2013 INSC 0883
Ramnivas Vyas & Others
v.
H. Srinivasa Bhati & Others
(Supreme Court Of India)
HON'BLE MR. JUSTICE G.S. SINGHVI HON'BLE MR. JUSTICE V.
GOPALA GOWDA
Civil Appeal No. 628 Of 2003 | 18-09-2013

V. Gopala Gowda, J.

1. This Civil Appeal is filed by the appellants questioning the correctness of the
impugned judgment and decree dated 23.8.2002 passed in C.C.C. Appeal No.
102 of 1997 by the High Court of Judicature of Andhra Pradesh at Hyderabad
by framing certain questions of law and urging grounds in support of the same
and prayed to set aside the same and restore the judgment and decree dated
2.12.1996 passed by the Ist Additional Judge, City Civil Court, Hyderabad (for
short the 'trial court') in O.S. No. 2112 of 1988.

2. In this judgment, for the sake of convenience, we would like to refer to the
ranking of the parties as assigned to them in the plaint presented before the trial
court. Brief facts and necessary legal contentions urged on behalf of the parties
are stated herein with a view to examine and find out as to whether the legal
representatives of the deceased plaintiff are entitled for the relief as prayed in
this appeal.

3. The case of the plaintiff is that defendant Nos.1 & 2, are the owners of the
suit schedule property i.e. mulgies bearing Municipal Nos. 15-8- 121 to 15-8-
123, Feelkhana, Begum Bazar, Hyderabad, executed Agreement of Sale dated
8.9.1988 (Ex.A3) agreeing to sell the suit schedule property in his favour for
consideration of Rs.6,65,000/-. It is his further case that prior to the execution of
Ex.A3 defendant Nos.1 & 2 received Rs.10,000/- from the plaintiff by way of
advance money on 14.8.1988 (receipt as per Ex. A2) to which receipt the P.W.
2 (brother of the plaintiff) is an attesting witness and the defendant Nos. 1 & 2
delivered the copies of documents relating to the title deeds of suit schedule

                     1  SpotLaw
property to the plaintiff, marked as Exs. A5 to A8. It is the further case of the
plaintiff that he got published the notices as per Exs. A9 and A10 on 29.8.1988
in local dailies, namely, 'Deccan Chronicle' and 'Siasat' inviting objections to
the proposed sale in his favour by defendant Nos. 1 & 2 in respect of the suit
schedule property. In response to the said publication, defendant Nos. 3 to 5 got
published notices as per Exs. A11 and A12 dated 3.9.1988 in the very same
daily newspapers alleging that they also have got title and interest in the suit
schedule property and the defendant Nos. 1 & 2 are not legally entitled to sell
the same. That apart, the plaintiff also received a telegram (Ex. A18) from an
advocate, Bhagwan Das Sharma purported to be issued on behalf of his client
Smt. Padma Bai w/o Ram Dev raising objections with regard to the sale of the
two mulgies of premises Nos.15- 8-121 and 15-8-122. However, the defendant
Nos. 1 & 2 received a further advance of Rs.1,50,000/- from the plaintiff on
8.9.1988 under receipt Ex. A4 and also executed the Agreement of Sale (Ex.
A3) in favour of the plaintiff asserting that they are the true, legal and lawful
owners of the suit schedule property. As per the terms and conditions agreed
between the parties in the Agreement of Sale, the transaction of sale in respect
of the suit schedule property had to be completed within a period of two months
and defendant Nos.1 & 2 were to obtain the necessary sanctions and permission
from the concerned authorities for completion of the transaction of sale. The
balance sale consideration of Rs.5,05,000/- was decided to be paid to the
defendant Nos. 1 & 2 at the time of registration of the Sale Deed. Thereafter, the
plaintiff received a notice dated 4.9.1988 (Ex. A19) from Shri Bhagwan Das
Sharma, Advocate alleging that the suit schedule property was agreed to be sold
by defendant Nos.1 & 2 in favour of his client, as she was residing in the mulgi
No. 15-8-122 as a tenant. Further, it is pleaded by the plaintiff that the
defendant Nos. 1 & 2 filed R.C. No.1039 of 1987 on the file of 1st Addl. Rent
Controller, Hyderabad, against one Bankat Lal which is pending and that the
alleged Agreement of Sale in favour of Padma Bai is false. It is further pleaded
by him that Shri Bhagwan Das Sharma, Advocate got published notice dated
13.9.1988 as per Ex. A16 in 'Hindi Milap' informing the general public that his
client Padma Bai agreed to purchase the three suit schedule mulgies from
defendant Nos. 1 & 2. In reply, the defendant Nos. 1 & 2 through their counsel
got published a notice dated 8.10.1988 (Ex. A17) denying the allegations made
in the public notice dated 13.9.1988 (Ex. A16) and they have categorically
stated that the only sale transaction they entered into is with the plaintiff.
Therefore, in the facts narrated above, the plaintiff got issued a registered notice
dated 5.11.1988(Ex. A21) calling upon the defendants Nos. 1 & 2 to comply
with the terms and conditions of the Agreement of Sale (Ex. A3) and asked
them to execute a Sale Deed in his favour. Since they failed to respond to the

