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2022 DIGILAW 431 (RAJ)

Ganesh v. Laddu

2022-02-09

PRAKASH GUPTA

body2022
JUDGMENT 1. This Civil Second Appeal under Section 100 CPC has been filed by the appellants-plaintiffs (for short, 'the plaintiffs') against the judgment and decree dated 25.4.2017 passed by Addl. District Judge, Lalsot, Distt. Dausa (for short, 'the first appellate court') in Civil Regular Appeal No. 24/2016, whereby the first appellate court allowed the appeal filed by the respondent- defendant no.1 (for short, 'the defendant') and set-aside the judgment and decree dated 14.10.2016 passed by Senior Civil Judge, Lalsot, Distt. Dausa (for short, 'the trial court') in Case No. 127/2012 (69/2006) decreeing the plaintiffs' suit for specific performance of the agreement and permanent injunction. 2. Facts of the case are that the plaintiffs filed a suit for specific performance of the contract and permanent injunction against the defendants, wherein it was averred that the defendants no. 1 and 2 are having equal half share in land bearing khasra no. 71/1 (amended khasra no. 165/71) admeasuring 19 bigha 11 biswa situated in village Biharipura, Tehsil Lalsot, Distt. Dausa. The defendants entered into an agreement to sell dated 18.4.1988 with the plaintiffs for selling one bigha of land out of the aforesaid land in a sale consideration of Rs. 15,000/- and in part performance thereof, the defendants received the entire sale consideration and handed over possession of the suit land to the plaintiffs. Since then the plaintiffs are in continuous possession of the suit land and cultivating the same. The plaintiffs are ready and willing to perform their part of contract. When the plaintiffs asked the defendants for execution and registration of the sale deed, the defendants made false assurances, but subsequently the defendant Radha Krishna sold the entire land of his share in the land bearing khasra no. 71/1 (amended khasra no. 165/71) to other persons through a registered sale deed. 3. The defendant no. 1 Laddu filed written statement, wherein it was pleaded that name of Radha Krishna S/o Shriya was wrongly recorded in the Jamabandi, whereas Radha Krishna had no share in the land bearing Khasra No. 71/1. He denied to have sold one bigha land to the plaintiffs in a sale consideration of Rs. 15,000/-. It was also averred that neither an agreement to sell was executed by him with regard to the suit property nor possession of one bigha of land was given to the plaintiffs. He denied to have sold one bigha land to the plaintiffs in a sale consideration of Rs. 15,000/-. It was also averred that neither an agreement to sell was executed by him with regard to the suit property nor possession of one bigha of land was given to the plaintiffs. It was also averred that the defendant no.1 is solely in possession of the suit property and cultivating the same. It was further pleaded that either the defendant no.2 Radha Krishna or the plaintiffs have no concern with the suit property because defendant Radha Krishna had already gone in adoption of Mulya Meena and thereafter his rights in the suit property were extinguished. 4. The defendant no.2 Radha Krishna also filed written statement. 5. On the basis of pleadings of the parties, necessary issues were framed and thereafter evidence was led. After hearing the arguments, the trial court vide its judgment and decree dated 14.10.2016 decreed the plaintiffs' suit. Being aggrieved, the defendant no.1 Laddu filed an appeal before the first appellate court, which came to be allowed vide judgment dated 25.4.2017 and accordingly the judgment and decree dated 14.10.2016 passed by the trial court was set-aside. Hence, this second appeal. 6. Learned counsel for the plaintiffs submits that the agreement to sell dated 18.4.1988 was duly proved by the plaintiffs. In this regard, Ishaq Mohammad, scriber of the agreement to sell dated 18.4.1988 was produced, who proved the same. It was wrongly held by the first appellate court that the agreement to sell dated 18.4.1988 was not proved. In this regard, first appellate court wrongly discarded the evidence of Ishak Mohammad. It is submitted that when the scriber of the document was produced, there was no requirement to produce attesting witnesses of the document. The judgment dated 25.4.2017 passed by the first appellate court is based on misreading and non reading of the material evidence on record, therefore, this second appeal filed by the plaintiffs deserves to be admitted. 7. On the other hand, learned counsel for the defendants submits that the alleged agreement to sell dated 18.4.1988 was forged and fabricated and the same was never executed by defendant no.1. No attesting witness was produced to prove the alleged agreement to sell. The first appellate court has rightly held that the alleged agreement to sell dated 18.4.1988 has not been duly proved. No attesting witness was produced to prove the alleged agreement to sell. The first appellate court has rightly held that the alleged agreement to sell dated 18.4.1988 has not been duly proved. The finding of fact recorded by the first appellate court is based on proper appreciation of evidence, hence in the second appeal no interference therewith is required by this Court. 8. Heard. Considered. 9. From the written statement filed by the defendant no.1, it is evident that he denied execution of alleged agreement to sell dated 18.4.1988. Ishak Mohammad, scriber of the agreement to sell dated 18.4.1988 in his cross-examination categorically admitted that no money transaction took place before him and he did not know Laddu, Prabhu, Radha Krishna and Shriya. Although, later on he stated that it is wrong to say that he did not know Radha Kishan and Laddu, but it is immaterial when earlier he admitted that he did not know Laddu, Prabhu, Radha Krishna and Shriya. Therefore, in these circumstances, first appellate court was right in holding that one of the attesting witnesses should have been produced by the plaintiffs to prove the purported agreement to sell dated 18.4.1988, but the plaintiffs failed to do so. 10. It is also evident that the suit was filed on 26.6.2006, whereas part of the suit land had already been sold by defendant no. 2 to other persons i.e. before filing of the suit. 11. There is a finding of fact of first appellate court, which is based on proper appreciation of evidence and material on record. No question of law much less substantial question of law is involved in this appeal. For this reason, this second appeal is liable to be dismissed, which stands dismissed accordingly. 12. Consequent upon the dismissal of the appeal, interim order, if any, stands vacated and stay application and all pending applications, if any, also stand disposed of accordingly.