JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—The plaintiff instituted a suit for specific performance alleging that defendant had executed an agreement to sell dated 18.5.1974 for the land described at foot of the plaint for total consideration of Rs. 5,000/- in favour of the plaintiff and that sum of Rs. 2500/- was paid as advance. The plaintiff contended that it was agreed in the agreement dated 18.5.1974 that remaining amount of consideration of Rs. 2500/- and expenditure towards registry would be paid within a period of two years and sale-deed would be executed and registered. The plaintiff contended that he arranged Rs. 2500/- and the expenditure towards registry and requested the defendant Ist set to execute sale-deed in pursuance of the agreement to sell dated 18.5.1974 but he did not respond. As such registered notice dated 22.5.1975 was sent stating therein that he would be present in the office of registrar on 28.5.1975. The defendant Ist set was asked to be present in the office of sub-registrar to execute the sale-deed. The defendant Ist set did not turn up before the sub-registrar for execution of sale-deed rather gave reply to the notice that land in question had been sold in favour of defendant IInd set and no agreement to sell as alleged by the plaintiff was entered into. In the written statement filed by the defendant Ist set, defendant No. 1 denied execution of agreement and further that no consideration of Rs. 2500/- was ever received. He rather contended that registered sale-deed dated 14.4.1975 was executed by him in favour of defendant IInd set. The amount of Rs. 8500/- received as consideration and possession of the disputed land had also been handed over to them. The contention of the defendant was that suit was filed in order to put pressure upon the defendant No. 1 for the reason that earlier Will was executed by him in 1970 in favour of his nephew. However, as the behaviour of his nephew and the plaintiff had changed with passage of time, being dissatisfied, he executed another Will in favour of his daughters. As soon as plaintiff came to know about the said fact he instituted suit to harass the defendant No. 1.The agreement dated 18.5.1974 relied upon by the plaintiff is forged and fabricated document. 2. The defendant IInd set i.e. defendant Nos. As soon as plaintiff came to know about the said fact he instituted suit to harass the defendant No. 1.The agreement dated 18.5.1974 relied upon by the plaintiff is forged and fabricated document. 2. The defendant IInd set i.e. defendant Nos. 2 to 6 contested the suit by filing written statement and contended that they were bona fide purchaser of the disputed land and had no information about the agreement dated 18.5.1974. They are in possession of the disputed land and the sale-deed dated 14.4.1975 executed in their favour had been acted upon. On the basis of pleadings two main issues framed by the trial Court and evidence was led by the parties. The trial Court after considering the evidence brought on record decreed the suit and directed the defendant No. 1 Jamuna Singh to execute sale-deed within a period of one month in pursuance of the agreement dated 18.5.1974. The trial Court while deciding the issues No. 1 and 2 which were framed regarding execution of agreement dated 18.5.1974 and whether defendant IInd set i.e. defendant Nos. 2 to 6 are bona fide purchaser for consideration without notice to the disputed agreement found that defendant IInd set had failed to prove that execution of sale-deed dated 14.4.1975 was bonafide act of defendant Nos. 2 to 6. 3. The finding of fact has been recorded that defendant Nos. 2 to 6 were never in possession of the disputed land. The sale-deed dated 14.4.1975 had never been acted upon. While coming to the said finding the trial Court recorded that there were contradictions in the statement of the defendant IInd set i.e. defendant Nos. 2 to 6 regarding knowledge of the agreement to sell. No proceedings for mutation of their name in the revenue record had been initiated nor any document had been produced to establish that they are in possession of the disputed land. The report of the Commissioner specifically states that there exist no ‘Medh’ on the spot as alleged by the defendant IInd set. Moreover the disputed land is the land of joint Khata of the parties and plaintiff is co-sharer in the possession of the land. There is nothing on record to suggest that there was any partition of the disputed land and, therefore, contention of the defendant IInd set that they were in possession of the disputed land was belied by the trial Court. 4. There is nothing on record to suggest that there was any partition of the disputed land and, therefore, contention of the defendant IInd set that they were in possession of the disputed land was belied by the trial Court. 