2  SpotLaw
legal notice, the plaintiff filed the original suit against defendant Nos. 1 to 5 and
thereafter filed an application (I.A. No. 689 of 1993)for impleadment of
defendant No. 6 as he was necessary and proper party to the proceedings as he
got four Sale Deeds executed (Exs. A32 to A35) on different dates in April
1993 in respect of the suit schedule property in his favour from defendant Nos.
1 & 2. The trial court passed an order dated 17.9.1993 in I.A. No. 689 of 1993
and the plaint was amended seeking a direction to defendant No. 6 to join the
defendant nos.1 & 2 for execution of Sale Deed in favour of the plaintiff and
also for delivery of vacant possession of suit property. In the amended plaint, it
was stated that defendant No.6 was a tenant in the suit mulgi bearing No.
15.8.123 wherein he was carrying on business under the name of Srinivasa
Satyanarayana Bhati Kirana Shop. It was further alleged by the plaintiff that
defendant No.6 was fully aware of the pendency of the suit as well as the suit
transaction between the plaintiff and defendant Nos. 1 & 2 and despite the same
he had obtained Sale Deeds (Exs. A32 to A35) in collusion with defendant Nos.
1 & 2 and the same are in violation of the order of temporary injunction dated
5.12.1988 passed in I.A. No.1233 of 1988 in the suit. It was further contended
in the original suit proceedings that the sale in respect of the suit property in
favour of the defendant No. 6 is hit by lis pendens. Therefore, the plaintiff
pleaded that defendant No. 6 was also bound to join defendant Nos. 1 & 2 to
execute the Sale Deed in his favour in the event of the decree being passed in
his favour and to deliver vacant possession of the suit schedule property.

4. Defendant Nos. 1 & 2 contested the suit claim by filing a written- statement
on 27.12.1989 whereby they denied the aforesaid plaint averments and further
denied the execution of Agreement of Sale as per Ex. A3 and they received
Rs.1,60,000/- in total towards the part sale consideration as an advance amount
from the plaintiff. Further, they stated that the documents i.e. receipt dated
14.8.1988 (Ex. A2), Agreement of Sale dated 8.9.1988 (Ex. A3) and receipt
dated 8.9.1988 (Ex.A4) are forged, fabricated and created in collusion with
defendant Nos. 3 to 5 who are inimical to them. Further, they stated that they
are not aware of any notice that got published by the plaintiff in the Newspapers
nor the reply notices published by defendant Nos. 3 to 5 in the daily newspapers
as averred in the plaint. They also stated that they were unaware of any notice
having been issued by Shri Bhagwan Das Sharma, Advocate. They also denied
having entered into any transaction in favour of the plaintiff for the sale of the
suit schedule property and pleaded the trial court to dismiss the suit with
compensatory costs.

3  SpotLaw
5. Defendant Nos. 3 to 5 filed separate written-statement contesting the suit
claim of the plaintiff. They denied Agreement of Sale (Ex. A3) and further
stated that in the suit schedule property they are also entitled for their respective
share. Further, they contended that the Agreement of Sale (Ex. A3) is collusive
and illegal which is alleged to have been entered with the defendant Nos. 1 & 2
with a view to harass them.

6. Defendant No. 6 filed his written-statement denying the execution of
Agreement of Sale(Ex. A3) in favour of the plaintiff by defendant nos.1 & 2 in
respect of the said schedule property as well as the payment of advance amount
said to have been paid to them towards the part sale consideration. Further, it is
pleaded by him that he was in possession of mulgi bearing No. 15-8-123 as a
tenant and running Kirana Shop and defendant Nos. 1 & 2 are the owners of the
same who have been collecting rent from him since long time. It is further
stated that defendant Nos. 1 & 2 offered to sell all the three mulgies of the suit
schedule property to him and accordingly they executed the Agreement of Sale
dated 5.6.1988 (Ex.B4) in his favour for consideration of Rs.7,00,000/-, before
the alleged Agreement of Sale (Ex.A3) is said to have been executed by
defendant Nos. 1 and 2 with the plaintiff. He also pleaded that apart from
Rs.50,000/- paid under receipt dated 5.6.1988 marked as Ex.B1 to defendant
Nos. 1 & 2, he had further made payment of Rs.2,00,000/- by way of pay order
drawn on Syndicate Bank, N.S. Road, Hyderabad dated 30.12.1988 under Ex.
B2 receipt and another receipt of Rs.1,00,000/- was made through an account
payee cheque dated 10.1.1989 drawn on Syndicate Bank, under Ex. B3, towards
payment of advance money out of the sale consideration as agreed under the
Agreement of Sale (Ex. B4). Further, he had pleaded that since no Sale Deed
was executed within the time stipulated under the Agreement of Sale dated
5.6.1988 (Ex. B4), defendant Nos. 1 & 2 executed Ex. B5, another Agreement
of Sale dated 19.1.1990, by way of renewal. Thereafter, defendant Nos. 1 & 2
executed 4 Sale Deeds dated 23.4.1993, 29.4.1993, 28.4.1993 and 26.4.1993 in
favour of defendant No.6 as per Exs. A32 to A35 respectively and the balance
sale consideration was paid by him to them at the time of registration of Sale
Deeds. He further stated that there is no dispute as to the title of the defendant
Nos. 1 and 2 in respect of the suit schedule property and defendant Nos. 3 to 5
have no right in the suit schedule property. He further pleaded that the plaintiff
having shop in front of the suit schedule mulgi in occupation of defendant No.6
was fully aware of the sale transaction in his favour. By virtue of Sale Deeds

4  SpotLaw
executed by defendant Nos. 1 & 2 in his favour in respect of the suit schedule
property he has absolute right and interest in respect of the same. Therefore, he
has stated that the suit claim of the plaintiff against the defendants is
misconceived and the same is liable to be dismissed.

