which is available to present defendants need to be discussed in
brief. It is because the Trial Court had held that the aforesaid
defence taken in the written statement is not available to the
defendants in view of the provision of section 92 of the Evidence
Act. The relevant portion, proviso (2) of section 92 is as under :-
"92. Exclusion of evidence of oral
agreement.- When the terms of any such
contract, grant or other disposition of property, or
any matter required by law to be reduced to the
form of a document, have been proved according
to the last section, no evidence of any oral
agreement or statement shall be admitted, as
between the parties to any such instrument or
their representatives in interest, for the purpose of
contradicting, varying, adding to, or subtracting
from, its terms:
Proviso (1).-----------
Proviso (2).- The existence of any separate
oral agreement as to any matter on which a
document is silent, and which is not inconsistent
with its terms, may be proved. In considering
whether or not this proviso applies, the Court shall
have regard to the degree of formality of the
document.
Proviso (3).- ............"
20) On the aforesaid point, the learned counsel for
respnodents/defendants placed reliance on the case reported as
AIR 1982 SUPREME COURT 20 [Smt. Gangabai Vs. Smt.
Chhabubai]. The relevant observations are as under :-
"(B) Evidence Act (1 of 1872),S.92(1)-Bar of,
as to adducing of oral evidence –
Applicability.
The bar imposed by sub-sec.(1) of Section 92
applies only when a party seeks to rely upon the
document embodying the terms of the transaction.
In that event, the law declares that the nature and
intent of the transaction must be gathered from
the terms of the document itself and no evidence
of any oral agreement or statement can be
admitted as between the parties to such document
for the purpose of contradicting or modifying its
terms. The sub-section is not attracted when the
case of a party is that the transaction recorded in
the document was never intended to be acted
upon at all between the parties and that the
document is a sham. Such a question arises when
the party asserts that there was a different
transaction altogether and what is recorded in the
document was intended to be of no consequence
whatever. For the purpose, oral evidence is
admissible to show that the document executed
was never intended to operate as an agreement
but that some other agreement altogether, not
recorded in the document, was entered into
between the parties. AIR 1936 PC 70, Foll."
21) In view of nature of defence taken by the defendants
which is already quoted and the aforesaid position of law, this
Court has no hesitation to hold that the defendants cannot be
prevented from taking such defence. On this point, the learned
counsel for appellant placed reliance on the case reported as
2010 (6) Mh.L.J. 653 BOMBAY HIGH COURT [Shriram s/o.
Tukaram Avatade Vs. Ramrao Udaji Khadase]. In this
reported case, this Court held in view of the facts of that case
that there was no evidence to override the legal effect of the suit
agreement. This proposition is not disputed and on facts it was
held that the defence taken was not proved.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 188 OF 2010
Kashinath S/o Yadeo Hiwarde,
Versus
Osman Baig Sandu Baig @ Amir Baig,
CORAM : T.V. NALAWADE, J.
DATED : 10th December, 2015.
Citation; AIR2016(NOC)266 Bom
1) The appeal is filed against judgment and decree of
Regular Civil Appeal No. 116/1984 which was pending in District
Court, Aurangabad. The appeal of present respondents, original
defendants filed against judgment and decree of Special Civil
Suit No. 51/1980 is allowed by the District Court and the decree
given by the Trial Court of specific performance of contract is set
aside. The original plaintiff has filed the present appeal. Both the
sides are heard.
2) Two agricultural lands like land bearing Survey No.
18, admeasuring 12 Acre 1 Gunta and Survey No. 14,
admeasuring 19 Acres 8 Gunta situated at village Maosala, Tahsil
Khultabad, District Aurangabad were owned by Sandu Baig. Land
Survey No. 14 is also known as Godhya Ambacha Inam. Sandu is
dead and defendants are the successors of Sandu.
3) It is the case of plaintiff appellant - Kashinath that
Sandu was in need of money and so, he expressed to plaintiff
that he wanted to sell aforesaid two lands. It is the case of
plaintiff that Sandu then agreed on 27.4.1977 to sell the
aforesaid two lands for total consideration of RS. 42,000/-. It is
the case of plaintiff that on the same date, the agreement was
written and it was registered. It is contended that on 27th April,
amount of Rs. 35,000/- was paid to Sandu as earnest money and
the remaining amount of Rs. 7,000/- was to be paid at the time
of execution and registration of the sale deed. The sale deed was
to be executed after obtaining necessary permission from
authority. The charges of the registration and obtaining
permission were to be paid by the plaintiff, purchaser.
