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Madhya Pradesh High Court · body

2013 DIGILAW 1527 (MP)

Sharda Bai v. Gendu Bai

2013-12-05

R.S.JHA

body2013
JUDGMENT 1. The appellant has filed this appeal against the judgment and decree dated 29th of January, 1996 passed in C.S. No. 62-A/92 whereby the suit for specific performance filed by the appellant has been dismissed. The original plaintiff and defendant both have died during the pendency of the appeal and are now represented by their legal representatives who have been brought on record. 2. The brief facts leading to the filing of the present appeal are that the appellant allegedly entered into an agreement for sale on 25.4.1989 in respect of 0.41 decimal of land comprise of khasra No.102/8, village Sodalpur, and 0.67 decimal of land of the same khasra situated on the opposite side of the canal belonging to respondent Gendu kunwar Bai. An amount of Rs.2500/- was allegedly paid by the appellant to the respondent Gendu Kunwar Bai on the date of execution of the agreement itself and Rs.20,000/- was paid thereafter to her on 8.6.1989 and Rs.30,000/- was paid on 9.5.1990 and the remaining amount was paid at the time of registration of the sale deed. 3. As the respondent Gendu Kunwar Bai failed to execute the sale deed or to accept the amount, therefore, the plaintiff filed a suit for specific performance against her which was registered as C.S. No. 62-A/92. After adducing the evidence the Additional District Judge, Harda has dismissed the suit by impugned judgment and decree dated 29.1.1996. Being aggrieved by the same, the present appeal has been filed before this Court. 4. The learned counsel appearing for the appellant submits that the Court below has failed to appreciate the oral and documentary evidence on record in its proper perspective. It is submitted that the Court below has misconstrued the evidence of DW 1 Gendu Kunwar Bai, DW 2 Shyamlal and PW 3 Ram Krishna Choudhary while recording the finding to the effect that the agreement to the sale was not executed by the deceased respondent Gendu Kunwar Bai and the signatures affixed thereon are forged. It is submitted that the Court below has misconstrued the evidence of DW 1 Gendu Kunwar Bai, DW 2 Shyamlal and PW 3 Ram Krishna Choudhary while recording the finding to the effect that the agreement to the sale was not executed by the deceased respondent Gendu Kunwar Bai and the signatures affixed thereon are forged. It is further submitted that a perusal of the evidence of PW 4 Champalal, PW 2 Lakhanlal and PW 3 Ram Krishna Choudhary clearly indicates and establish the fact that the agreement was drawn up on the instructions of the deceased respondent and the money was paid to her and that the deceased respondent and her husband i.e. DW 1 Gendu Kunwar Bai and DW-2 Shyamlal, have both admitted signing of the first page of the agreement. It is submitted that once they admit to the signing of the agreement, the findings recorded by the Court below become perverse and deserve to be set aside. 5. The learned counsel for the respondents per contra submits that the Court below on comparing the signatures on the second and third page of the agreement of sale Ex.P-1 with the signatures on the first page of the agreement has rightly recorded a finding to the effect that the signatures on the second and third page are forged. It is submitted that the Court below has also taken note of the fact that there was an unexplained discrepancy in the date of purchase of the stamp paper and the date of execution of the agreement and that there was no acknowledgment of receipt of payment of the consideration. 6. I have heard the learned counsel for the parties at length. 7. On a perusal of the impugned judgment and the documents available on the record specifically the statement of PW 2 Lakhanlal, PW 3 Ram Krishna Choudhary, PW 4 Champalal, DW 1 Gendu Kunwar Bai and DW 2 Shyamlal and the agreement of sale Ex.P-1, I am of the considered opinion that there is an apparent discrepancy and difference in the signatures on the first page and the second and third page of the agreement and these discrepancies are apparent by a mere appraisal of the signatures. 8. 8. The spelling of signatures of Gendu Kunwar Bai in the second and third page of the agreement does not tally with that of the spelling of the name of Gendu Kunwar Bai on the first page. Similarly, the signatures on the second and third page of Shyamlal do not tally with the signatures of Shyamlal in the first page. Quite apart from the above, the oral evidence of DW 1 and DW 2 clearly indicates that they have admitted signing only on the first page and the explanation given by them is that the son of the appellant obtained their signatures on a blank sheet of paper for the purpose of getting the matter, pending between the deceased respondent and her brother, compromised. Gendu Kunwar Bai and her husband Shyamlal DW 1 and DW 2 have further stated that they had not executed any agreement or agreed to sell the property and that the contents of the agreement have been fraudulently incorporated by the appellant. 9. The aforesaid witnesses have categorically denied acceptance of any amount towards the agreement as consideration for sale of land in question. 10. From a further perusal of the Document Ex. P-1 it is also clear that the second page of the agreement is blank and on the third page there is a note regarding payment of Rs.20,000/- to the respondent Gendu Kunwar Bai. However, as stated above the signatures on the second and third page of the agreement apparently are not that of deceased respondent or her husband. 11. In view of the aforesaid facts and circumstances of the case, I am of the considered opinion that the finding recorded by the Court below is based on proper appreciation of oral and documentary evidence on record and does not suffer from any perversity or material irregularity warranting interference by this Court. I am also of the opinion that the Court below has rightly dismissed the suit filed by the appellant seeking specific performance of the agreement by recording a finding that the deceased respondent had not entered into any agreement for sale of her property nor had any consideration passed between them. 12. In view of the aforesaid, I do not find any merit in the appeal which is dismissed. The judgment and decree of the trial Court dated 29.1.1996 is hereby affirmed.