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2022 DIGILAW 781 (AP)

Syed Hussain Bi v. Gangasani Venkata Lakshmi

2022-08-23

V.R.K.KRUPA SAGAR

body2022
JUDGMENT : The defendant before the trial Court has come up with this second appeal under Section 100 C.P.C. seeking to set aside the concurrent findings of the trial Court and the first appellate Court and to dismiss O.S.No.284 of 2002. 2. The respondent herein was plaintiff, who was successful in both the Courts below. 3. O.S.No.284 of 2002 was before learned Principal Junior Civil Judge, Sattenapalli and it was for specific performance of an agreement for sale dated 18.10.2000, whereunder this appellant allegedly agreed to sell the plaint schedule immovable property, which was Ac.1.00 cents of agricultural land situated in Dodleru Gram Panchayat area of Krosuru Sub-Registration of Guntur District for a valuable consideration of Rs.40,000/-. The plaint alleges that the plaintiff paid Rs.36,000/-and was to pay the balance sale consideration of Rs.4,000/-and was demanding the defendant to receive the same and execute the registered sale deed, but the defendant was dodging and thereafter, despite notice sent by the plaintiff, there was no response and that necessitated the suit. 4. The defendant put in appearance through her learned counsel and filed a written statement denying every averment in the suit. It is further stated that the agreement for sale alleged against her is a forged document and she never thought of selling any property and never received any money. It is further stated that the plaintiff is a well known litigant and was in the habit of creating fake documents. That the agreement for sale, being unregistered, cannot be looked into. This defendant issued appropriate reply notice. Subsequently, the plaintiff with a view to harass her filed a criminal case in C.C.No.127 of 2002 and the same is pending before learned Additional Munsif Magistrate Court, Sattenapalli. The plaintiff has no cause of action. With these averments, the defendant sought for dismissal of the suit. 5. The above referred pleadings would indicate that there was no contention from the defendant about any other financial transactions between the parties or between the defendant and other relations of the plaintiff. It would further show that the defendant had not pleaded any illiteracy on her part. One may also notice that one of the contentions in the plaint is about defendant handing over her title deed over the property to the plaintiff at the time of execution of the alleged agreement for sale. It would further show that the defendant had not pleaded any illiteracy on her part. One may also notice that one of the contentions in the plaint is about defendant handing over her title deed over the property to the plaintiff at the time of execution of the alleged agreement for sale. While the written statement traversing that and puts in a denial, the written statement is conspicuously silent as to how the alleged title deed went from the hands of the defendant to the hands of the plaintiff. 6. A reference to pleadings on both sides would indicate that the plaintiff asserted an agreement for sale and defendant denied the fact and termed it as a forged document. Therefore, burden was on the plaintiff to prove the case. As per the written statement, an allegation was made against the plaintiff that the plaintiff is a chronic litigant and is in the habit of creating fake documents. These facts being asserted by the defendant were to be proved by the defendant. It is in the context of above facts and circumstances, learned trial Court settled the following issues for trial: “1. Whether the agreement of sale dt. 18.10.2001 is a forged one? 2. Whether the plaintiff is entitled for specific performance of contract on the foot of agreement of sale dt. 18.10.2000 as prayed for? 3. To what relief?” 7. At the trial, the plaintiff testified as PW.1 and the scribe for agreement of sale was examined as PW.2 and one out of four attestors deposed as PW.3. The agreement for sale, which was in dispute, was marked as Ex.A.1. The registered gift deed dated 13.08.1991, which stood in the name of the defendant, which conferred title on the defendant which title she intended to part with under Ex.A.1 was produced by the plaintiff and was marked as Ex.A.2. An office copy of the notice that was sent by the plaintiff was Ex.A.3 and a postal acknowledgment indicating that this notice was received by the defendant became Ex.A.4. All the three witnesses were cross-examined on behalf of the defendant. Thereafter, when the case was set for evidence on behalf of the defendant, it was not adduced and the trial Court was generous to grant several adjournments. All the three witnesses were cross-examined on behalf of the defendant. Thereafter, when the case was set for evidence on behalf of the defendant, it was not adduced and the trial Court was generous to grant several adjournments. But the defendant without explaining any reasons did not utilize any of those opportunities and finally as the defendant failed to adduce any evidence either by herself or through anyone on her behalf either oral evidence or documentary evidence, learned trial Court closed the phase of collection of evidence and it set the matter for arguments on which date, the learned counsel for the plaintiff advanced arguments and the defendant remained unrepresented. 8. Having considered the entire material on record and the rival pleadings and the evidence that was made available to it, the learned trial Court found that evidence established the case of the plaintiff and answered all the issues in favour of the plaintiff and decreed the suit. 9. Aggrieved by that, the defendant preferred first appeal being A.S.No.234 of 2010 and the learned IV Additional District Judge, Guntur heard the arguments on both sides and considered the entire material on record and concurred with the trial Court’s judgment and recorded that there were no merits and what was alleged before learned trial Court alone was alleged before him and as a consequence, he dismissed the appeal. 