature on the document is that of a particular person.A signature is also proved to have been made, if it is shown to have been madeat the request of a person by some other person, e.g. by the scribe who signedon behalf of the executants (viii) By other circumstantial evidence." 25.The Privy Council in the case of Kumbhan Lakshmanna and others Vs. TangiralaVenkateshwarlu and others, reported in AIR (36) 1949 Privy Council 278 hasexplained the provisions of Section 101,102 and 103 of the Evidence Act andheld that the burden of proof of pleadings never shifts, in fact onus to proveshifts. His Lordship has held as under: - "Whatis called the burden of proof on the pleadings should not be confused with theburden of adducing evidence which is described as "shifting". Theburden of proof on the pleadings never shifts, it always remain constant. His Lordship has held as under: - "Whatis called the burden of proof on the pleadings should not be confused with theburden of adducing evidence which is described as "shifting". Theburden of proof on the pleadings never shifts, it always remain constant. Theinitial burden of proving a prima facie case in his favour is cast on the plaintiff;when he gives such evidence as will support a prima facie case, the onus shiftson the defendant to adduce rebutting evidence to meet the case made out by theplaintiff. As the case continues to develop, the onus may shift back again tothe plaintiff. It is not easy to decide at what particular stage in the courseof the evidence the onus shifts from one side to the other. When after theentire evidence is adduced, the tribunal feels it cannot make up its mind as towhich of the versions is true, it will hold that the party on whom the burdenlies has not discharged the burden; but if it has on the evidence no difficultyin arriving at a definite conclusion then the burden of proof of the pleadingsrecedes into the background." 26.The Apex Court in the case of Thiruvengadam Pillai Vs. Navaneethammal andanother, reported in (2008) 4 SCC 530 held that the burden remains on theplaintiff to prove that the defendant had executed the agreement and not on thedefendant to prove the negative. The Apex Court in the said case held as under: - "19.The Trial Court had analyzed the evidence properly and had dismissed the suitby giving cogent reasons. The first appellate court reversed it by wronglyplacing onus on the defendants. Its observation that when the execution of anunregistered document put forth by the plaintiff was denied by the defendants,it was for the defendants to establish that the document was forged orconcocted, is not sound proposition. The first appellate Court proceeded on thebasis that it is for the party who asserts something to prove that thing; andas the defendants alleged that agreement was forged, it was for them to proveit. But the first appellate court lost sight of the fact that the party whopropounds the document will have to prove it. In this case the plaintiffs cameto Court alleging that the first defendant had executed an agreement of sale inhis favour. But the first appellate court lost sight of the fact that the party whopropounds the document will have to prove it. In this case the plaintiffs cameto Court alleging that the first defendant had executed an agreement of sale inhis favour. The first defendant having denied it, the burden was on theplaintiff to prove that the first defendant had executed the agreement and noton the first defendant to prove the negative. The issues also placed the burdenon the plaintiff to prove the document to be true. No doubt, the plaintiffattempted to discharge his burden by examining himself as also scribe and oneof the attesting witnesses. But the various circumstances enumerated by theTrial Court and High Court referred to earlier, when taken together, rightlycreate a doubt about the genuineness of the agreement and dislodge the effectof the evidence of PWs 1 to 3. We are therefore of the view that the decisionof the High Court, reversing the decision of the first appellate Court does notcall for interference." 27.In the case of Subhra Mukherjee and another v. Bharat Coking Coal Ltd. Andothers, AIR 2000 SC 1203 while dealing with the issue of burden of proof and"the transaction is bona fide and genuine" or sham and bogus, the Apex Court has held as under: - "13.There can be no dispute that a person who attacks a transaction as sham, bogusand fictitious must prove the same. But a plain reading of question No. 1discloses that it is in two parts: the first part says, 'whether thetransaction, in question, is bona fide and genuine one, which has to be provedby the appellants. It is only when this has been done that the respondent hasto dislogue it by proving that it is a sham and fictitious transaction. But a plain reading of question No. 1discloses that it is in two parts: the first part says, 'whether thetransaction, in question, is bona fide and genuine one, which has to be provedby the appellants. It is only when this has been done that the respondent hasto dislogue it by proving that it is a sham and fictitious transaction. Whencircumstances of the case and the intrinsic evidence on record clearly pointout that the transaction is not bona fide and genuine, it is unnecessary forthe Court to find out whether the respondent has led any evidence to show thatthe transaction is sham, bogus or fictitious." 28.The Division Bench of this Court in the case of Sirumal V. Smt. Annapurna Devi, 2001 (2) JLJ 261 while dealing with the issue that burden of proof liescertainly on a person enjoying good faith an active confidence in a case ofspecific performance of the contract explaining the scope of Section 111 of theEvidence Act observed as under: - "10....In the cases of burden of proving good faith where one party is in a positionof active confidence of another, the Courts of equity have invariably placedthe burden of sustaining the transaction upon the party benefitted by it,requiring him to show that it was of an unobjectionable character and one whichit ought not to disturb. The principle is of universal application and must notbe regarded as a technical rule of English law, as held by Privy Council incase of Demerara BC v. Louisa Hubbard, (1923 AC 673 PC). In the case wherePardanashin lady has executed a deed, it was held essential by the PrivyCouncil in case of Thakurji v. Ram Dei AIR 1930 PC 139 , it is for vendor thathe should prove the bona fide nature of the transaction." 29.In the matter where power of attorney holder is prosecuting the suit filed byplaintiffs seeking decree of specific performance, then how it can be proveddischarging burden, the guidance may be taken by the judgment of Hon'ble theApex Court. In the judgment of Man Kaur (Dead) by LRs. Vs. In the judgment of Man Kaur (Dead) by LRs. Vs. Hartar Singh Sangha,reported in (2010) 10 SCC 512 which is the case of specific performance ofagreement to sell and filed by the Power of Attorney holder, in the saidjudgment the Court held as under - "17.To succeed in a suit for specific performance, the plaintiff has to prove: (a)that a valid agreement of sale was entered into by the defendant in his favourand the terms thereof; (b) that the defendant committed breach of the contract;and (c) that he was always ready to perform his part of the obligations interms of the contract. If a plaintiff has to prove that he was always ready andwilling to perform his part of the contract, that is, to perform hisobligations in terms of the contract, necessarily he should step into thewitness box and give evidence that he has all along been ready and willing toperform his part of the contract and subject himself to cross examination onthat issue. A plaintiff cannot obviously examine in his place, his attorneyholder who did not have personal knowledge either of the transaction or of hisreadiness and willingness. Readiness and willingness refer to the state of mindand conduct of the purchaser, as also his capacity and preparedness on theother. One without the other is not sufficient. Therefore a third party who hasno personal knowledge cannot give evidence about such readiness andwillingness, even if he is an attorney holder of the person concerned." 30.The Hon'ble Apex Court in the case of Life Insurance Corporation of India andAnother Vs. Ram Pal Singh Bisen reported in (2010) 4 SCC 491 dealing with anissue of proof of contents of a document held that mere filing or exhibiting ofa document in court does not amount of proof of its contents. While dealingwith an issue of admission of a document in court it is observed that it mayamount to admission of its contents but not their truth. Insuch a circumstances, it is apparent that the genuineness, truthfulnessof the document is an essence to prove it even on exhibiting and admitting thesaid document in the Court. In the case of H. Siddiqui (dead) By Lrs. Vs. A.Ramalingam, reported in (2011) 4 SCC 240 , the Hon'ble Apex Court whileexplaining scope of Section 67 held that admission of a document for itscontent may not necessary led to drawing any inference unless the contentsthereof have some probative value. In the case of H. Siddiqui (dead) By Lrs. Vs. A.Ramalingam, reported in (2011) 4 SCC 240 , the Hon'ble Apex Court whileexplaining scope of Section 67 held that admission of a document for itscontent may not necessary led to drawing any inference unless the contentsthereof have some probative value. It is observed that admission of thesignature on the document would not amount to admission of the contents. TheCourt is duty bound to see and draw the inference determining the probativevalue of such admission or its contents. Thus it is apparent that mere filingof a document would not lead to the conclusion that it has been proved. In factit ought to be established that the executants was able to comprehend thenature and contents of the document and thereafter signed on receiving theamount of consideration in a case of specific performance of agreements tosell. 