4. The trial Court further found that defendant No. 1 had denied his signature in the agreement and thus denied the execution of agreement. The two reports of finger print expert and handwriting expert were produced by both the parties. The plaintiff had also produced one of the witness of the agreement who was examined. 5. Upon consideration of the reports of both the experts and comparison of signature of defendant No. 1 by the Court itself. The trial Court recorded the finding that there appears similarities between the signatures of Jamuna Singh and defendant No. 1. It further considered that defendants did not produce the alleged sale-deed dated 14.4.1975 executed in favour of defendant IInd set which must have contained the signatures of defendant No. 1 that too prior to sending notice dated 22.5.1975 by the plaintiff for execution of sale-deed. The specimen signature of Jamuna Singh was taken in the suit and there is every likelihood that he had tried to change his signature so as to deny the execution of agreement. The adverse inference was drawn for non-production of alleged sale-deed dated 14.4.1975. Lastly, trial Court considered the contention of the defendant No. 1 that there was no requirement of execution of agreement for the purposes of payment of loan as the income of defendant No. 1 was sufficient. However, in his oral statement recorded the defendant No. 1 stated that sale-deed dated 14.4.1975 was executed for repayment of loan and for purchase of bull. There was assertion of defendant No. 1 to the effect that he was in need of money for repayment of loan. The other minor discrepancies pointed out by the defendant in the agreement dated 18.5.1974 were found insufficient to throw out the case of the plaintiff and could not be relied upon. 6. The defendant being aggrieved filed an appeal, the lower appellate Court after reappraising the evidence allowed the appeal of the defendant and reversed the finding of the trial Court and suit was dismissed by the lower appellate Court. 7. Aggrieved by the decision of the lower appellate Court below plaintiff preferred second appeal which was admitted on 3.1.1978. 6. The defendant being aggrieved filed an appeal, the lower appellate Court after reappraising the evidence allowed the appeal of the defendant and reversed the finding of the trial Court and suit was dismissed by the lower appellate Court. 7. Aggrieved by the decision of the lower appellate Court below plaintiff preferred second appeal which was admitted on 3.1.1978. However, at the time of admission of the appeal no substantial question of law was framed. 8. Learned counsel for the appellant moved an application dated 28.5.2012 for framing of substantial question of law. The appeal was heard on the substantial question of law. After consideration of the judgment of both the Courts below and hearing the counsel for the parties, the substantial questions of law were framed during the course of hearing and both the counsels were heard on substantial questions of law framed as follows -: “1. Whether the lower appellate Court was justified in ignoring the findings of Trial Court, which had drawn adverse inference against the defendant for non-production of sale-deed and Will deed, which contained the natural signatures of Jamuna Singh for comparison? 2. Whether the lower appellate Court was justified in carving out its own case in drawing adverse inference with respect to purchase of stamp papers, utilized for formal execution of agreement to sell, from Azamgarh instead of Mohammadabad Gohna, when in fact the defendants had never put the plaintiff to cross examination on the said issue and even in the absence of any pleadings in their written statement? 9. Heard Shri Rahul Misra, learned counsel for the appellant and Shri A.K. Mishra, learned counsel for the respondent. 10. Learned counsel for the appellant submits that appellate Court had gone beyond the pleadings of the parties and considered various circumstances to negate the execution of agreement dated 18.5.1974.The expert report of both the parties was considered and lower appellate Court had examined the signatures of defendant No. 1 and the agreement exhibit-1 and specimen signatures of Jamuna Singh and recorded that there is doubt that signatures of Jamuna Singh, exhibit -1 has been written by him. 11. Learned counsel for the appellant further submits that while coming to the said finding, lower appellate Court had totally ignored the fact that sale-deed relied upon by the defendants Ist and IInd set dated 14.4.1975 was not produced by them even before the appellate Court below. 11. Learned counsel for the appellant further submits that while coming to the said finding, lower appellate Court had totally ignored the fact that sale-deed relied upon by the defendants Ist and IInd set dated 14.4.1975 was not produced by them even before the appellate Court below. The trial Court having drawn adverse inference for non-production of said sale-deed they could have produced it before the lower appellate Court so as to support their case. As per the case of the defendant sale-deed dated 14.4.1975 contained that admitting the signature of Jamuna Singh that too prior to notice sent by the plaintiff. 