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2018 DIGILAW 1451 (ALL)

Nanak Chand (Deceased) v. Budh Singh (Deceased)

2018-07-02

SIDDHARTH

body2018
JUDGMENT & ORDER : Siddharth, J. Heard Shri S.C. Verma, learned counsel for the appellants and Shri Mohan Yadav, learned counsel for the Respondent and perused the records. 2. This is plaintiff's second appeal against the judgment and decree dated 25.11.1998 passed by Sri V.S. Bajpai, District Judge, Aligarh in Civil Appeal No. 248 of 1978 allowing the appeal and setting aside the judgment and decree dated 31.05.1978 passed by Sri Mohan Lal, 2nd Addl. Civil Judge, Aligarh in Original Suit No. 330 of 1976 (Nanak Chand v. Buddh Singh). 3. Plaintiff instituted the suit for specific performance of contract of sale. 4. Brief facts of the plaint are that defendant, Budh Singh, is the owner of suit property mentioned at the foot of the plaint situated in Alleypur, Tehsil Hathras, District Aligarh; that plaintiff was in need of money and he mortgaged his land with the defendant for an amount of Rs. 6,000/- on 13.03.1972 and executed a registered mortgage deed; that thereafter he again needed some money and defendant requested him to sell the land to him for Rs. 28,500/- and execute a sale deed in his favour; that defendant agreed to execute an agreement of re-conveyance of the said property subject to repayment of Rs. 28,500/- within two years by the plaintiff; that plaintiff accepted the terms of the defendant and executed sale deed of disputed land in his favour on 07.09.1974; that defendant on the same day executed an agreement in favour of plaintiff whereby he agreed to reconvey the disputed property to the plaintiff within 2 years in case he re-pays Rs. 28,500/- to the defendant; that after the execution of the sale deed the plaintiff approached the defendant repeatedly to accept the money and execute the return sale deed in his favour as per the agreement, but the defendant failed to execute the same; that plaintiff sent a notice to the defendant but he did not comply the same; that plaintiff was always ready and willing to get the sale deed executed from the defendant after payment of due amount. Hence he instituted the suit. 5. The defendant filed his written statement admitting that plaintiff had mortgaged the land in suit in his favour on 13.03.1972 and that on 07.09.1974 a registered sale deed was executed by plaintiff in favour of defendant for Rs. Hence he instituted the suit. 5. The defendant filed his written statement admitting that plaintiff had mortgaged the land in suit in his favour on 13.03.1972 and that on 07.09.1974 a registered sale deed was executed by plaintiff in favour of defendant for Rs. 28,500/-; that defendant further averred that plaintiff had mortgaged the land in suit for Rs. 6,000/-on 13.03.1972 in favour of defendant and since plaintiff was in need of money he executed the sale deed in favour of appellant for Rs. 28,500/-; that defendant had agreed to reconvey the disputed property in favour of plaintiff and had executed an agreement to this effect on 07.09.1994; that it was provided therein that in case the plaintiff pays interest at the rate of Rs. 1.50 per six months, the defendant will reconvey the property to him and will execute sale deed in his favour; that in case the plaintiff does not pays the interest as agreed after six months and after the interest of eight months becomes overdue, the agreement will be revoked and plaintiff will have no right of reconveyance; that the above terms were not complied by the plaintiff and therefore defendant moved an application before Tehsildar, Hathras for mutation of his name over the suit land and the same was allowed after contest; that plaintiff filed an appeal before the District Magistrate (Revenue), Aligarh which was dismissed and revision preferred against the same before the Commissioner too met the same fate on 06.07.1977;that the defendant is recorded in revenue records and is in cultivatory possession over the suit property; that the agreement filed along with the plaint by the plaintiff is not a genuine document and does not bears the signature of defendant; that the signature thereon is forged and manipulated; that the original and genuine agreement is in possession of the plaintiff, terms whereof he has not complied and his right of enforcement of the agreement stands forfeited; that plaintiff was never, nor is, willing to get the sale deed executed in his favour; that suit is not maintainable since relief of possession has not been claimed and also being time-barred, it deserves to be dismissed. 6. The learned trial court framed the following issues on the basis of the pleadings of the parties:- 1- Whether the defendant executed an agreement to sell on 07.09.1974? If so, its effect? 