31.In view of the foregoing and as per the law laid down by various judgments itis apparent that in a case of old, widow, infirm, Pardanashin, illiterate andailing persons who are unable to comprehend the nature of the recital, itshould be established by the plaintiff that prior to the execution of documentby signing on it, the contents were explained and also understood byexecutants. Thus, it is not merely a physical act of the executants, but alsothe mental act of the person executing the document is of great value. However,to fulfill requirement of Sections 67,101,102,103 and 111 of the Evidence Actto prove the execution of the document it must be established that the personexecuting the document concisely subscribed to its contents. Inthe sense to put the mark or signature on it after having known andunderstanding its contents or other ingredients of contract. Mere proofof signature of the person on the document cannot by itself establish theexecution of the documents. It is true that the defendants have taken a plea ofimpostor of a lady in place of Smt. Sushilabai, but no cogent evidence to provesuchjplea has been brought. On failure to prove the defence by defendants burden to prove the agreement to sell does notreverse on defendants. The burden of proof that the agreement to sell dated30.8.90 was executed after explaining its contents to the executants and its genuineness, lies on the plaintiff and thereafter onus willshift on defendant to prove their defence. The probative value to execute thedocument with truthfulness has to be first established by the plaintiff. The burden of proof that the agreement to sell dated30.8.90 was executed after explaining its contents to the executants and its genuineness, lies on the plaintiff and thereafter onus willshift on defendant to prove their defence. The probative value to execute thedocument with truthfulness has to be first established by the plaintiff. Thusfor the decree of specific performance, which is discretionary in nature theburden lies on, the plaintiff and by taking a plea of impostor and execution ofa forge document, the said burden would not shift on the defendant in view ofthe judgement of Sobharam Mukherji (supra). In the facts of the present case itis apparent that plaintiffs have not appeared in the witness box to prove theagreement to sell and to state his own case making them available for cross -examination to the defendant. In the said context, the judgment of the Apex Court in the case of Vidhyadhar Vs .Manikrao and Another (1993) 3 SCC 573 is relevant. In para 17 the Apex Court has held as under: - "17.Where a party to the suit does not appear in the witness box and states his owncase on oath and does not offer himself to be cross examination by the otherside, a presumption would arise that the case set up by him is not correct ashas been held in a series of decisions passed by various High Courts and thePrivy Council beginning from the decision in Sardar Gurbaksha Singh v. GurdialSingh, AIR 1927 PC 230 . This was followed by the Lahore High Court in KirpaSingh v. Ajaipal Singh, AIR 1930 Lahore 1 Martand Pandharinath Chaudhari v.Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Courtin Gulla Kharagj it Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra225, also followed the Privy Council decision in Sardar Gurgaksh Singh's case(supra). The Allahabad High Court in Arjun Singh V. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would giverise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bishan Chand, AIR 1974 Punj and Har7, drew a presumption under Section 114 of the Evidence Act, 1872 against aparty who did not enter the witness box." 32.In the context of the said legal position the facts of the case are required tobe analyzed. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bishan Chand, AIR 1974 Punj and Har7, drew a presumption under Section 114 of the Evidence Act, 1872 against aparty who did not enter the witness box." 32.In the context of the said legal position the facts of the case are required tobe analyzed. Out of six civil suits, the Suit No. 22-A/9.7 has been filed bythe intended purchaser Bharat Kumar Lathi, but the signature on verification ofthe suit is of the Power of Attorney Holder Pankaj Maheshwari verifying thepleadings. Similarly in Civil Suit No. 46-A/2001 intended purchaser RamkumarInani has filed the suit, but the signature on verification of the suit is ofthe power of attorney holder K.D. Maheshwari. In fact the pleadings have notbeen signed and verified in view of the procedure so prescribed under Order 6Rule 14 of CPC. While in other suits plaintiffs have put their signatures onplaints. Leaving Civil Suit no. 48-A/2001, in remaining 5 suits plaintiffs havenot come in the witness box to prove the agreements to sell executed by Smt.Sushila Bai in their favour. The Power of Attorney Holders namely, K.D.Maheshwari and Pankaj Maheshwari have appeared to prove averments of the suit.Undisputedly execution of agreements to sell dated 30.8.1990 was not throughthe Power of Attorney Holders. It was executed in the presence of theplaintiffs and they were not knowing Smt. Sushila Baiintended seller. She was identified as Sushila Bai by defendant No. 1 KailashAgrawal. It is also not in dispute that Smt. Sushila Bai was not the residentof Bhopal and was the resident ofSagar and died there at. As per the pleadings and the evidence her son KailashAgrawal defendant No. 1 was the author in execution of agreements to sell. Thedefendant No. 1 Kailash Agrawal in whose presence agreements to sell wereexecuted and who identified Smt. Sushila Bai has remained ex-parte and notfiled any written statement admitting the claim of plaintiffs and also notcalled as witness by the plaintiffs. The wordings of all six agreements to sellare the same except the Khasra Nos. and area of the land and the amount ofconsideration so paid for sale. As-per the contents of the agreements to sellentire amount of consideration was received in cash and possession on the dateof execution of the agreements were delivered. The wordings of all six agreements to sellare the same except the Khasra Nos. and area of the land and the amount ofconsideration so paid for sale. As-per the contents of the agreements to sellentire amount of consideration was received in cash and possession on the dateof execution of the agreements were delivered. It is mentioned that the sale -deeds may be executed in the name of the plaintiffs or any other person. It isalso mentioned that necessary documents for execution of the sale - deeds shallbe prepared by the intended purchasers and if any help of the seller isrequired, it be extended by Smt. Sushila Bai. If the land is acquired by thegovernment the compensation be payable to the purchasers. There was no timelimit for execution of the sale - deed. The each agreements to sell were on thestamp of Rs. 5/- only. The attesting witnesses of the agreements to sell areDeepesh Chandra Patni and one Mr. Sharma. It is notarized by Mr. T.R. Sharma,Public Notary. It is not clear that who has purchased stamps for agreements tosell or who has scribed all those agreements. On the agreements to sell thereis no thumb impression and after four days, Ex. P-5, a General Power ofAttorney of Smt. Sushila Bai in the name of Mahesh Kumar Maheshwari has beentaken, wherein her name was written as 'Sushila Devi' and not as 'Sushila Bai'.Thereupon her signature and thumb impression are there. In the Power ofAttorney powers have been given to Mr. Mahesh Kumar Maheshwari to receive theadvance amount, to sign agreements to sell, sale - deed or any other documentby receiving amount and to deliver the possession on the land. On conjointreading of the documents agreements to sell Ex. P-2 and Power of Attorneyexecuted by Smt. Sushila Bai in favour of Mahesh Kumar Maheshwari Ex. P-5 it isclear that after receiving the entire consideration, possession was deliveredand only the sale - deed is required to be executed. Thus if Smt. Sushila Baihad received the amount of consideration and signed the agreements to sell,then there was no necessity to execute general power of attorney for the saidpurpose in favour of Mahesh Kumar Maheshwari. In such circumstances ifsale-deed was remained for execution, then by special power of attorney may beassigned to Mahesh Kumar Maheshwari for execution of the sale-deed and no otherpurpose was remained to assign power to Mahesh Kumar Maheshwari. In such circumstances ifsale-deed was remained for execution, then by special power of attorney may beassigned to Mahesh Kumar Maheshwari for execution of the sale-deed and no otherpurpose was remained to assign power to Mahesh Kumar Maheshwari. It has notbeen explained by plaintiffs that if entire sale consideration was paid andpossession was delivered, the, Smt. Sushila Bai can execute the sale-deed itselfafter agreements to sell on the date of execution of power of attorney andthere was no necessity to take her power of attorney in the name of MaheshKumar Maheshwari. However, suspicion has been created by executing the power ofattorney in the name of Mahesh Kumar Maheshwari, who is the brother of K.D.Maheshwari plaintiff in Civil Suit no. 48-A/2001 and power of attorney holderin other four suits. On the said power of attorney, Smt. Sushila Bai has puther signature and also the thumb impression. No evidence has been brought todispel such suspicious