7. On the basis of the pleadings, the trial court framed the following three issues
for its determination:-

1) Whether the suit is bad for mis-joinder and non-joinder of parties?

2) Whether the Agreement of Sale and payments under it are true, valid and
binding on the defendants?

3) Whether the plaintiff is entitled to specific performance or the alternative
relief of refund with interest against defendants 1 and 2?

8. The suit went for trial. The plaintiff and his brother were examined as P.W.1
and P.W.2 (attesting witness) and he got marked documents A1 to A45 in
support of the suit claim. The defendant No. 6 got himself examined as D.W.1
and also examined another witness as D.W.2 and marked documents as Ex.
B1/receipt dated 5.6.1988 for Rs.50,000/-, Ex.B2/receipt dated 30.12.1988 for
Rs.2,00,000/-, Ex. B3 receipt dated 10.1.1989 for Rs.1,00,000/- and Ex. B4/the
Agreement of Sale dated 5.6.1988 and Ex. B5/Agreement of Sale dated
19.1.1990 to substantiate his case before the trial court.

9. The trial court on appreciation of the pleadings and evidence on record has
answered the issue Nos. 1 to 3 in favour of the plaintiff and come to the
conclusion and recorded the finding of fact holding that the Agreement of Sale
(Ex. A3) executed in favour of the plaintiff by defendant Nos. 1 & 2 is true,
valid and binding and therefore it has answered the issue No.3 holding that the
plaintiff is entitled to decree for specific performance of the Agreement of Sale
(Ex. A3) in respect of the suit schedule property and defendant Nos. 1, 2 & 6
are directed to execute the Sale Deed in favour of the plaintiff in respect of the

5  SpotLaw
suit schedule property. Accordingly, the trial court directed the plaintiff to
deposit the balance sale consideration of Rs.5,05,000/- within one month and on
such deposit the defendant Nos. 1, 2 and 6 were directed to execute the
registered sale deed in his favour within two months thereafter.

10. The defendant No. 6 being aggrieved by the judgment and decree dated
02.12.1996 passed by the trial court preferred appeal before the High Court of
Judicature at Andhra Pradesh, Hyderabad urging various legal grounds inter alia
urging that the findings and reasons recorded on the contentious issue Nos. 2 &
3 are not only erroneous but also suffer from error in law. Therefore, he prayed
for setting aside the same. It is necessary to mention here that defendant Nos. 1
& 2 did not choose to challenge the trial court judgment.

11. The appellate court, after hearing the learned counsel on behalf of the
defendant No.6 and the legal representatives of the plaintiff who were
impleaded as respondent Nos. 7 to 21 in the appeal before it, passed the
impugned judgment after framing the point - whether in the facts and
circumstance of the case the plaintiff is entitled to a decree for specific
performance of Agreement of Sale (Ex. A3)? The appellate court at paragraphs
18,23,24,29,30,31 & 32 of the impugned judgment on re-appreciation of
pleadings and evidence on record and careful examination of the findings of fact
recorded by the trial court, has held that the plaintiff cannot be granted a decree
for specific performance in respect of the suit schedule property and set aside
the findings of the trial court recorded on the above contentious issue Nos. 2
and 3 after holding that Ex. B4,the Agreement of Sale executed in favour of the
defendant No.6 by defendant nos.1 & 2 is true, valid and binding on them by
recording its reasons in the impugned judgment and further held that defendant
No.6 is a bonafide purchaser of the suit schedule property for valid
consideration under Ex. B4 which is a prior agreement than the Agreement of
Sale, Ex.A3 alleged to have been executed in favour of the plaintiff and
consequently held that the plaintiff is not entitled to a decree for specific
performance of the agreement Ex. A3 and set aside the finding and reasons
recorded by the trial court on the contentious issue Nos.2 and 3. Consequently,
the High Court allowed the appeal and set aside the judgment and decree passed
by the trial court. The legal representatives of the deceased plaintiff aggrieved
by the impugned judgment and decree filed this civil appeal seeking the relief to
set aside the impugned judgment and decree and prayed for restoration of the
judgment and decree of the trial court.

6  SpotLaw
12. The correctness of the findings and reasons recorded by the High Court on
the contentious point framed by it is challenged in this Civil Appeal, urging
various grounds in support of the questions of law framed. It was urged by the
learned counsel, Mr. Manu Shankar Mishra for the plaintiff that the High Court
has failed to see that along with the plaint, the plaintiff filed Ex. A3, the
Agreement of Sale dated 8.9.1988, and the High Court should have read the
answer given in the cross examination by P.W. 1, with reference to the receipt
dated 14.8.1988 which was issued to him by defendant Nos. 1 & 2 for receipt of
part of sale consideration. He further contended that, the High Court has
erroneously passed judgment by placing reliance on the following sentence
from the cross examination of P.W. 1 which is adverted to at para 24 of the
impugned judgment which reads thus:-

"defendant-respondent Nos. 1 & 2 never entered into any agreement with me to
sell the suit property for Rs.6,65,000/-".