6. The learned trial court framed the following issues on the basis of the pleadings of the parties:- 1- Whether the defendant executed an agreement to sell on 07.09.1974? If so, its effect? 2- Whether the plaintiff is entitled to reconveyance of suit property on the basis of agreement dated 07.09.1974? 3- Whether there was breach of agreement on the part of the defendant? If so, its effect? 4- To what relief, if any, is the plaintiff entitled? 7. The learned trial court took issue Nos. 1, 2 and 3 jointly and held that defendant had executed the agreement to sell on 07.09.1974; that plaintiff is entitled to reconveyance of the disputed property on the basis of this agreement and the defendant committed breach in the terms and conditions of the agreement and did not execute the sale deed after accepting the due amount. Issue No.4 was decided holding that plaintiff is entitled to a decree of specific performance of contract of sale and the suit was decreed. 8. Aggrieved by the judgment of the trial court, defendant preferred civil appeal before the lower appellate court. 9. The lower appellate court found that only dispute between the parties is in respect of terms and conditions of the agreement of reconveyance and secondly as to which party has committed the breach of terms and conditions of the agreement. 10. The lower appellate court found that at the time of execution of the agreement, it was agreed that plaintiff would pay interest at the rate of Rs. 1.50 per month and the same was payable six monthly. Plaintiff admitted payment of Rs. 1,400/- as interest to the defendant after six months but he did not produce any receipt of its payment. The payment was denied by defendant and lower appellate court found that the amount of interest comes to Rs. 2,565/- but only payment of Rs. 1,400/-was alleged and therefore the finding of the trial court on issue Nos.1, 2 and 3 was set aside holding that it was the plaintiff who had committed the breach of the terms and conditions of agreement and not the defendant. Lower appellate court further found that the agreement of reconveyance filed by the plaintiff was not a genuine document. 1,400/-was alleged and therefore the finding of the trial court on issue Nos.1, 2 and 3 was set aside holding that it was the plaintiff who had committed the breach of the terms and conditions of agreement and not the defendant. Lower appellate court further found that the agreement of reconveyance filed by the plaintiff was not a genuine document. Finding has been recorded that the burden of proving the signature of defendant on the agreement was upon the plaintiff since defendant has denied his signature thereon. The plaintiff failed to discharge the burden and did not produce any report of expert comparing the admitted signature of defendant with that of his signature on the agreement. The scribe of the agreement denied his handwriting and signature on the document and attesting witness, Virendra Singh, also denied his signature. Yet the plaintiff did not get the signatures compared with the admitted signatures of the aforesaid witnesses. It was found further that there is cutting on the back of the stamp paper and the year 1976 was changed to year 1974 and the finding of the trial court regarding the genuineness of the document was disputed on the ground that it failed to consider the cutting/overwriting on the back of stamp paper. Regarding readiness and willingness, the lower appellate court recorded finding that plaintiff failed to prove possession of money nor he proved how he arranged the same. In his statement, the court found contradiction regarding the availability of amount and on account of his shifting stand held that the finding of the trial court regarding readiness and willingness of the plaintiff is not correct and deserves to be set aside. 11. The lower appellate court allowed the appeal of the defendant and dismissed the suit of the plaintiff and aggrieved by the same, the plaintiff has approached this Court by way of this second appeal. 12. This second appeal was admitted on 17.12.1998 on the following substantial questions of law:- "1- Whether the learned lower appellate court arbitrarily exercised the jurisdiction in setting aside the decree of specific performance of contract?" "2- Whether the lower appellate court wrongly shifted the burden of proof upon the plaintiff/appellant?" 13. 12. This second appeal was admitted on 17.12.1998 on the following substantial questions of law:- "1- Whether the learned lower appellate court arbitrarily exercised the jurisdiction in setting aside the decree of specific performance of contract?" "2- Whether the lower appellate court wrongly shifted the burden of proof upon the plaintiff/appellant?" 