circumstances by the plaintiffs in the suit. It isrelevant to observe, why the plaintiffs have not filed the suits during lifetime of Smt. Sushila Bai, has not been explained to come out from such suspicion.The Power of Attorney Holders of plaintiffs K.D. Maheshwari and PankajMaheshwari in 5 suits have made an endeavour to prove execution of theagreements to sell deposing in the Court on behalf of plaintiffs. But, theyhave failed to prove the identity of Smt. Sushila Bai. It is categoricallyadmitted that before alleged execution of agreements to sell Smt. Sushila Baiwas not known to them. It is further admitted that the defendant No. 1 KailashAgrawal has identified, that, the lady executing agreements to sell is Smt.Sushila Bai and they have seen her at the residence of Kailash Agrawal. ThePower of Attorney Holders state that the signature put on the agreements, is of Smt. Sushila Bai and of no one else. ThePublic Notary who executed the agreements to sell has not been called in thewitness box to establish identification of Smt. Sushila Bai and prove that shehas executed the agreements to sell in favour of plaintiffs after understandingits contents. ThePower of Attorney Holders state that the signature put on the agreements, is of Smt. Sushila Bai and of no one else. ThePublic Notary who executed the agreements to sell has not been called in thewitness box to establish identification of Smt. Sushila Bai and prove that shehas executed the agreements to sell in favour of plaintiffs after understandingits contents. The eldest son of Smt. Sushila Bai, namely, Kailash Agrawal -defendant No. 1 who introduced her as Smt. Sushila Bai to the plaintiffs hasnot admitted the plaint allegations and not called by plaintiff in the witnessbox to prove the aforesaid facts and also the fact that agreements wereexecuted at his residence at Bhopal .The attesting witness Deepesh Chandra Patni (PW-2) has been examined who is notthe resident of Bhopal or of Sagar,however, he was also not known to Smt. Sushila Bai. In his statement it iscategorically admitted by him that after execution of the agreements to sell hereturned back to Indore . At thetime of execution of agreements three other sons of Smt. Sushila Bai were notpresent. It was only Kailash Agrawal to whom he was not known earlier. He hadseen him on spot thereby he can say that the person so present was the KailashAgrawal, and on his saying he said that the lady signing on the agreements tosell was Smt. Sushila Bai. It is said that the contents of the agreements werenot discussed in front of him and the possession was not delivered toplaintiffs on spot. In the said context the evidence of defendant no. 2 VinodAgrawal (DW-2), the son of Late Smt. Sushila Bai is relevant. In his depositionhe has denied the signature of his mother Smt. Sushila Bai on agreements to selldated 30.8.1990 (Ex. P-2) and Power of Attorney dated 4.9.1990 (Ex. P-5) andstated that it is forged signature. It is also on record that the Bhu Adhikarand Rin Pustika (Ex. P/3) produced before the Trial Court by the plaintiffs, isforged and fabricated document and Vinod Agrawal (DW-2) has produced originalBhu Adhikar and Rin Pustika (Ex. D/l 0). Thus it is clear that the plaintiffshave not proved the execution of the agreements to sell executed on 30.8.1990in their favour dispelling suspicious circumstances. 33.Although in Civil Suit No. 45-A/2001 ,46 -A/2001,47-A/2001and 48-A/2001, the plaintiffs have examined R. K. Pathik (PW-4), handwritingexpert to prove the signature of the Smt. Sushila Bai on agreements to sell(Ex. P/2). D/l 0). Thus it is clear that the plaintiffshave not proved the execution of the agreements to sell executed on 30.8.1990in their favour dispelling suspicious circumstances. 33.Although in Civil Suit No. 45-A/2001 ,46 -A/2001,47-A/2001and 48-A/2001, the plaintiffs have examined R. K. Pathik (PW-4), handwritingexpert to prove the signature of the Smt. Sushila Bai on agreements to sell(Ex. P/2). The defendants, in rebuttal, has examinedNaveen Chandra Deshpande (DW-3), handwriting expert to prove the fabricationand forgery of the signature of Smt. Sushila Bai on agreements to sell (Ex.P/2). In my considered opinion, the handwriting expert's report and hisevidence is an opinion and can not improve the case of the party where theimportant witnesses, in whose presence the documents allegedto have been executed, is withheld without any reasonable and justcause. R. K. Pathik (PW-4) has failed to prove that disputed signatures of Smt.Sushila Bai comparing with any admitted/standard signature. In the aforesaidcivil suits also another attesting witness Mr. Sharma, the Notary and thescriber of the agreement were important witnesses, however, these threeimportant witnesses have not been examined to prove due execution of allegedagreements to sell after explaining the contents to the executant. From theevidence of Deepesh Chand Patni (PW-2) and Mahesh Kumar Maheshwari (PW-3), thedue execution of the agreements to sell (Ex. P/2) and power of attorney (Ex.P/5) is not proved. Surprisingly in the power of attorney dated 04.09.1990 (Ex.P/5), the name qf Smt. Sushila Bai is engraved as"Sushila Devi". It is not proved that Smt. Sushila Bai was ever knownas "Sushila Devi". Obviously in the original sale deed dated29.04.1966 Ex. P-4-A the name of the Sushila Bai is also engraved as"Sushila Bai wife of Chandmal Ji" showing her residence at Sagar. The hand writing expert R.'K. Pathik (PW-4) has also failedto prove his competence and experience as hand writing expert. On the otherhand, the hand writing expert Navin Chandra Deshpande (DW-3) has proved twentyone years long experience in the field and his retirement from-the post ofSuperintendent of Police of the State engaged in the field. From the evidenceof R. K. Pathik (PW-4), the plaintiffs have failed to prove that the opinionevidence given by R. K. Pathik (PW-4) is more sound aod reliable than the opinion evidence of defendant's witness Navin Chandra(DW-3). The trial Court has also acknowledged the experience and his report ismore plausible. From the evidenceof R. K. Pathik (PW-4), the plaintiffs have failed to prove that the opinionevidence given by R. K. Pathik (PW-4) is more sound aod reliable than the opinion evidence of defendant's witness Navin Chandra(DW-3). The trial Court has also acknowledged the experience and his report ismore plausible. The opinion evidence given by R. K. Pathik (DW-4) could not berelied to prove the genuineness of the signature of Smt. Sushila Bai appearingon the agreements to sell. 34.In view of the discussion of pleadings and evidence and the legal positionemerges by the various judgments, the arguments so advanced by Mr. ImfiaaHussain, Advocate taking plea of distinction in between onus of proof andburden of proof relying upon various judgments of Hon'ble Apex Court requiresconsideration. The judgment of Pawan Kumar Gupta (supra) so relied on by him isdistinguishable. In the said case as per the deed of sale of building executedin favour of a particular person mentioning that sale consideration was paid byhim to former owner, on the basis of the sale-deed said person filing a suitfor eviction of the defendant-tenant, the defendant contended that sale-deedwas a Benami one and not by real purchaser but by his father, however, onus toprove the nature of transaction lies on him. In the said context Apex Court held that burden lies on the person whoalleges that recital in the sale-deed to be untrue and not on the person whowas mentioned in the sale- deed as the purchaser for consideration. In the saidjudgment any specific proposition of law has not been laid down, but on thefacts of the case the Apex Court has shifted the onus to other side. In a case of Kuppuswami v. Arumugam, AIR1967 SC1395 the plea of misrepresentation for execution of the document wasraised. In the said context the Apex Court held that onus is upon person who raised the plea of misrepresentation. But thesaid case was not of specific performance of contract, wherein for grant ofdiscretionary relief the contract is required to be proved. In the case of AnilRishi v. Surbaksh Singh (2006) 5 SCC 558 the Apex Court held that a distinction exists between aburden of proof and onus of proof and follows from onus probandi. It assumesimportance in the early stage of a case. The question of onus of proof hasgreater force, where the question is, which party is to begin. In the case of AnilRishi v. Surbaksh Singh (2006) 5 SCC 558 the Apex Court held that a distinction exists between aburden of proof and onus of proof and follows from onus probandi. It assumesimportance in the early stage of a case. The question of onus of proof hasgreater force, where the question is, which party is to begin. Burden of proofis used in three ways: (i) to indicate the duty of bringing forward evidence insupport of a proposition at the beginning or later; ((ii) to make that ofestablishing a proposition as against all counter evidence; and (iii) anindiscriminate use in which it may mean either or both the others. The Apex Court observed in reference to Section 101 of theEvidence Act that ordinarily, the burden of proving the fact rests on the partywho substantially asserts the affirmative of the issue and not on the party whodenies it. The said rule may not be universal in its application and there maybe exception thereto. The suit will fail if both the parties do not adduce anyevidence, in view-of Section 102 of the Evidence Act. As per Section 1-02 ofthe Evidence Act the initial onus is always on the plaintiff and if hedischarges that onus and makes out a case which entitles him to a relief, theonus shifts to the defendant to prove those circumstances, if any, which woulddisentitle the plaintiff to the same Thus, in the said case analogy laid downby the Privy Council in the case of Kumbhan Lakshmanna and Others (supra) has beenreiterated. It is required to be seen in the context of nature of the claimmade in the suit and to determine it in the said facts and circumstances of theindividual case. In the case of Krishna Mohan Kaul v. Pratima Maity, (2004) 9SCC 468 the Apex Court observed that when fraud, misrepresentation or undue.influence*'is alleged by aparty in a suit, the burden to prove the validity of the deed of settlement wason defendant No. 1. The Division Bench in the case of Vyay Kumar Tamrakar v.Shandi Singh, 1993 (II) M PWN 155 held thatpresumption lies in favour of a document, which is registered. The aforesaidtwo judgments so relied upon are having no application in the suit for specificperformance of the contract. The Division Bench in the case of Vyay Kumar Tamrakar v.Shandi Singh, 1993 (II) M PWN 155 held thatpresumption lies in favour of a document, which is registered. The aforesaidtwo judgments so relied upon are having no application in the suit for specificperformance of the contract. 