He has further contended that the evidence of the P.W. 1 could not have been
read in isolation when there was Agreement of Sale, Ex.A3, executed by
defendant Nos.1 & 2, in favour of the plaintiff. Therefore, the finding recorded
on the contentious point is liable to be interfered with by this Court in exercise
of its appellate jurisdiction.

13. Further, it is urged by the learned counsel that the High Court has failed to
see that defendant Nos. 1 & 2 did not cross examine P.W. 1 (plaintiff),
therefore, the documents Exs. A1, A2 and A3 executed by them are proved. The
trial court has compared the signatures found on Exs. A1, A2 and A3 with the
undisputed signatures of defendant Nos. 1 & 2 found on the certified copies of
Sale Deeds Exs. A32 to A35, and other documents viz. Exs. A36 to A44 in the
pleading filed in the original suit proceeding and recorded the finding of fact on
the contentious issue No. 2 and rightly held that the plaintiff has proved the
execution of the Agreement of Sale by defendant Nos. 1 & 2 in respect of the
suit schedule property. Therefore, the appellate court has erred in re-
appreciating the said documentary evidence and reversing the finding of fact
recorded by the trial court on the contentious issue No. 2, and the same is liable
to be set aside as it is an erroneous finding.

7  SpotLaw
14. It is further contended by Mr. Manu Shanker Mishra, learned counsel on
behalf of the plaintiff that the High Court has failed to see the evidence elicited
in the cross examination of P.W. 1 & P.W.2 by the 6th defendant's counsel. He
had no right to question the Agreement of Sale executed in favour of the
plaintiff by the defendant Nos.1 & 2, therefore, the evidence of P.W. 1
regarding execution of Ex. A3, the Agreement of Sale by his vendors remained
unchallenged and no rebuttal evidence was adduced on their behalf in this
regard. Therefore, the entire cross examination made to P.W. 1 on behalf of the
6th defendant is not at all relevant, hence the same could not have been relied
upon to set aside the finding of fact of the trial court on the relevant contentious
issue. Further, the High Court should have considered that the defendant Nos. 1
& 2 did not enter the witness box before the trial court to prove their plea that
their signatures on Exs. A2 to A4 are forged. It is further contended that the
High Court has failed to see that the signatures of defendant Nos. 1 & 2 on Exs.
A2, A3 and A4 were compared with their admitted signatures on the counter
affidavit filed to I.A. No. 1133 of 1988, the written statement filed in the
original proceeding suit, on the Vakalat filed in the suit and on documents Exs.
A36 to A44 which would clearly disclose the fact that the signatures found on
Exs. A2, A3 and A4 are that of defendant Nos. 1 & 2. Therefore, the trial court
has rightly compared the same and appreciated the documentary evidence on
record and recorded the finding of fact while answering the issue No. 2 and
rightly held that Ex. A3, the Agreement of Sale executed in favour of the
plaintiff is valid and binding on defendant Nos. 1 & 2. Further, it is contended
by the learned counsel that the High Court failed to notice the relevant averment
made in the counter affidavit filed by them to the application of the plaintiff for
grant of temporary injunction and also in the written statement filed by them on
27.12.1989, wherein they have not mentioned anything about the execution of
the agreement of sale in favour of the 6th defendant on 5.6.1988. The High
Court has further failed to consider the notice dated 8.10.1988 (Ex. A17)
wherein the defendant Nos. 1 & 2 have stated that they have not entered into
any agreement with anyone except with the plaintiff. It is further contended that
the High Court failed to see that if defendant Nos. 1 & 2 really had no collusion
with the defendant No. 6 there could not have been any possibility of obtaining
registered sale deeds in favour of the 6th defendant in respect of the suit
schedule property, particularly, when the original suit is pending before the trial
court and an order of temporary injunction was passed after satisfying that the
plaintiff has made out the prima facie case against defendant Nos. 1 & 2 and
they were restrained from alienating the suit schedule property. The High Court

8  SpotLaw
has gravely erred in holding that defendant Nos. 1 & 2 have executed Ex. B4,
the Agreement of Sale dated 5.6.1988 in favour of the defendant No. 6 and it
denied the relief granted by the trial court in favour of the plaintiff. The High
Court failed to notice the fact that if Ex. B4, the Agreement of Sale, was true
and genuine, there was no necessity for the defendant Nos. 1 and 2 to execute
another renewal agreement, Ex.B5 and even according to the recital contents of
the Agreement of Sale, time was fixed for execution of registered Sale Deed as
31.3.1989 which was altered to 30.6.1989. Therefore, the defendant No.6 could
have enforced Ex. B4 the Agreement of Sale within 3 years from the date fixed
for registration i.e. 31.3.1989 or 30.6.1989. Therefore, the defendant No.6 had
time till 1992 to enforce Ex. B4 Agreement of Sale dated 5.6.1988, and there
was no necessity for the defendant No.6 to obtain a renewal agreement in 1990
from the defendant Nos. 1 & 2. But in 1990 itself the 6th defendant obtained
renewal of the Agreement of Sale, Ex.B5. Therefore, the learned counsel
submits that the above circumstances would also support the case of the plaintiff
that there was collusion between defendant Nos. 1, 2 & 6 to defeat the right of
the plaintiff which is the most important aspect of the case and this has not been
properly appreciated by the High Court while setting aside the findings of fact
recorded on the contentious issue Nos. 2 and 3 by the trial court, by answering
the contentious point No. 1 in the impugned judgment.