13. Regarding first substantial question of law, it has been argued on behalf of the plaintiff/appellant that the lower appellate court has illegally interfered with the decree passed by trial court and has dismissed suit of plaintiff. A perusal of the judgment of the trial court shows that there was no dispute regarding execution of agreement dated 07.09.1974 regarding reconveyance of the property. It was admitted to the defendant that he executed the deed of reconveyance in favour of plaintiff but the dispute was regarding the terms and conditions mentioned in the deed. It was stated by the defendant that there was stipulation in the agreement that plaintiff shall pay interest at the rate of Rs. 1.50/- per six months to defendant on the amount of 28,500/-, in case the plaintiff fails to pay the interest agreed after six months and after interest for eight months becomes overdue, the agreement will be deemed to have been determined and the respondent will have no right of reconveyance. The terms of the agreement regarding payment of interest was admitted by the plaintiff in his statement before the trial court and he stated that he paid the interest of Rs. 1400/- to the defendant. The trial court did not quantify the amount of interest alleged to have been paid by the plaintiff to the defendant nor it verified it. The receipt of the amount paid by plaintiff to the defendant towards interest was not brought on record. It accepted the statement of plaintiff without any evidence on record. It is further notable that the plaintiff did not plead anything in his plaint about the terms and conditions of payment of interest on the amount of Rs. 28,500/- to the plaintiff for a period of 6 months and determination of agreement of reconveyance after eight months, in case of failure to pay the interest to the defendant. It was pleaded by the defendant for the first time in his written statement that there was such a condition of payment of interest on the amount of Rs. 28,500/-. 28,500/- to the plaintiff for a period of 6 months and determination of agreement of reconveyance after eight months, in case of failure to pay the interest to the defendant. It was pleaded by the defendant for the first time in his written statement that there was such a condition of payment of interest on the amount of Rs. 28,500/-. The trial court has also not gone into the question whether the plaintiff had capacity to make the payment of sale consideration since he did not proved his readiness and willingness by showing any source of income or availability of the amount in cash or in bank account or by other means whatsoever. 14. The lower appellate court has reversed the findings of fact by the trial court giving reasons and stating that the plaintiff has failed to prove that he had the capacity to pay the amount of sale consideration and he is in possession of the amount. Lower appellate court further found that the plaintiff had not produced any evidence of payment of Rs. 1400/- to the defendant by way of interest and it was further found that the interest paid by the plaintiff as per the agreement is on the lower side since it comes to Rs. 2,565/- and not Rs. 1400/- only. The lower appellate court has considered the findings of the trial court regarding readiness and willingness on the part of the plaintiff correctly and has come to a correct conclusion and therefore the first substantial question of law is decided holding that the lower appellate court did not interfere with the findings of fact recorded by the trial court by arbitrarly exercise of jurisdiction in setting aside the same. 15. Regarding the second substantial question of law, it has been argued that the court below has wrongly shifted the burden of proof on the plaintiff. It has been argued on behalf of the plaintiff's counsel that the burden of proof was on the defendant to prove correctness of statement of his witnesses who denied execution of agreement as scribe and witness of the deed, namely, Nanno Mal, DW-4 and Virendra Singh, DW-5.The witnesses admittedly belonged to the defendant and if they denied their signatures on the disputed agreement, the burden of proving the same was on the plaintiff and not upon the defendant. The defendant cannot be expected to prove that the witnesses are correct by calling for expert evidence without any prayer on behalf of the plaintiff. There is nothing on record to prove that the plaintiff ever prayed before the court that he may be provided with the admitted signatures of the DW-4 and DW-5 so that he may get an expert report regarding the correctness of the signatures of the witnesses on the disputed agreement. Therefore, the second substantial question of law is decided to the effect that the lower appellate court did not shift the burden of proof upon the plaintiff/appellant incorrectly. 16. In view of the above considerations, the judgment of the lower appellate court does not suffers from any infirmity and is hereby confirmed. 17. This second appeal is hereby dismissed. Parties shall bear their own costs.