35.In view of the facts of this case as discussed and also legal position emergesby various annunciations in the considered opinion of this Court, the burden toprove the agreements to sell dated 30.8.1990 lies on the plaintiffs. However,by the evidence the plaintiffs were required to discharge onus to prove theagreements to sell applying principle of onus probandi. The said burden wasrequired to be discharged by the plaintiffs which initially lies on them to prove the facts asserted in the plaint. When theplaintiff discharges such burden and gives evidence in support of the primafacie case, the onus shifts on the defendant to adduce the evidence in rebuttaland to meet the case of the plaintiff. Thus, even on agreeing with the argumentof Shri I. Husain having distinction in between onus of proof and burden ofproof, in the facts of the present case, the onus has not been discharged bythe plaintiffs proving the contents, genuineness, truthfulness of theagreements. In the light of the judgments of the Apex Court Rampal Singh(supra) and also H. Siddiqui (supra), the Court is duty bound to see the facttat the execution of the document has been duly proved explaining the contentsand in the facts of the case what is the probative value of agreements to selldated 30.8.1990 executed by Smt. Sushila Bai. It is true that in support of theplea of impostor defendants have failed to lead evidence, however, failure toprove defence does not reverse or discharge plaintiffs burden of proof. After meticulous exercise of the facts of the case and legalposition so emerges, in the opinion of this Court, the finding to shift burdenon the defendants merely having a plea of impostor and not discharging suchburden by the defendants decreeing the suits for specific performance by thetrial Court is unsustainable in law. It is to be further observed that theexecution of the agreements to sell dated 30.8.1990 has not been proved by theplaintiffs dispelling suspicious circumstances as discussed hereinabove. 36.In view of the foregoing discussion, in the considered opinion of this Court,the plaintiffs have failed to prove execution, contents, genuineness andvalidity of agreements to sell dated 30.8.1990. It is to be further observed that theexecution of the agreements to sell dated 30.8.1990 has not been proved by theplaintiffs dispelling suspicious circumstances as discussed hereinabove. 36.In view of the foregoing discussion, in the considered opinion of this Court,the plaintiffs have failed to prove execution, contents, genuineness andvalidity of agreements to sell dated 30.8.1990. Learned trial Court has notduly appreciated the evidence brought on record in the context of the aforesaidlegal position, however, committed serious error of law holding that theagreements to sell dated 30.8.1990 are proved and decreed the suits forspecific performance of contract filed by the plaintiffs. Therefore, Point No.(a) is answered accordingly. Re:Point (b) 37.Now to consider the point to prove the execution and the genuineness of thetransaction on the basis of the testimony of the power of attorney holder, thebasic provision has been specified under Order 3 Rules 1 and 2 of CPC, wherebyappearances etc. may be in person, by recognized agent or by pleader. Onreading thereto, it is apparent that the principal may assign to the agentauthorising for appearances and not for the acts done by the principal. The Apex Court while interpreting aforesaid provision inthe case of Janki Vashdeo Bhojwani (supra) has held in para 13 ,16 and 17 as under "13.Order III, Rules 1 and 2, Civil Procedure Code, empowers the holder of power of attorney to "act" on behalf of the principal.In our view the word "acts" employed in Order III, Rules 1 and 2,Civil Procedure Code, confines only in respect of "acts" done by thepower of attorney holder in exercise of power granted by the instrument. Theterm "acts" would not include deposing in place and instead of theprincipal. In other words, if the power of attorney holder has rendered some"acts" in pursuance to power of attorney, he may depose for theprinciple in respect of such acts, but he cannot depose for the principal forthe acts done by the principal and not by him. Similarly, he cannot depose forthe principal in respect of the matter which only the principal can have a.personal knowledge and in respect of which the principal is entitled to becross-examined. 16.In civil dispute the conduct of the parties is material. The appellants havenot approached the Court with clean hands. From the conduct of the parties itis apparent that it was a ploy to salvage the property from sale in theexecution of Decree. 16.In civil dispute the conduct of the parties is material. The appellants havenot approached the Court with clean hands. From the conduct of the parties itis apparent that it was a ploy to salvage the property from sale in theexecution of Decree. 17.On the question of power of attorney, the High Courts have divergent views. Inthe case of Shambhu Dutt Shastri vs. State of Rajasthan, 1986 2 WLL 713 it was held that a general power of attorney holder can appear, plead andact on behalf of the party but he cannot become a witness on behalf of theparty. He can only appear in his own capacity. No one can delegate the power toappear in witness box on behalf of himself . To appearin a witness box is altogether a different act. A general power of attorneyholder cannot be allowed to appear as a witness on behalf of the plaintiff inthe capacity of the plaintiff." 38.The Rajasthan High Court in the case of Sambhu Dutt Shastri Vs. State ofRajasthan, (1986) 2 WLL 713 (Raj) has heldas under : - "... a general power of attorney holder can appear, pleadand act on behalf of the party but he cannot become a witness on behalf of theparty. He can only appear in his own capacity. No one can delegate the power toappear in witness box on behalf of himself . To appearin a witness box is altogether a different act. A general power of attorneyholder cannot be allowed to appear as a witness on behalf of the plaintiff inthe capacity of the plaintiff." 39.The said judgment has further been given approval by Rajasthan High Court inthe case of Ram Prasad Vs. Hari Narain, AIR 1998 Raj 185 and it was held asthus: " the word "acts" used in Rule 2 of Order III of theCivil Procedure Code does not include the act of power of attorney holder toappear as a witness on behalf of a party. Power of attorney holder of a partycan appear only as a witness in his personal capacity and whatever knowledge hehas about the case he can state on oath but he cannot appear as a witness on behalfof the party in the capacity of that party. Power of attorney holder of a partycan appear only as a witness in his personal capacity and whatever knowledge hehas about the case he can state on oath but he cannot appear as a witness on behalfof the party in the capacity of that party. If the plaintiff is unable toappear in the court, a commission for recording his evidence may be issuedunder the relevant provisions of the CPC 40.In the case of Man Kaur (supra) Hon'ble the Apex Court has considered the judgment of Janki Vashdeo Bhojwani (supra), Shambhu DutShastari (supra) and Ram Prasad (supra). In the said case, it is held that theview taken by the Rajasthan High Court in the case of Sambhu Datt Shastri(supra) and Ramprasad (supra) discloses the correct legal position howeveraffirmed the view taken by Rajasthan High Court. In the said case it hasfurther been explained that when the statement of power of attorney holder isrecorded showing the personal knowledge then up to what extent such statementmay be relied upon to prove the execution of a document. The circumstances andprinciples showing the relevance of the statement of the power of attorneyholder summarized by Hon'ble the Apex Court is reproduced as under:- "(a)An attorney holder who has signed the plaint and instituted the suit, but hasno personal knowledge of the transaction can only give formal evidence aboutthe validity of the power of attorney and the filing of the suit. (b)If the attorney holder has done any act or handled any transactions, inpursuance of the power of attorney granted by the principal, he may be examinedas a witness to prove those acts or transactions. If the attorney holder alonehas personal knowledge of such acts and transactions and not the principal, theattorney holder shall be examined, if those acts and transactions have to beproved, (c)The attorney holder cannot depose or give evidence in place of his principalfor the acts