15. He further urged that the High Court also failed to notice another aspect of
the matter namely, that in the Agreement of Sale in favour of defendant No. 6,
the consideration was Rs.7,00,000/-, but four Sale Deeds were executed by
defendant nos.1 & 2 to circumvent the provisions of the Income Tax Act by
valuing the property at less than Rs.2,00,000/- in each Sale Deed. It is further
submitted by him that if the Agreement of Sale dated 5.6.1988 between
defendant Nos. 1 & 2 on one hand and defendant No. 6 on the other, really
came to be executed by them on the said date, there is no reason why the rent
from defendant No. 6 was waived from February 1989 and also there was no
need for execution of another agreement on 19.1.1990 by way of renewal of the
same in his favour.

16. It is further contended by the learned counsel for the plaintiff that the High
Court has not noticed that the trial court granted ex-parte temporary injunction
on 5.12.1988, not to alienate the suit schedule property and the defendant Nos. 1
and 2 received a part of the consideration i.e. Rs.50,000/- on 05.06.1988 as per
Ex. B1, Rs.2,00,000/- on 30.12.1988 as per Ex. B2 and Rs.1,00,000/- on

9  SpotLaw
10.01.1989 as per Ex. B3. The alleged Agreement of Sale dated 05.06.1988 (Ex.
B4) in favour of defendant No.6, is in contravention of the said order of
temporary injunction. Therefore, the High Court should not have considered the
said payments to hold that the Agreement of Sale (Ex. B4) executed in favour of
defendant No. 6 by the defendant Nos. 1 and 2 was held to be valid. Further, it
is contended that once the defendant Nos. 1 and 2 and defendant No. 6 executed
Ex. B5, the fresh Agreement of Sale by way of renewal on 19.01.1990 after an
order of temporary injunction passed by the trial court on 5.12.1988, the
Agreement of Sale was hit by the doctrine of 'lis pendens' and is contrary to the
interim order of temporary injunction and therefore, the same could not have
been given effect to and relied upon by the appellate court to reverse the
findings of fact recorded on the contentious issue Nos. 2 and 3 in favour of the
plaintiff. Therefore, it is urged that the High court is not justified in allowing the
appeal of the defendant No. 6 by merely placing reliance on a sentence in the
cross-examination of P.W. 1, by taking it out of context. Further, it is contended
by the learned counsel that the High Court ought to have taken the conduct of
defendant Nos. 1 and 2 on one side and defendant No. 6 on the other, and
dismissed the appeal filed by him, by affirming the judgment and decree of the
trial court.

17. The learned counsel on behalf of the plaintiff has placed reliance upon the
following decisions of this Court in support of his legal submissions:-

Bharat Singh & Ors. v. Bhagirathi [1966) 1 SCR 606], Nagindas Ramdas v.
Dalpatram Ichharam & Ors.[( 1974) 1 SCC 242)], Chikkam Koreswara Rao v.
Chikkam Subba Rao & Ors.[( (1970) 1 SCC 558)], Nagubai Ammal & Ors. v.
B. Shama Rao & Ors.[( 1956 SCR 451)], Surjit Singh & Ors. v. Harbans Singh
& Ors.[( 1995) 6 SCC 50)], Man Kaur v. Hartar Singh Sangha[(2010) 10 SCC
512)] and Saradamani Kandappan v. S. Rajalakshmi & Ors.[( (2011) 12 SCC
18)].

18. The learned Senior Counsel Mr. Pallav Shishodia on behalf of defendant
No. 6 has placed reliance on the findings and reasons recorded by the appellate
court on the contentious point contending that the Division Bench of the High
Court on proper re-appreciation of the pleadings and evidence on record has
rightly set aside the erroneous findings recorded by the trial court on the
contentious issue Nos. 2 & 3 by recording cogent and valid reasons while

10  SpotLaw
answering the contentious points framed by it. Further, it has rightly held that
the trial court has committed a serious error both on facts and law in passing the
judgment and decree for specific performance in favour of the plaintiff in
respect of the suit schedule property. Further, direction issued by the trial court
to the defendant Nos.1, 2 & 6 to execute the Sale Deed in respect of the suit
schedule property is contrary to pleadings and evidence on record as well as the
law laid down by this Court in a catena of cases. Therefore, he has requested
this Court not to interfere with the impugned judgment and order passed by the
appellate court.