4) It is the case of plaintiff that brother of plaintiff
namely Mahadu was in possession of both the lands since the
years 1974-75, but Sandu was not ready to mention in the
agreement that the possession was handed over to plaintiff
unless the entire consideration was paid to him. It is contended
that plaintiff was interested in having such recital in document
and so, he paid the remaining amount of consideration of Rs.
7,000/- to Sandu on 28.4.1977 and on that date, Sandu executed
Bharna Pavti in favour of plaintiff. It is contended by the plaintiff
that in Bharna Pavti, there was mention of receipt of money and
there was mention of handing over of possession of two lands to
the plaintiff. It is the case of plaintiff that said Bharna Pavti was
produced by him in Regular Civil Suit No. 532/1979 which was
filed by the present respondents, successors of Sandu.
5) It is the case of plaintiff that during the lifetime of
Sandu, Sandu avoided to execute the sale deed under one or
other pretext. It is contended by the plaintiff that after
28.4.1977, many times he had requested Sandu to execute the
sale deed and he had informed that there was no necessity of
any permission for execution of sale deed. It is the case of
plaintiff that after the death of Sandu, he approached the
successors of Sandu, defendants and he requested them to
execute the sale deed, but they also avoided to execute the sale
deed. It is the case of plaintiff that he was always ready and
willing to perform his part of contract, but the defendants have
avoided to execute the sale deed.
6) It is the case of plaintiff that Bharna Pavti dated
28.4.1977 produced in Regular Civil Suit No. 532/1979 is missing
and so, he is entitled to lead secondary evidence in respect of
Bharna Pavti. It is the case of plaintiff that due to action of
defendants like filing of suit bearing No. 532/1979, there is
threat to his possession and so, he has filed the suit. The suit
came to be filed on 25.4.1980. During implementation of
consolidation scheme, these two survey numbers were merged
to create Gat No. 30.
7) The defendants filed joint written statement. They
denied that prior to 27.4.1977 brother of plaintiff was in
possession of these lands. They denied that on 27.4.1977 Sandu
agreed to sell the two lands for consideration of Rs. 42,000/- to
the plaintiff. They denied that on 28.4.1977 Sandu had executed
Bharna Pavti and he had received amount of Rs. 7,000/- more
from plaintiff and he had also given possession to plaintiff. It is
the case of defendants that Sandu was in possession of both the
lands till his death. It is contended that defendant No. 1, son of
Sandu, was in need of money as he wanted to purchase a truck
for transport business and so, he requested plaintiff to give loan
of Rs. 30,000/-. It is contended that as the plaintiff wanted some
security in respect of this amount, one agreement was executed
in favour of plaintiff on 27.4.1977. It is contended that some
interest was given to plaintiff and so, the amount of Rs. 28,000/-
was actually paid to defendants, but in the document, it was
shown that the amount of Rs. 35,000/- was paid by plaintiff to
defendants. It is contention of defendants that possession was
not given on 27.4.1977 or subsequent to that, at any time.
8) It is the case of defendants that Sandu had obtained
occupancy right in respect of Survey No. 14 which was Inam land
and the land was also known as Godhya Ambacha Inam. It is
contended that in view of this circumstance, it was not possible
to sell this land as there is prohibition under Inam Abolition Act
to sell such land. It is contended that by joining hands with the
revenue authority, plaintiff somehow got entered his name in
revenue record in ownership column and also in possession
column. It is contended that he used the circumstance that
consolidation of lands was going on. It is contended that as there
was no agreement of sale, there is no question of giving reliefs
claimed. They contended that they are ready to return the
amount taken as loan.
9) Issues were framed on the basis of aforesaid
pleadings. Both the sides gave evidence. The Trial Court had
held that there was agreement of sale and even Bharna Pavti
was executed on 28.4.1977 in favour of plaintiff. Thus, the Trial
Court had held that entire amount of consideration was paid by
plaintiff to Sandu and his family members and the reliefs claimed
were given. The First Appellate Court has set aside the decision
of the Trial Court and it is held that it was a loan transaction.
Equitable relief is given by the First Appellate Court to plaintiff
and a direction is given to defendant to pay the amount of Rs.
42,000/-.
10) This Court (other Hon'ble Judge) admitted the appeal
on 9.8.2011 on following substantial questions of law :-
"(1) Whether the findings of the first appeal Court on
the questions; (i) the purport of the agreement, (ii)
proof of bharna-pawati, and (iii) delivery of possession,
are perverse ?
(2) Assuming the appellants succeed in proving the
agreement, whether they make out a case for
discretion for grant of specific performance ?"