done by the principal or transactions or dealings of theprincipal, of which principal alone has personal knowledge. (d)Where the principal at no point of time had personally handled or dealt with orparticipated in the transaction and has no personal knowledge of thetransaction, and where the entire transaction has been handled by an attorneyholder, necessarily the attorney holder alone can give evidence in regard tothe transaction. This frequently happens in case of principals carrying onbusiness through authorized managers/attorney holders or persons residingabroad managing their affairs through their attorney holders. This frequently happens in case of principals carrying onbusiness through authorized managers/attorney holders or persons residingabroad managing their affairs through their attorney holders. (e)Where the entire transaction has been conducted through a particular attorneyholder, the principal has to examine that attorney holder to prove thetransaction, and not a different or subsequent attorney holder. (f)Where different attorney holders had dealt with the matter at different stagesof the transaction, if evidence has to be led as to what transpired at thosedifferent stages, all the attorney holders will have to be examined. (g)Where the law required or contemplated the plaintiff or other party to aproceeding, to establish or prove something with reference to his 'state ofmind' or 'conduct', normally the person concerned alone has to give evidenceand not an attorney holder. A landlord who seeks eviction of his tenant, on theground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall underthis category. There is however a recognized exception to this requirement.Where all the affairs of a party are completely managed, transacted and lookedafter by an attorney (who may happen to be a close family member), it may bepossible to accept the evidence of such attorney even with reference to bonafides or 'readiness and willingness'. Examples of such attorney holders are ahusband/wife exclusively managing the affairs of his/her spouse, a son/daughterexclusively managing the affairs of an old and infirm parent, a father/motherexclusively managing the affairs of a son/daughter living abroad." 41.It is to be further noted that in the case of Man Kaur (supra), Hon'ble the Apex Court has relied upon the judgment of Vidyadhar(supra) of the Apex Court .In the said case, it was held that if a party is not presenting himself in thewitness box to prove the fact and making him available for cross-examination toother side a presumption would arise that the case set up by him is notcorrect. Thus in the said context the argument so advanced by Mr. ImtiazHussain heavily placing reliance on the judgment of Janki Vashdeo Bhojwani(supra) to say that the statement of K.D. Maheshwari to prove the otheragreement to sell ought to be relied upon is of no help to him. It is to beobserved that K.D. Maheshwari was present as one of the intended* purchaserwhile execution of the agreement of himself. ImtiazHussain heavily placing reliance on the judgment of Janki Vashdeo Bhojwani(supra) to say that the statement of K.D. Maheshwari to prove the otheragreement to sell ought to be relied upon is of no help to him. It is to beobserved that K.D. Maheshwari was present as one of the intended* purchaserwhile execution of the agreement of himself. By his statement he is unable toprove his own agreement to sell explaining the contents of the agreement to theexecutant who is old and pardanashin lady and to prove its genuineness andtruthfulness. By his own statement the identity of the executant Smt. SushilaBai has not been established. He is unable to dispel the suspiciouscircumstances i.e. why the subsequent power of attorney of Sushila Bai wastaken in the name of Mahesh Kumar Maheshwari specifying the fact that he canreceive the amount on behalf of Smt. Sushila Bai and sign the agreement. If inthe agreements to sell (Ex. P/2) the amount of consideration has been receivedthen there was no necessity to assign such power again to his brother MaheshKumar Maheshwari. In the statement of K. D. Maheshwari recorded in other suitsas power of attorney it has not been stated by him that the amount ofconsideration for a piece of land was settled before him with Smt. Sushila Bai.On the point of readiness and willingness of the plaintiffs conduct and act hasnot been explained by him in his statement which is necessary in a suit forspecific performance of the contract and to discharge the obligation ofcontract. If the plaintiff himself remained present in the Court as a witnessthen he can make the aforesaid statement. The defendant may have an opportunityto cross-examine the plaintiff on the said issue. It can be said by theplaintiffs that the contents of the agreements were explained and understood bythe Pardanashin lady proving its execution. However, the aforesaid fact has notbeen proved by K.D. Maheshwari even though he was present at the time ofexecution of other agreements and contesting the claim of other plaintiffs ontheir behalf as a power of attorney holder. It can be said by theplaintiffs that the contents of the agreements were explained and understood bythe Pardanashin lady proving its execution. However, the aforesaid fact has notbeen proved by K.D. Maheshwari even though he was present at the time ofexecution of other agreements and contesting the claim of other plaintiffs ontheir behalf as a power of attorney holder. It is further required to bementioned here that if the agreements to sell were executed on behalf of theplaintiff through the power of attorney holder K.D. Maheshwari then hisstatement may be material to prove the ingredients of the agreement to sellotherwise mere presence of K.D. Maheshwari would not itself is sufficient toprove the agreement to sell executed by the plaintiff with Smt. Sushila Bai. Insuch circumstances, the argument so advanced by Mr. Imtiaz Husain that thestatement of K.D. Maheshwari though recorded as power of attorney holder but itis based upon his personal knowledge to prove the agreement to sell dated30.8.1990 is of no help to him. 42.The judgment in the case of Smt. Gangawa Vs. Arjunsa, AIR 2001 Karnataka 231,Bhimappa V. Allisab, AIR 2006 Karnataka 231, so relied upon are of no help andthe said judgments are per incuriam in view of the judgment in the case ofMankaunwar (supra). The judgment of this Court in the case of Smt. Prabha DeviGoyal Vs . Laxmikant, 2000 (1) MPJR 151 is of no helpon facts and also in view of the judgment of Mankunwar (supra). In view of theaforesaid legal position and on analyzing the facts of the present case it isapparent that agreements to sell dated 30.8.1990 were executed' betweenplaintiffs and Smt. Sushila Bai and not through power of attorney holders. K.D. Maheshwari as a power of attorney holder in 4 suits and Pankaj Maheshwari inone suit were not aware regarding personal act of the plaintiffs disclosingtheir mind set and the talks entered with the executant S , mt . Sushila Bai. The plaintiffs themselves can prove the aforesaid fact and also payment ofconsideration which they have delivered to the executant Smt. Sushila Bai atthe time of execution of the agreements. If they appear in the witness box thenthey can prove that the contents of the agreements were explained to Smt.Sushila Bai who is an old, infirm and widow lady. They may further be in aposition to say that the possession was delivered to them specifying the partof the land. If they appear in the witness box thenthey can prove that the contents of the agreements were explained to Smt.Sushila Bai who is an old, infirm and widow lady. They may further be in aposition to say that the possession was delivered to them specifying the partof the land. The power of attorney holders under the law cannot appear as awitness on behalf of the principal for the act done by him. In suchcircumstances in 5 suits the testimony of power of attorney holders K. D.Maheshwari and Pankaj Maheshwari cannot be relied upon with respect toexecution and genuineness of the transaction alleged to have been entered intoin between the plaintiffs and late Smt. Sushila Bai. If the plaintiffs weremade available as witnesses then they may be cross-examined by the defendantsotherwise a presumption would arise that the case set up by the plaintiffs isnot correct in light of the judgment of Vidhyadhar (supra). In C.S. No.48-A/2001 K. D. Maheshwari himself has appeared as witness in the witness box,but he was unable to prove execution, genuineness and validity of theagreements to sell as discussed hereinabove, however, on the cost of repetitionit is not required to be discussed further. In their statement, power ofattorney holders K. D. Maheshwari and Pankaj Maheshwari have failed to provespecific boundaries and identity of the land involved in each agreement tosell. It is categorically admitted by K. D. Maheshwari in paras 10 and 39 thatno notice in writing was ever served either on Smt. Sushila Bai or her legalrepresentatives, insisting execution of registered sale-deed. Thus the state ofmind prevalent at the time of execution of the agreements to sell showinggenuineness and also the readiness and willingness has not been proved on thebasis of the statements of the power of attorney holders. Thus, the Point (b)is answered accordingly. Re: Point (c) 43.Now on consideration of argument of part performance and to deal with the issueof readiness and willingness which is to be proved by the plaintiff even onpayment of full consideration and by. Thus, the Point (b)is answered accordingly. Re: Point (c) 43.Now on consideration of argument of part performance and to deal with the issueof readiness and willingness which is to be proved by the plaintiff even onpayment of full consideration and by. delivery ofpossession so alleged in recital and is necessary for grant of a discretionaryrelief, the provisions of section 16 (c) of the Specific Relief Act arenecessary to look into, which is reproduced as under : "Itis to be observed that Section 16 (c) of the Specific Relief Act, 1963 puts anembargo in decreeing the suit for specific performance of contract in favour ofthe plaintiff, whereby who fails to aver and prove that he has performed or hasalways been, ready and willing to perform the essential terms of the contractwhich are to be performed by him (other than terms of the performance of whichhas been prevented or waived by the defendant). Explanation (ii) toSection 16 provides that for purposes of clause (c) of section 16, theplaintiff must aver performance of, or readiness and willingness to perform,the contract according to its true construction." 