19. Further the learned senior counsel appearing on behalf of defendant No. 6
vehemently placed reliance upon the admission made by the plaintiff, P.W. 1 in
his cross examination on 14.6.1995 as he had categorically admitted in his
evidence that there is no Agreement of Sale dated 08.09.1988 executed by the
defendant Nos. 1 & 2 in his favour in respect of the suit schedule property. This
important aspect of the matter has been omitted by the trial court while
recording the finding on the relevant contentious issue Nos.2 and 3 whereas the
appellate court has rightly adverted to the same and found fault with the
findings of fact recorded by the trial court on the contentious issue No. 2 with
reference to the Agreement of Sale (Ex. A3) dated 08.09.1988 and held that it
has not been proved by the plaintiff holding that the finding recorded by the trial
court that the Agreement of Sale (Ex. A3)is valid, true and binding on defendant
Nos. 1 & 2, is erroneous as the same is contrary to the legal evidence on record.
Apart from the said findings of fact recorded by the trial court in the impugned
judgment on the correctness of the finding on issue Nos.2 and 3, the appellate
court has further observed and it has recorded the finding stating that by perusal
of the judgment of the trial court, it has referred to the evidence but did not
consider the same in arriving at a conclusion that Ex. A3 Agreement of Sale is
not true, valid and binding on the defendant Nos. 1 & 2. It was further
contended by him that the appellate court on re- appreciation of evidence and
pleadings on record has held that the plaintiff failed to prove that Ex. B4, the
Agreement of Sale was executed in favour of the defendant No. 6 by defendant
Nos.1 & 2 with a view to deny rights of the plaintiff and that it is forged and
concocted as pleaded by him is not proved by producing the cogent evidence as
it was required for him to prove the fact as per the provisions of Sections 101,
103 and 104 of the Evidence Act, 1872, which provisions provide that the party
who asserts the plea must prove the fact. This has not been done by the plaintiff
in the instant case. Therefore, the appellate court has rightly set aside the
erroneous finding of fact recorded by the trial court on issue No. 2 and rightly

11  SpotLaw
set aside the judgment and decree of the trial court and awarded the
compensation in favour of the plaintiff which is in conformity with the
provisions of Section 22(1) of the Specific Relief Act, 1963. Therefore, the
learned senior counsel has prayed to this Court for dismissal of the appeal and
not to interfere with the impugned judgment and decree of the appellate court.

20. The substantial questions of law that would arise in this case are:-

1) Whether the findings of fact recorded by the High Court holding that plaintiff
is not entitled to a decree for specific performance in respect of the suit schedule
property on the basis of the Agreement of Sale (Ex. A3), is legal and valid?

2) Whether the appellate court is justified in reversing the findings of fact
recorded on the contentious issue Nos. 2 & 3 by the trial court in its judgment?

3) What decree?

21. Both the point Nos. 1 and 2 are inter-related with each other, therefore, the
same are answered together by assigning the following reasons :-

We have carefully examined the above rival legal contentions urged on behalf
of the parties with a view to find out the correctness of the findings recorded by
the High Court in its impugned judgment. The fact is that the plaintiff-P.W.1
was cross examined on 14.6.1995 by the counsel for defendant No. 6 in the
open court and the same has been recorded by the trial court in its order passed
in I.A. 643 of 1995, wherein it is held that the evidence of P.W.1 was recorded
by the trial judge in open court by reading it out loudly and there was no
mistake on the part of the typist who recorded his deposition. The said finding
and observation made by the trial Judge in its order on the above application
could not have been discarded by it, for the reason that the deposition of P.W.1
was recorded in the open court in the presence of the plaintiff's counsel and
therefore the same cannot be termed as incorrectly recorded as contended by
him unless it is proved by him by producing cogent evidence to show that his
deposition was not correctly recorded by the court. Therefore, we have to hold

                 12                                                       SpotLaw
that the contentions urged on behalf of the plaintiff that the evidence of P.W.1
in so far that admission portion of the plaintiff was incorrectly recorded by the
trial court cannot be accepted, but on the other hand we have to hold that it was
correctly recorded and the same must be accepted as true and correct as the
same was recorded in the open court. The aforesaid admission of P.W. 1 the
plaintiff, which is a very relevant and important piece of evidence has been
conveniently omitted by the trial court while recording its finding on the
contentious issue No.2 in its judgment. The trial court after referring to the
pleadings and documentary evidence on record has made certain observations
stating that the defendant No. 6 did not produce the original Sale Deeds Exs.
A32 to A35, and only certified copies were made available. Further, the trial
court after adverting to the other documentary evidence, Exs. A36 to A45, the
certified copies of the proceedings in other cases in which the signatures of
defendant Nos. 1 & 2 were there, considered them for the purpose of comparing
the signatures found on Exs. A2 to A4 and recorded the finding of fact and held
that the plaintiff has proved the execution of Agreement of Sale, Ex. A3 in his
favour by the defendant Nos. 1 & 2 and further it has erroneously held that the
same is true, valid and binding on defendant Nos. 1 & 2. The said finding of
fact is erroneous in law for the reason that the trial court has conveniently
omitted to consider the admission made by the plaintiff, P.W. 1 in his cross
examination on 14.6.1995, which portion of admission extracted below that:

"...defendants 1 and 2 never entered into any agreement with me to sell the suit
property for Rs.6,65,000/-."

wherein the plaintiff has categorically admitted that the defendant Nos. 1 & 2
never entered into any Agreement of Sale with him in relation to the suit
schedule property for Rs.6,65,000/-. In view of the aforesaid categorical
admission of P.W.1, with regard to non execution of the agreement of sale by
the defendant Nos. 1 and 2, the trial court has committed grave error in
comparing the signatures of defendant Nos. 1 & 2 with reference to Exs. A36 to
A45, certified copies of the proceedings produced in other cases and also the
signatures found in the counter affidavit filed by them to the interlocutory
application for grant of ad- interim order of temporary injunction as well as the
signatures found in the written statement filed by them and recorded the
erroneous finding on the contentious issue No. 2 in favour of the plaintiff. There
was no need for the trial court to compare the signatures of defendant Nos. 1 &
2 found in certified copies Exs. A36 to A45 and also other admitted signatures