11) The case of the plaintiff is based entirely on
secondary evidence as he did not produce the original
agreement dated 27.4.1977 and he was not having even a copy
of so called Bharna Pavti dated 28.4.1977. Certified copy of
registered agreement of sale is, however, produced on the
record. Plaintiff examined himself and some witnesses to give
evidence on these two documents and some circumstantial
evidence is also given. It appears that permission was given in
trial Court to the plaintiff to lead secondary evidence in respect
of both the documents. This Court, at this stage, is not expected
to go into the propriety or legality of granting such permission.
However, it needs to be kept in mind that the requirements
which are there in the Evidence Act for proof of execution and
also for proof of contents of documents and the transaction need
to be fulfilled. The other requirement regarding validity of the
document also need to be kept in mind. It is the case of plaintiff
that in Bharna Pavti not only the receipt of amount was
acknowledged, but the possession was also given.
12) The Trial Court had started with the presumption that
in view of the existence of registered agreement of sale, it was
not possible for it to consider the oral evidence of defendants
and circumstances on the basis of which the defendants wanted
to prove that it was a loan transaction. This point is addressed
by the First Appellate Court by discussing the provision of
section 92 of the Evidence Act and the necessary discussion in
that regard is made by this Court at proper place.
13) It is already observed that plaintiff is relying on the
secondary evidence and for that also, he was expected to prove
the things like execution of document and contents of the
document. Relevant provisions in that regard are quoted
hereinafter.
14) The provision of section 59 of the Evidence Act reads
as under :-
"59. Proof of fact by oral evidence.-- All facts,
except the contents of documents or electronic
records, may be proved by oral evidence."
Thus, the ordinary rule is that for proving contents of document,
the document itself is the best evidence. Section 61 of the
Evidence Act relaxes this rule. Section 61 and other provisions
show that when there are circumstances due to which it is not
possible to produce the document and the grounds mentioned in
the provision of Chapter V of the Evidence Act are available, the
contents of the document can be proved by secondary evidence
also. The provision of section 61 makes it clear that the contents
of the document can be proved by primary or secondary
evidence. In section 62 of Evidence Act, the meaning of 'primary
evidence' and 'secondary evidence' is given and it is mentioned
that the original document itself means primary evidence. In
section 63 of the Evidence Act, the meaning of 'secondary
evidence' is given. Section 63 (5) of the Evidence Act shows that
oral account of contents of document can be accepted as
secondary evidence. In section 64 of the Evidence Act, it is again
mentioned that the document must be proved by the primary
evidence expect in cases mentioned in section 65 of the
Evidence Act. In the present matter, original documents are lost
and so, as provided in section 65 (c), secondary evidence is
permissible. The aforesaid provision show that the secondary
evidence can be used for proof of existence, condition or
contents of the document.
15) In section 63 of the Evidence Act, the meaning of
'secondary evidence' is given but section 63 (5) provides that
oral accounts of contents of document can be given by a person
who has himself 'seen' it. 'Seen' means 'read the contents'. In
view of the provision of section 67 of the Evidence Act, it can be
said that witness on execution of document is not a witness, who
can say that he had 'seen' the document. So, when the original
document is not available, the scribe, the person, who can say
that he had written the document or he knew the contents of the
document, the transaction, can give such evidence. Such need
arises more when the contents of the document are disputed. In
the present matter, some contents of agreement dated
27.4.1977 are disputed and so, this position of law needs to be
kept in mind. In respect of Bharna Pavati, defence of forgery only
needs to be considered.
16) Section 67 of the Evidence Act says that unless the
execution of document is proved, the document cannot be
admitted in evidence. There are many modes to prove the
execution of document and one of them is to examine attesting
witness. When the document is lost and even it's copy is not
available, in that case also, the evidence on execution of the
document needs to be given in view of provision of section 67 of
the Evidence Act. When there is a defence that the original
document itself was forged, it becomes necessary for the party
relying on the document to prove the execution and only after
that the burden shifts on the party making allegation of forgery.
Only after proof of execution the party making allegation of
forgery needs to prove forgery.
17) Provisions of sections 101 and 102 of the Evidence
Act show that when execution of document is proved, the burden
shifts on the person, who is alleging that it was a forged
document. These provisions show that such defendant has
statutory right to send disputed handwriting or signature to
expert to prove the defence of forgery. However, the Court can
consider the circumstance like relevancy of document and
necessity of consideration of the document for just decision of
the case. This right of defendant is also a part of basic principles
of justice and fairness. {Reliance placed on the case reported as
AIR 1973 BOMBAY 40 (V 60 C 10) [M/s. Sanjay Cotton Co.,
Partnership Firm Akola Vs. M/s. Omprakash Shioprakash
and Anr.]}. So, when there is no document available for
sending it to the expert to get opinion for defence of forgery, the
Court is expected to proceed with presumption that prejudice is
certainly caused to the party, who has made allegation of
forgery. In the result, when the original document is lost and it's
genuineness itself is in question, the oral evidence given as
secondary evidence on the proof of execution of that document
and also the contents of the document becomes weak piece of
evidence. However, it also needs to be kept in mind that when
under the aforesaid provisions the proof of both the execution
and contents of lost document can be given by secondary
evidence, in a fit case, when there is convincing evidence, the
Court can infer that the person must have signed the lost
document.