12. The notice for execution of sale-deed was sent on 22.5.1975 and, therefore, agreement dated 14.4.1975 could have been best evidence to demolish the claim of the plaintiff. The said agreement was deliberately withheld and not produced before the Court below. The specimen signatures taken on 26.4.1976 in the present suit cannot be relied upon to deny the claim of the plaintiff. The defendant in order to frustrate the case of the plaintiff must have made all efforts to change his signatures. The expert report of the plaintiff had noted down this aspect of the matter and recorded that despite best effort made by the defendant No. 1 to change there are similarities in the signature of five letters and two vowels, the similarities mentioned therein are sufficient to opine that writer of the disputed signature are same person, who had written specimen signature. 13. Learned counsel for the appellant further submits that lower appellate Court though found that the case of the plaintiff had been supported by the pleading as well as by attesting witness to the agreement and the report of the handwriting expert but had gone beyond for inquiry regarding genuineness of the document. Considering other circumstances that the stamp was purchased in Azamgarh and not from Mohmdabad and two years time was mentioned in the execution of sale-deed it had recorded them sufficient to show that purchased stamp was of back date. It further considered that the Will was changed by the defendant No. 1 which was earlier executed in favour of nephew of the plaintiff and later on in favour of daughter of defendant No. 1. The lower appellate Court recorded the finding that alleged agreement was forged and was prepared after sale-deed was executed in favour of the defendant Nos. It further considered that the Will was changed by the defendant No. 1 which was earlier executed in favour of nephew of the plaintiff and later on in favour of daughter of defendant No. 1. The lower appellate Court recorded the finding that alleged agreement was forged and was prepared after sale-deed was executed in favour of the defendant Nos. 2 to 6 and Will in favour of his daughters. 14. Learned counsel for the respondents submitted that lower appellate Court had rightly made inquiry with respect to genuineness of the document of agreement to sell and considered each and every details of the agreement relied upon by the plaintiff. The lower appellate Court had recorded the finding that signatures of defendant No. 1 exist only at one place on the agreement dated 18.5.74. The deed is written on one page in small letters and no signatures are there at the end of the document. The deed has been written in very small letters and effort has been made to accommodate the entire matter in one page sheet. The said circumstance is strong reason to conclude that document exhibit-1 is a forged document. He further submits that Commissioner report was duly considered by the lower appellate Court, it was found that there was no ‘Medh’ on the spot. The disputed land being land of joint Khata of plaintiff and defendant No. 1 it cannot be concluded that plaintiff being co-sharer of the disputed land is in possession over the entire piece of land including the land which was subject-matter of the agreement of 1974 exhibit-1. From the report of the Commissioner it is clear that plaintiff had never been put in possession of the disputed land. 15. Having heard the learned counsel for the parties, the Court found that judgment of the lower appellate Court cannot be sustained. The finding of lower appellate Court that agreement exhibit-1 is forged document on the basis of various circumstances such as purchase of stamp from Azamgarh, agreement written on one page only and period of two years for execution of sale-deed mentioned in the agreement are perverse findings. It appears that lower appellate Court considered totally irrelevant circumstances and did not consider material evidence on record. The lower appellate Court though recorded the finding that execution of document was proved by the plaintiff by producing sufficient documentary and oral evidence. It appears that lower appellate Court considered totally irrelevant circumstances and did not consider material evidence on record. The lower appellate Court though recorded the finding that execution of document was proved by the plaintiff by producing sufficient documentary and oral evidence. However, proceeded to examine minor discrepancies pointed out by the defendants. While considering the discrepancies pointed out the defendants lower appellate Court had totally ignored the fact that defendant did not produce sale-deed relied upon by them executed by defendant No. 1 in favour of defendant II set. The signatures on the said sale-deed undoubtedly can be