13  SpotLaw
in the pleadings referred to supra to record the findings on the documentary
evidence Exs.A2-A4 as correct. Further the observation made by the trial court
in its judgment while answering the contentious issue Nos. 2 & 3 by
appreciating the evidence of P.W.1 and P.W.2 to record the finding of fact that
Ex. A3 Agreement of Sale dated 8.9.1988 is true and valid and binding on
defendant Nos. 1 & 2 stating that defendants Nos. 1 & 2 have filed written
statement and they did not participate in the proceedings and they were not
examined in the case to prove the case pleaded by them. Further it is
erroneously stated that if they were examined in the case, the signatures found
in Exs. A2, A3 and A4 could have been confronted to them to prove execution
of the said documents in favour of the plaintiff.

22. The aforesaid findings and reasons recorded by the trial court are correctly
re-examined by the High Court on proper re-appreciation of pleadings and
evidence on record and the High Court correctly reversed the findings of the
trial court on the above contentious issues by recording valid and cogent
reasons. The appellate court has rightly held that perusal of the judgment of the
trial court shows that the trial court though it referred to the aforesaid evidence
did not consider the same in arriving at the right conclusion to hold that Ex. A3
Agreement is not true, valid and binding on defendant Nos. 1 & 2. The said
conclusion and the finding recorded in the impugned judgment by answering
the point formulated by the High Court can neither be termed as erroneous in
law nor in fact, particularly, in view of the admission made by P.W.1 with
regard to non execution of the Agreement of Sale in his favour by the defendant
Nos. 1 and 2. The other documents referred to supra upon which the plaintiff
has placed strong reliance, were examined by the High Court and it recorded its
finding at paragraphs 23, 24, 27 and 28 in the impugned judgment and rightly
held that the finding of fact recorded on the contentious issue Nos. 2 and 3 are
erroneous and set aside the same.

23. The appellate court at para 29 of the impugned judgment has examined the
validity of Ex. B4, Agreement of Sale dated 5.6.1988 executed by defendant
Nos. 1 and 2 in favour of defendant No. 6 with reference to the evidence
adduced by him and held that he is a bona fide purchaser under the above
agreement. The appellate court has held that the advance amount paid by the
defendant No.6 to the defendant Nos. 1 & 2 on 05.06.1988 under Ex. B1 receipt
and other payments made by him towards the sale consideration by way of
demand draft and cheque are correct and further observed that the same cannot

14  SpotLaw
be doubted for the reason that the Attester of Ex. B1 was examined as D.W. 2 in
the case, who is an independent witness to prove the contents of Ex. B1 (receipt
dated 5.6.1988). Further, the allegation of the plaintiff that the signatures of the
defendant Nos. 1 & 2 on Ex. B4, Agreement of Sale dated 05.06.1988 is ante-
dated is examined by the appellate court and it has held that except a suggestion
put to D.W. 1 in his cross-examination by the plaintiff's counsel that Ex. B4, the
Agreement of Sale is ante-dated, no evidence was adduced by the plaintiff to
prove the plea that Ex. B4 is created to defeat the rights of the plaintiff under
Ex.A3 the Agreement of Sale executed by defendant Nos. 1 & 2 in favour of the
plaintiff. The plaintiff had the knowledge of execution of Sale Deeds Exs. A32
to A35 in favour of the defendant No.6 in respect of the suit schedule property
but he had not originally impleaded him in the suit and only the defendant Nos.
1 to 5 were made parties to the original suit proceeding. The plaintiff filed an
interlocutory application in I.A. No. 689 of 1993, whereby the plaint was
amended by impleading defendant No. 6 with a direction to him to join
defendant Nos. 1 & 2 for execution of the Sale Deed in favour of the plaintiff in
respect of the suit schedule property and also prayed for delivery of vacant
possession of the same to him. The trial court has not framed the issue with
regard to the genuineness of the receipts Exs. B1, B2 and B3 and the Agreement
of Sale (Ex.B4) as pleaded by the plaintiff and without framing such an issue
and examining evidence in this regard it has recorded the finding of fact holding
that Ex. B2 (receipt dated 30.12.1988), Ex.B3 (receipt dated 10.01.1989) and
Ex.B4 (Agreement of Sale dated 5.6.1988) in favour of defendant No. 6 are held
to be ante-dated and fabricated documents without considering and appreciating
the oral evidence of D.W.1 and D.W. 2. It has also not recorded reasons for not
accepting their evidence with regard to the part payment of sale consideration
paid by the defendant No. 6 to defendant Nos. 1 and 2. The plaintiff had
asserted Ex. A3, the Agreement of Sale dated 8.9.1988 was executed in his
favour by defendant Nos. 1 & 2 in respect of the suit schedule property which
fact was required to be proved to substantiate his claim, as the burden of proof
of existence of that fact is on the plaintiff as per Section 101 of the Evidence
Act, 1872, which provision states that a person who asserts the fact must prove
that fact and therefore, he was required to prove that the documents Exs.B1, B2,
B3 and B4 are ante-dated and fabricated by them to defeat the right of the
plaintiff as alleged by him and the plaintiff was required to prove the above fact
existed on the date of assertion made by him. Section 103 of the Evidence Act
states that the burden of proof as to any particular fact lies with a person who
wishes the court to believe in its existence, unless it is provided by any law that
the proof of that fact shall lie on any particular person. Further, Section 104 of
the Evidence Act states the burden of proving a fact to make evidence