44.In view of the above, in a suit for specific performance the plaintiff shouldnot only to plead but prove his readiness and willingness to perform essentialterms of the contract leaving the terms which has been prevented or waived bythe defendant. The aforesaid provision has been considered and interpreted bythe Hon'ble the Apex Court in the case of Chandrani Vs. Kamalrani reported in 1993 (1) SCC 519 and held that in terms of contract coupled with the conduct ofvendee showing readiness and willingness to perform the contract has not beenproved, which is an essence to grant the discretionary relief in a case ofspecific performance of contract. The Hon'ble Apex Court considering the scopeof Section 16(c) and relying upon a judgment in the case of Ouseph Varghese Vs.Joseph Aley and others, reported in (1969) 2 SCC 539 held as under:- "9.... The plaintiff did not plead either in the plaint or at any subsequent stagethat he was ready and willing to perform the agreement pleaded in the writtenstatement of defendant. A suit for specific performance has to conform to therequirements prescribed in Forms 47 and 48 of the 1st Schedule in the CivilProcedure Code. The plaintiff did not plead either in the plaint or at any subsequent stagethat he was ready and willing to perform the agreement pleaded in the writtenstatement of defendant. A suit for specific performance has to conform to therequirements prescribed in Forms 47 and 48 of the 1st Schedule in the CivilProcedure Code. In a suit for specific performance it is incumbent on theplaintiff not only to set out agreement on the basis of which he sues in allits details, he must go further and plead that he has applied to the defendantspecifically to perform the agreement pleaded by him but the defendant has notdone so. He must further plead that he has been and is still ready and willingto specifically perform his part of the agreement. Neither in the plaint nor atany subsequent stage of the suit the plaintiff has taken those pleas. Asobserved by this Court in Pt. Prem Raj v. D.L.F. Housing and Construction(Private) (Ltd.) and another (Civil Appeal No. 37/66, decided on 4-4-1968) thatit is well settled that in a suit for specific performance the plaintiff shouldallege that he is ready and willing to perform his part of the contract and inthe absence of such an allegation the suit is not maintainable." 45.The said view has been in. the case of Abdul Khader Rowther Vs. P. K. Sara Baiand Others, reported in AIR 1990 SC 682 and held that along with pleading,evidence is also required. The remark is as thus : "11....His plaint does not contain the requisite pleadings necessary to obtain adecree for specific performance. This equitable remedy recognised by theSpecific Relief Act cannot be had on the basis of such pleadings andevidence." 46.The Hon'ble Apex Court further in case of N.P. Thirugnanam (dead) by Lrs. Vs.Dr. R. Jagan Mohan Rao and others, reported in (1995) 5 SCC 115 in para 5 hasheld as under:- "5....The continuous readiness and willingness on the part of the plaintiff is a conditionprecedent to grant the relief of specific performance. This circumstance ismaterial and relevant and is required to be considered by the court whilegranting or refusing to grant the relief. If the plaintiff fails to either averor prove the same, he must fail. This circumstance ismaterial and relevant and is required to be considered by the court whilegranting or refusing to grant the relief. If the plaintiff fails to either averor prove the same, he must fail. To adjudge whether the plaintiff is ready andwilling to perform his part of the contract, the court must take intoconsideration the conduct of the plaintiff prior and subsequent to the filingof the suit along with other attending circumstances. The amount ofconsideration which he has to pay to the defendant must of necessity be provedto be available. Right from the date of the execution till date of the decreehe must prove that he is ready and has always been willing to perform his partof the contract. As stated, the factum of his readiness and willingness toperform his part of the contract is to the adjudged with reference to theconduct of the party; and the attending circumstances. The court may infer fromthe facts and circumstances whether the plaintiff was ready and was alwaysready and willing to perform his part of contract." 47.Considering the aforesaid judgments, Hon'ble the Apex Court in the case of Man Kaur (supra) observedthat readiness and willingness and its obligation in terms of the contract isone of the ingredients to grant the decree of specific performance. Theplaintiff has to prove that he was ahvays willing to perform his part ofcontract including obligation in terms of the contract for which it isnecessary to him to step into the witness box and give evidence that he was allalong ready and willing to perform his part of the contract and subjected tohimself available for cross- examination on that issue. It is to be observedthat the plaintiff cannot obviously examine in his place, his attorney- holderwho did not have personal knowledge of the transaction and the readiness andwillingness. The readiness and willingness refer to the state of mind' andconduct of the purchaser, as also his capacity and preparedness. 48.On the said point Shri Imtiaz Husain has placed reliance 6n the judgments inthe case of M/s Chetak Construction Ltd. v. Om Prakash & others 2003 (II)MPJR 95 ; Malllappa v. Srinivasa Rao and others AIR 2004 Karnataka 31; Smt.Sohbat Dei v. Devi Phal and others 1971 SC 2192; Khivraj Chordia and others v.Esso Standard Eastern Inc. AIR 1975 Madras 374; Baijnath Singh v. Hajee VallyMahomed Hajee Abba AIR 1925 Privy Council 75 and Mithu Khan v. Ms. AIR 1975 Madras 374; Baijnath Singh v. Hajee VallyMahomed Hajee Abba AIR 1925 Privy Council 75 and Mithu Khan v. Ms. Pipariyawaliand others AIR 1986 M.P. 39 and contended that when the full amount ofconsideration has been paid and delivery of possession has been made, readinessand willingness to the contract is not required to be proved as partperformance was already there. 49.On consideration of rival submissions and on the facts of the aforesaid sixCivil Suits, the plaintiffs have failed to prove continuous readiness andwillingness on their part. Neither any notice in writing was ever served onSmt. Sushila Bai in her lifetime nor any notice in writing was ever served onthe legal heirs of Late Smt. Sushila Bai insisting upon execution of registeredsale deeds. The readiness and willingness to perform ones part of contract andits obligation also includes purchasing of stamp duty and registration chargesof sale deed which is incumbent upon vendee as per the evidence on record andin particular from the categorical and unequivocal admission made by the K. D.Maheshwari (PW-1) in his deposition, it is apparent that the plaintiffs havenever shown their intention to get the sale deeds executed in their favour.Plaintiffs have clearly developed cold feet in their case. The legal heirs ofdeceased Sushila Bai were never contacted by the plaintiffs to insist upon executionof registered sale deeds issuing notice in writing. Even during the life timeof Smt. Sushila Bai, Mahesh Kumar Maheshwari (PW-3), alleged power of attorneyholder of Smt. Sushila Bai, was never insisted upon to execute the sale deedsin pursuance of alleged agreements to sell (Ex. P/2). Thus in my consideredopinion, the plaintiffs have failed to prove continuous, readiness andwillingness to perform their part of the agreement. My viewalso find supports from the law laid down by the Hon'ble Supreme Courtin Man Kaur (supra). I am not impressed by the submission of learned Counselfor the Respondent that the question of readiness and willingness has becomeredundant because of full consideration was paid and the possession was alsogiven to the plaintiffs. The readiness and willingness is not restricted onlyto the extent of payment of full consideration and delivery of possession. Tomake arrangement for payment of Registration Charges and Stamp Duty is alsopart of readiness and willingness to perform ones part of contract in dischargeof his obligation to contract. The readiness and willingness is not restricted onlyto the extent of payment of full consideration and delivery of possession. Tomake arrangement for payment of Registration Charges and Stamp Duty is alsopart of readiness and willingness to perform ones part of contract in dischargeof his obligation to contract. In view of the foregoing plaintiffs have notproved the readiness and willingness to perform the obligation under theagreements granting discretionary relief of specific performance of agreementsto sell dated 30.08.1990 and failed to establish before the Court. In view ofthe said Point (c) is answered accordingly. Re:Point (d): 50.While granting decree for specific performance in favour of the plaintiffs, theTrial Court has also granted relief declaring the sale deeds dated 18.01.2001as null and void. It is not in dispute that the defendant No. 2,3,4 and 5 haveexecuted four sale deeds in favour of individual purchasers i.e. defendant No.7, 8, 9 and 10 on 18.01.2001 receiving the amount of consideration. Thepossession in pursuance of these sale deeds were also given by the 'defendantNo. 