the best piece of evidence to substantiate the contention of the defendant that signatures on agreement dated 18.5.1974 exhibit-1 was not his signature. The plaintiff had filed every document to establish his case whereas the best piece of evidence which could have been produced by the defendant to demolish the claim of plaintiff was not brought before the Courts below. The lower appellate Court did not consider the said aspect of the matter. The trial Court had recorded the definite finding against the defendant for non-production of sale-deed and Will deed which contained natural signature of Jamuna Singh for comparison and said finding was not even touched by the lower appellate Court and it proceeded totally in different direction. The trial Court having categorically recorded the finding that non-production of sale-deed and Will deed was deliberate act of the defendants and, therefore, rightly drawn adverse inference against them. 16. The defendant could have produced the said documents even before the lower appellate Court, however, they did not do so. Further the defendant II set had failed to prove that they were bona fide purchaser for consideration without notice and knowledge of the agreement. There are contraindications in their statements recorded before the Court below. The contention of the defendant No. 1 that sale-deed dated 14.4.1975 had been acted upon as possession was handed over to the defendant Nos. 2 to 6 was not established from the report of the commissioner itself. The finding recorded by the trial Court that alleged sale-deed dated 14.4.1975 is sham as no effort was made by the defendant II set for partition of the disputed land and possession of the same. 2 to 6 was not established from the report of the commissioner itself. The finding recorded by the trial Court that alleged sale-deed dated 14.4.1975 is sham as no effort was made by the defendant II set for partition of the disputed land and possession of the same. There is no document on record to establish the possession of the defendants No. 2 to 6 over the disputed land as alleged by the defendant No. 1. The finding that even commissioner report did not support the contention of the defendants regarding possession of defendants Nos. 2 to 6 is finding recorded on the basis of material evidence on record. 17. This apart, the admission of defendant No. 1 in his oral statement recorded that he was in need of money for repayment of loan was found true. The lower appellate Court had committed manifest error of law in ousting the claim of the plaintiff on the grounds discussed above. The finding arrived at are perverse. Sufficient evidence has come to the light to hold that defendant was in need of money for repayment of loan and the amount of Rs. 2500 was paid by the plaintiff.The alleged sale-deed executed in favour of defendant Nos. 2 to 6 is sham and without consideration. The adverse inference drawn by the trial Court is clearly legal and justified in the facts and circumstances of the case. The substantial questions of law framed are answered accordingly. 18. Before parting with the case the Court think it proper to point out one more aspect of the matter that period of agreement to sell dated 18.5.1974 to the alleged sale-deed dated 14.4.1975 is less than one year and one month and almost one month prior to sending the notice dated 22.5.1975 by the plaintiff indicating the willingness of executing the sale-deed. There is another aspect of the matter that the sale-deed alleged to have been executed in favour of defendant Nos. 2 to 6 in the month of April 1975 is only for Rs. 8500/- whereas total consideration in the agreement dated 18.5.1974 was Rs. 5000. The difference of Rs. 3500/- for consideration is not much and as per statement of the defendant No. 1 he needed money for repayment of loan. All these circumstances, weigh in favour of the plaintiff. 19. 8500/- whereas total consideration in the agreement dated 18.5.1974 was Rs. 5000. The difference of Rs. 3500/- for consideration is not much and as per statement of the defendant No. 1 he needed money for repayment of loan. All these circumstances, weigh in favour of the plaintiff. 19. In view of the answer given to the substantial questions of law framed in the appeal, the appeal of the plaintiff is allowed. The order and judgment of the lower appellate Court is set aside and order and judgment of trial Court is affirmed. 20. The suit for specific performance of agreement dated 18.5.1975 is hereby decreed and defendant No. 1 is directed to execute sale-deed in favour of the plaintiff. It may be recorded that plaintiff and defendant No. 1 died during the pendency of the present second appeal and heirs have been brought on record. The heirs of defendant No. 1 are directed to execute sale-deed in favour of heirs of plaintiff within a period of three months from the date of the order. In the circumstances of the case there shall be no order as to costs. ——————