10. It is against that judgment, the present second appeal is preferred by the defendant. On 25.02.2011 this Court noticed three points and stated them as substantial questions of law that did arise in this second appeal. They are as below: “1. Whether a suit for specific performance for sale could be decreed though the alleged executant was not appraised of its contents in the language that was known to the executant? 2. Whether a judgment based on surmises and conjectures would be a legal and proper method to decree a suit for specific performance? 3. Whether the burden of proof lies on the plaintiff to prove agreement for sale?” 11. Eleven years after framing of those substantial questions of law, the matter was argued by learned counsel for the appellant. 2. Whether a judgment based on surmises and conjectures would be a legal and proper method to decree a suit for specific performance? 3. Whether the burden of proof lies on the plaintiff to prove agreement for sale?” 11. Eleven years after framing of those substantial questions of law, the matter was argued by learned counsel for the appellant. Learned counsel for the respondent argued that it was a case of no evidence on behalf of the appellant and whatever was pleaded by the plaintiff was proved by the plaintiff through oral and documentary evidence and both the Courts below appropriately appreciated it and decreed the suit and there is no warrant for interference in this second appeal. 12. This Court has gone through the entire material on record. It has considered the submissions made on both sides. I have perused Ex.A.1-Agreement for sale. It is in Telugu language. It contains the purported thumb impression of the executant/appellant. It has four attestors and a scribe and all of them subscribed their signatures. This document was made on 18.10.2000. The 1st attestor is husband and 2nd attestor is son of the executant as was elicited by the defendant herself while cross-examining PW.1. Thus, in the presence of her family members and to their knowledge, this appellant allegedly executed Ex.A.1-agreement for sale. The evidence of PW.1 and the evidence of scribe, who is PW.2 and the evidence of attestor, being PW.3, indicate consistency and they all proved the execution of Ex.A.1 by this appellant. Therefore, the finding of the trial Court that Ex.A.1 was executed by the defendant is based on evidence and reasons. Learned first appellate Court having analysed all the facts and circumstances agreed with that finding rightly. 13. The written statement of this appellant filed before learned trial Court does not indicate that she did not know Telugu language. She never disclosed anywhere about the language she is conversant with. She being a resident of Sattenapalli of Andhra Pradesh State must be knowing Telugu language. While cross-examining PWs.1 to 3, never was it elicited that she did not know Telugu language. Simply because she subscribed her thumb impression and did not choose to put the signature does not necessarily mean that she is illiterate. Neither her illiteracy nor her ignorance of Telugu language were in the pleadings of defendant and they were not even suggested to PWs.1 to 3. Simply because she subscribed her thumb impression and did not choose to put the signature does not necessarily mean that she is illiterate. Neither her illiteracy nor her ignorance of Telugu language were in the pleadings of defendant and they were not even suggested to PWs.1 to 3. Thus, without any basis, the appellant contends that she was illiterate and was not having knowledge of Telugu language etc. There is absolutely no merit in this contention and this contention is not based on facts. 14. As noticed earlier, this appellant having pleaded certain aspects about the character of the respondent herein was given opportunity to establish those facts but she did not choose to prove any such fact by any positive evidence on her behalf. A perusal of the judgment of trial Court as well as first appellant Court would show that extensive consideration of oral and documentary evidence let in by this respondent/plaintiff. Thus, the decisions rendered were based on facts and reasons. Learned counsel for the appellant is unable to point out which aspect of the matter was decided by either of the lower Courts on any surmises or conjectures. Therefore, this point urged by the appellant is also a matter, which goes against the record. 15. Ex.A.1-Agreement for sale was found proved by both the Courts below based on the fact that the original agreement for sale was produced as per Ex.A.1 and its contents were proved by the sworn evidence of PW.1 and that aspect was supported by the sworn evidence of PW.2-scribe and PW.3-attestor. Thus, the burden that lied on the shoulder of the respondent/plaintiff was properly discharged and that was done in accordance with law. This appellant seems to question even that in this appeal. Learned counsel for the appellant failed to argue this aspect of the matter. 16. Thus, one could say that in truth and substance, no substantial question of law did arise in this appeal and whatever substantial questions of law that were framed earlier having been considered convinced this Court that there is no merit in any of the questions raised by the appellant/defendant. Therefore, all the points are answered against the appellant. 17. In the result, the Second Appeal is dismissed with costs. Therefore, all the points are answered against the appellant. 17. In the result, the Second Appeal is dismissed with costs. As a consequence of it, the judgments of the Courts below in granting specific performance of agreement for sale and all other terms prescribed in their decrees stand confirmed. As a sequel, miscellaneous applications pending, if any, shall stand closed.