2 ,3 , 4 and 5 to the defendant No. 7, 8, 9 and 10.The names of the defendant No. 7, 8, 9 and 10 have also been mutated in revenuerecords. Bhu Adhikar and Rin Pustika (Ex. D/2, D/7, D/8, D /9)were also issued in favour of the defendants. It is said by Shri Imitaz Husain,learned counsel for the respondent No. 1 that the alienation was made ignoringthe order of injunction passed by the Trial Court on 04.12.2000 and, therefore,the lis pendens purchasers have acquired no title and interest in the disputedland. The registered sale deeds are null and void. It is well settled that thealienation made by the party during the pendency of the litigation is subjectto final decision of the litigation and the transaction, if any, is always notvoid. Hon'ble Supreme Court, recently in Vinod Seth Vs .Devinder Bajpai, (2010) 8 S.C.C. 1 has clearly laid down the law in this regard.In Azhar Sultan (supra), the Hon'ble Supreme Court further held that in caseplaintiff is failed to prove his entitlement to get the decree of specificperformance, the question of alienation of land in dispute to the subsequentpurchaser during the pendency of Trial would become redundant and the Courtneed not to decide the validity of the transaction entered between the partiesduring the pendency of the civil suits. Thus, the Trial Court, committed errorof law in declaring the sale deeds dated 18.01.2001 as null and void. The lispendens purchasers i.e. defendant No. 7, 8, 9 and 10 have acquired valid titleand their interest is required to be protected in view of law laid down by theHon'ble Supreme Court in Azhar Sultan (supra). It is relevant to note here thatin Civil Suit No. 22-A/1997 and Civil Suit No. 23-A/1997 only, the injunctionrestraining alienation was granted by the trial Court, but in Civil SuitN0.45-A/2001, Civil Suit No.46-A/2001, Civil Suit No.47-A/2001 and Civil SuitNo.48-A/2001 application for injunction was not filed, however as per orderdated 11.1.2001 passed by the trial Court reply filed by the appellants-. defendants was returned back and there was no order ofinjunction in the said four suits. However, the contention of Shri ImtiazHusain, counsel appearing on behalf of the plaintiffs that the injunction wasgranted in all the suits is factually incorrect. In any case in view of theaforesaid discussion, the argument of Shri Imtiaz Husain is without anysubstance, however, it stands rejected. 51.In view of foregoing it is apparent that execution of the agreements to selldated 30.8.1990 has not been proved by the plaintiffs for Which a decree of specific performance was prayed for in the suits. The execution ofthe lis pen dens sale-deeds dated 18.1.2001 of the disputed land was by thedefendants No. 2 to 5 in favour of defendants No. 7 to 10. As per the evidencethe purchasers were not having the knowledge of injunction granted by the trialCourt. On payment of the amount of consideration defendants No. 7 to 10purchased the disputed land. Thus, it is apparent that the plaintiffs areunable to prove the agreements to sell in their suits. Thus lis pen denssale-deeds in favour of defendants No. 7 to 10 executed by defendants No. 2 to 5 would not be null and void. The trial Court committed an error todeclare such sale-deeds as null and void, however, thefinding so recorded by the trial Court in this respect is hereby set aside.Thus, point (d) is answered accordingly. Re:Point (e): 52.In addition to the aforesaid points two other additional points are required tobe seen which relate to filing of suit within the reasonable time, as well asdelivery of possession on the suit land at the time of execution of agreementsto sell. Re:Point (e): 52.In addition to the aforesaid points two other additional points are required tobe seen which relate to filing of suit within the reasonable time, as well asdelivery of possession on the suit land at the time of execution of agreementsto sell. 53.In addition to the aforesaid, looking to the facts that the agreements to sellare executed on 30.8.90 and the plaintiffs have filed all the suits on 1.5.1995after more than four and half years and the plea of limitation has been raisedin written statement, however even if the time is not the essence of theagreement, but what may be the reasonable time to file a suit is a point forconsideration in the facts of this case. Simultaneously, if in the agreementthe boundaries of the land has not been specified, theagreed map has not been attached and without reaching on the spot thepossession has been delivered, however viability of findings of the possessionso recorded by the trial Court is also required to be seen. 54.In the cases of specific performance of contract filing of a suit within areasonable time to grant the discretionary relief is having substance to theissue. In the case of Veerayee Ammal v. Seeni Ammal, (2002) 1 SCC 134 the ApexCourt referring the Law Lexicon by P. Ramanatha Aiyar wherein word 'reasonable'has been described, held as thus:- 13.The word "reasonable" has in law prima facie meaning of reasonable inregard to those circumstances of which the person concerned is called upon toact reasonably knows or ought to know as to what was reasonable. It may beunreasonable to give an exact definition of the word "reasonable."The reason varies in its conclusion according to idiosyncrasy of the individualand the time and circumstances in which he thinks. The dictionary meaning ofthe "reasonable time" is to be so much time as is necessary, underthe circumstances, to do conveniently what the contract or duty requires shouldbe done in a particular case. In other words it means as soon as circumstancespermit. In. The dictionary meaning ofthe "reasonable time" is to be so much time as is necessary, underthe circumstances, to do conveniently what the contract or duty requires shouldbe done in a particular case. In other words it means as soon as circumstancespermit. In. P. Ramanatha Aiyar's The Law Lexicon it is defined to mean: "Areasonable time, looking at all the circumstances of the case; a reasonabletime under ordinary circumstances; as soon as circumstances will permit; somuch time as is necessary under the circumstances, conveniently to do what thecontract requires should be done; some more protracted space than 'directly';such length of time as may fairly, and properly, and reasonably be allowed orrequired, having regard to the nature of the act or duty and to the attendingcircumstances; all these convey more or less the same idea." 55.In the case Manjunath Anandappa Urf Shivappa Hanasi Vs. Tammanasa and others,reported in (2003) 10 SCC 390 , the Apex Court found that filing a suit forspecific performance after 6 years was not a reasonable time to grantdiscretionary relief and-may be a ground to refuse such relief as per Section20 of the Specific Relief Act. The Apex Court in the aforesaid case has observed as under:- "30The plaintiff filed the suit almost after six years from the date of enteringinto the agreement to sell. He did not bring any material on record to showthat he had ever asked defendant 1, the owner of the property, to execute adeed of sale. He filed the suit only after he came to know that the suit landhad already been sold by her in favour of the appellant herein. Furthermore, itwas obligatory on the part of the plaintiff for obtaining a discretionary reliefhaving regard to Section 20 of the Act to approach the court within areasonable time. Having regard to his conduct, the plaintiff was not entitledto the discretionary relief." 56.In view of the aforesaid legal position and looking to the facts of the presentcase, it is clear that the alleged agreements to sell were executed by Smt.Shushila Bai on 30.8.90 and she was died on 25.12.92. Having regard to his conduct, the plaintiff was not entitledto the discretionary relief." 56.In view of the aforesaid legal position and looking to the facts of the presentcase, it is clear that the alleged agreements to sell were executed by Smt.Shushila Bai on 30.8.90 and she was died on 25.12.92. In the facts of thiscase, defendants have taken the defence of impostor of executant and also thatthe agreements to sell are forged and fabricated, however, the plaintiffs mustexplain why the suits have not been filed during the life time of Smt. SushilaBai showing readiness and willingness to get the sale deeds executed in theirfavour by issuing a notice in writing. Thus plaintiffs were not having dare to file a suit against Smt. Shushila Bai during herlife time, which is a relevant factor in this case. The plaintiffs have notgiven any notice in writing to the legal heirs of the deceased Smt. Sushila Baishowing readiness and willingness for execution of the agreements to sell uptotwo and half years and tried to mutate their names on disputed land withouthaving any sale-deed in their favour. Similarly, no such notice was given tothe power of attorney holder Mr. Mahesh Kumar Maheshwari. in the said factseven if the time may not be an essence of the contract, but the suit which isfiled after more than four and half years seeking decree of specificperformance, however, in the facts of the case discretionary relief of specificperformance can be refused. The guidance may be taken from the judgment of theApex Court in the case of Manohar Lal alias Manohar Singh Vs. Maya Reported in 2003 (9) SCC 478 wherein it is observed that "Discretion as to decreeingspecific performance -Agreement to sell agricultural land - Suit for specificperformance of- Agreement proved by the plaintiff- appellant but the plea ofthe defendant that the plaintiff had obtained her thumb impression on someplaint paper, could not be out rightly rejected - On facts, the view taken bythe High Court that a just, legal and proper exercise of judicial discretionwould be not to direct specific performance. 