15  SpotLaw
admissible lies on the plaintiff and that burden has not been initially discharged
by the plaintiff in this case by producing evidence on record. The trial court
simply accepted the oral evidence of P.W. 1 and P.W. 2 and compared the
admitted signatures of defendant Nos. 1 & 2 found in the certified copies of the
documents in relation to other cases between defendant Nos. 1 & 2 and others
and their signatures found in the pleadings filed in the original suit namely the
written statement and statement of objections to the interlocutory application for
grant of temporary injunction. It has been erroneously held by the trial court that
the document receipt dated 14.8.1988 (Ex. A2) the Agreement of Sale dated
8.9.1988 (Ex.A3) and receipt dated 8.9.1988 (Ex.A4) are proved by the
plaintiff. The said finding and reasons are held to be erroneous is the conclusion
arrived at by the appellate court by recording its reason at para 23 of the
impugned judgment, wherein it has held that the trial court has arrived at the
finding that the Agreement of Sale (Ex. A3) is a true document by comparing
the signatures of defendant Nos. 1 & 2 found in the certified copies in other
cases. The High Court has examined the correctness of that finding with
reference to the evidence on record and has come to the right conclusion and
held that the trial court did not consider the same properly in arriving at such
finding. Further the High Court has rightly held that the finding of the trial court
that Exs. B2, B3 and B4 executed in favour of defendant No. 6 by defendant
Nos. 1 & 2 are ante-dated and fabricated with a view to deprive the right of the
plaintiff acquired on the basis of Ex.A3, is erroneous. The finding of fact
recorded by the trial court on the issue No. 2 is rightly set aside by the High
Court by recording its reasons in the impugned judgment. Further it has held
that the conclusion and the finding recorded by the trial court in this regard is
not based on legal evidence on record and therefore the appellate court has held
that they are not only erroneous on fact but also suffers from error in law. The
appellate court in exercise of its appellate jurisdiction has re-appreciated the
pleadings and evidence on record on this important aspect of the matter and
held that the findings of the trial court on the contentious issue Nos. 2 and 3 are
vitiated in law.

24. For the foregoing reasons, we have to answer the point Nos. 1 & 2 in favour
of defendant No. 6 as he has proved the execution of the Agreement of Sale
dated 5.6.1988 (Ex.B4) and the receipts dated 5.6.1988,30.12.1988 and
10.1.1989 (Exs. B1 to B3) for having paid part consideration to the defendant
Nos. 1 & 2. The plaintiff should have taken necessary steps before the trial court
to call them in the proceedings to cross examine them for the limited purpose of
confronting their signatures found in Exs. A2, A3 and A4 as they have denied

16  SpotLaw
the execution of the same in their written statement. The plaintiff did not take
steps in this regard therefore the appellate court is right in coming to the
conclusion that the above documents upon which reliance was placed in support
of his claim are not proved. Therefore, the appellate court has considered the
relevant facts and documentary evidence on record and come to the correct
conclusion and held that the admission of P.W. 1 in his cross examination on
14.6.1995, wherein he has categorically stated that defendant Nos. 1 & 2 have
not executed Agreement of Sale of suit schedule property, forms part of the
record. In this regard, the appellate court has re-appreciated the entire evidence
on record and rightly set aside the finding of fact recorded by the trial court on
the contentious issue No. 2 in holding that Ex.A3 the Agreement of Sale was
executed by defendant Nos. 1 & 2 in favour of the plaintiff in respect of suit
schedule property, is the erroneous finding. Therefore, the finding and reason
recorded by the High Court cannot be termed as erroneous in law.

25. Further, the appellate court is justified in setting aside the findings of fact
recorded on contentious issue Nos. 2 & 3 by the trial court and rightly held that
defendant No. 6 proved the execution of the Agreement of Sale dated 5.6.1988
(Ex. B4) and also proved Exs. B1, B2 and B3 regarding the payment of part
consideration to defendant Nos. 1 and 2. Therefore, it has held that sale of the
suit schedule property in his favour is legal and valid. The High Court has
rightly set aside the judgment and decree of the trial court by recording its
reasons and the same are in our view are correct. The High Court is justified in
reversing the findings recorded on the contentious issues and dismissing the
original suit of the plaintiff.

26. Further, the dismissal of the original suit of the plaintiff is justified for one
more reason, namely, that it was held that the defendant No. 6 is a bona fide
purchaser after verifying the title of the defendant Nos. 1 & 2 in relation to the
suit schedule property and he paid consideration and has got the sale deeds
executed in his favour from them as per Exs. A32 to A35. The plaintiff, in the
original suit has not prayed for the declaratory relief to declare the Sale Deeds
referred to above as null and void when the defendant No. 6 was impleaded to
the original suit proceedings, as the High Court has rightly held that Ex. B4, the
Agreement of Sale dated 5.6.1988 is genuine and on that basis the sale deeds
were executed in his favour by defendant nos.1 & 2.

17  SpotLaw
27. Accordingly, we dismiss the appeal, upholding the judgment and decree of
the appellate court, however, there shall not be an order for awarding the costs
of the proceedings.

18  SpotLaw