57.In the facts of the present case it is apparent that the suits have not beenfiled during life time of the intended seller Smt. Sushila Bai. It is alsoapparent that plea of execution of the agreements by an impostor of Smt.Sushila Bai has been taken. 57.In the facts of the present case it is apparent that the suits have not beenfiled during life time of the intended seller Smt. Sushila Bai. It is alsoapparent that plea of execution of the agreements by an impostor of Smt.Sushila Bai has been taken. The agreements to sell soexecuted by her has not been proved by the plaintiffs coming in witnessbox and making themselves available for cross-examination to other- side. Thetestimony of the attesting witness is also not reliable to establish theagreements to sell. The identity of the executant Smt. Sushila Bai has not beenestablished by defendant No. 1 Kailash Agrawal or by the Notary, who hasnotarized the agreements to sell coming in witness box. The plaintiffs havenever issued any notice to the legal heirs of deceased Smt. Sushila Bai statingreadiness and willingness in writing. In such circumstances, in the opinion ofthis Court, filing of suits after more than four and half years of execution ofagreements to sell is not within the reasonable time to grant discretionaryrelief in favour of the plaintiffs. 58.On perusal of the agreements to sell it is apparent that total three Khasranumbers are there and the total land is 27.56 acres out of which 23.98 acreswas agreed to sell by these agreements to sell. In the agreements to sell dated30.8.1990 the boundaries of the land so agreed to sell are not clear. The mapof the said land has also not been attached. Thus the identification of aparticular land which is agreed to sell is itself not clear from the individualagreements. In his statement the power of attorney K.D. Maheshwari has admittedthat in agreements to sell fact regarding delivery of possession was mentioned,but on spot the possession was yet to be taken. After the death of Smt. SushilaBai when plaintiffs have applied for mutation on the basis of agreements tosell which was objected by defendants No. 2 to 5, andon their objection plaintiffs names were not mutated on the land in dispute butthe defendants names were mutated. On execution of the sale-deed by defendants No. 2 to 5 in favour of defendants No. 7 to 10their names have been mutated as apparent from Ex.D-2, Ex.D-7, Ex.D-8 andEx.D-9. Thus it is clear that in the revenue records the name of Smt. SushilaBai was recorded and after her death names of defendants No. 2 to 5 were entered into. On execution of the sale-deed by defendants No. 2 to 5 in favour of defendants No. 7 to 10their names have been mutated as apparent from Ex.D-2, Ex.D-7, Ex.D-8 andEx.D-9. Thus it is clear that in the revenue records the name of Smt. SushilaBai was recorded and after her death names of defendants No. 2 to 5 were entered into. On execution of the sale-deed by them in favourof defendants No. 7 to 10 their names have been mutated. In this context it isto be observed here that revenue entries indicate possession of the deceasedSmt. Sushila Bai, defendants No. 2 to 5 and thereafter defendants No. 7 to 10 bywhich the presumption of continuous possession of the defendants may be drawnwithout its delivery to the plaintiffs as admitted by the power of attorneyholder K.D. Maheshwari himself in his statement. In the said context it is tobe observed that genuineness and truthfulness of the agreements to sell soexecuted by Smt. Sushila Bai has not been established by the cogent evidencebefore the Court in view of the discussion so made hereinabove. However, insuch circumstances the finding of possession of the plaintiffs so recorded bythe trial Court is erroneous and liable to be set aside. Inview of consistent revenue entries Exs. D-2, D-7, D-8 and D-9 it is tobe held that the possession has not been delivered to the plaintiffs by thedefendants. Thus Point (e) is answered accordingly. 59.In First Appeal No.372/2001, First Appeal No.54/2002, No.55/2002, First AppealNo. 57/2002 and First Appeal No. 58/2002 application under Order 41 Rule 27read 151 of CPC taking-documents on record has the plaintiffs. Along with thesaid application the Chartered Accountant has been attached. The acknowledgmentof the income tax return of Sangeeta K.D. Maaheshwari and Suryakanta Maheshwarihas also been filed. In the application it is stated that the counsel for theplaintiffs appearing before the trial Court did not advice the plaintiffs tosubmit copy of the income tax return on record and because the plaintiffs arechallenging the payment of consideration, therefore, the said documents arenecessary to be taken oh record. Counsel For the appellants has opposed to takesuch document on record and contended that the reason why the documents couldnot be produced at the time when the decree appealed against was passed has notbeen properly specified, therefore, the said documents cannot be taken onrecord. After hearing and on perusal of the record it is apparent that in FA. Counsel For the appellants has opposed to takesuch document on record and contended that the reason why the documents couldnot be produced at the time when the decree appealed against was passed has notbeen properly specified, therefore, the said documents cannot be taken onrecord. After hearing and on perusal of the record it is apparent that in FA. No. 58/2002 and in FA. No.372/2001 certificate of CharteredAccountant issued on 14.11.2011 has been attached wherein it is said that theamount of consideration so paid to Smt. Sushila Bai has been shown in theincome tax return. Pan Card number of the plaintiffs has not been indicated inthe said certificate and since when the plaintiffs are income tax payee is alsonot clear. The Books of Accounts has also not been produced. 60.In F.A. No.55/2002 acknowledgment of income tax return of the assessment year1992-93 has been filed which is dated 16th of September, 1994. The agreementsto sell are dated 30.8.1990. The Pan Card was not available and it is mentionedthat the number is awaited. In F.A. No.54/2002 the acknowledgment of theassessment year 1991-92 and 1992-93 of 27th of March, 1995 has been filedwherein note has been put that the salary certificate not attached. Similarlyin F.A. No. 57/2002 income tax return of the assessment year 1992-93 along withthe acknowledgment of 3rd of April, 1996 has been attached. The aforesaidapparently indicates that the documents have been prepared after 4-5 years ofexecution of agreements to sell in their favour to mitigate the objections, ifany. As per Order 41 Rule 27 of CPC parties to appeal shall not be entitled toproduce the additional evidence whether oral of documentary, but in any case ifthe party seeking to produce additional evidence establishes that afterexercise of due diligence he could not produce those documents when the decreeappealed against was passed. In the present case the suits were filed on 1.5.1995.Decree was passed on 14.5.2001 and 5.10.2001, thereafterthe appeals have been preferred in the year 2001 and 2002. The applicationshave been filed during the course of final hearing before this Court inNovember, 2011. The reason so specified is that the counsel appearing on behalfof the plaintiffs in trial Court did not advice them to produce the documentsdo not seem to be reasonable looking to the fact that why those documents havenot been filed for about more than eight years during pendency of these appealsand no explanation is available to that effect. The reason so specified is that the counsel appearing on behalfof the plaintiffs in trial Court did not advice them to produce the documentsdo not seem to be reasonable looking to the fact that why those documents havenot been filed for about more than eight years during pendency of these appealsand no explanation is available to that effect. In the opinion of this Court,the reason so assigned in the application to take said documents on record isnot plausible and sufficient to exercise the discretion in favour of theplaintiffs to take those documents on record. In addition thereto in view ofthe discussion as made hereinabove, it is apparent that the execution ofagreements to sell after payment of amount of consideration has not been dulyproved showing genuineness and its correctness, therefore, the documents sofiled by the plaintiffs cannot be taken on record and the application underOrder 41 Rule 27 read with Section 151 of CPC filed by the plaintiffs standsrejected. 61.In view of foregoing discussion all the six appeals filed by the defendants No.2 to 5 and 7 to 10 are hereby allowed. The impugned judgment and decree dated14.05.2001 passed by the 2nd Additional District Judge, Bhopal in Civil SuitNo. 22-A/1997 and 23-A/1997 and also the common judgment and decree dated05.10.2001 passed by the 11th District Judge, Bhopal in Civil Suit No.45-A/2001 ,46 -A/2001,47-A/2001 and 48-A/2001 are herebyset aside. Consequently the suit filed by the plaintiffs are hereby dismissed. In the facts and circumstances of the case,the parties to bear their own costs.