18) In the cases like present one, one more probability
also needs to be kept in mind that the document lost was itself
inadmissible in evidence. If the document was inadmissible in
evidence, the Court is not expected to allow the party, who
wants to place reliance on such document to lead secondary
evidence. As already observed, in the present matter, the
permission is already given and considering the scope of
interference in the permission, this Court is not discussing that
point more.
19) Before starting appreciation of evidence, the defence
which is available to present defendants need to be discussed in
brief. It is because the Trial Court had held that the aforesaid
defence taken in the written statement is not available to the
defendants in view of the provision of section 92 of the Evidence
Act. The relevant portion, proviso (2) of section 92 is as under :-
"92. Exclusion of evidence of oral
agreement.- When the terms of any such
contract, grant or other disposition of property, or
any matter required by law to be reduced to the
form of a document, have been proved according
to the last section, no evidence of any oral
agreement or statement shall be admitted, as
between the parties to any such instrument or
their representatives in interest, for the purpose of
contradicting, varying, adding to, or subtracting
from, its terms:
Proviso (1).-----------
Proviso (2).- The existence of any separate
oral agreement as to any matter on which a
document is silent, and which is not inconsistent
with its terms, may be proved. In considering
whether or not this proviso applies, the Court shall
have regard to the degree of formality of the
document.
Proviso (3).- ............"
20) On the aforesaid point, the learned counsel for
respnodents/defendants placed reliance on the case reported as
AIR 1982 SUPREME COURT 20 [Smt. Gangabai Vs. Smt.
Chhabubai]. The relevant observations are as under :-
"(B) Evidence Act (1 of 1872),S.92(1)-Bar of,
as to adducing of oral evidence –
Applicability.
The bar imposed by sub-sec.(1) of Section 92
applies only when a party seeks to rely upon the
document embodying the terms of the transaction.
In that event, the law declares that the nature and
intent of the transaction must be gathered from
the terms of the document itself and no evidence
of any oral agreement or statement can be
admitted as between the parties to such document
for the purpose of contradicting or modifying its
terms. The sub-section is not attracted when the
case of a party is that the transaction recorded in
the document was never intended to be acted
upon at all between the parties and that the
document is a sham. Such a question arises when
the party asserts that there was a different
transaction altogether and what is recorded in the
document was intended to be of no consequence
whatever. For the purpose, oral evidence is
admissible to show that the document executed
was never intended to operate as an agreement
but that some other agreement altogether, not
recorded in the document, was entered into
between the parties. AIR 1936 PC 70, Foll."
21) In view of nature of defence taken by the defendants
which is already quoted and the aforesaid position of law, this
Court has no hesitation to hold that the defendants cannot be
prevented from taking such defence. On this point, the learned
counsel for appellant placed reliance on the case reported as
2010 (6) Mh.L.J. 653 BOMBAY HIGH COURT [Shriram s/o.
Tukaram Avatade Vs. Ramrao Udaji Khadase]. In this
reported case, this Court held in view of the facts of that case
that there was no evidence to override the legal effect of the suit
agreement. This proposition is not disputed and on facts it was
held that the defence taken was not proved.
22) For giving the decision on second substantial
question of law, the provision of section 20 of the Specific Relief
Act need to be kept in mind. However, the question about using
discretion under this section arises only if the Court comes to the
conclusion that there was agreement of sale. The provision of
section 20 of the Specific Relief At runs as under :-
"20. Discretion as to decreeing specific
performance.- (1) The jurisdiction to decree
specific performance is discretionary, and the
Court is not bound to grant such relief merely
because it is lawful to do so; but the discretion of
the Court is not arbitrary but sound and
reasonable, guided by judicial principles and
capable of correction by a Court of appeal.
(2) The following are cases in which the
Court may properly exercise discretion not to
decree specific performance-
(a) Where the terms of the contract or the
conduct of the parties at the time of entering into
the contract or the other circumstances under
which the contract was entered into are such that
the contract, though not voidable, gives the
plaintiff an unfair advantage over the defendant;
or
(b) Where the performance of the contract
would involve some hardship on the defendant
which he did not foresee, whereas its nonperformance
would involve no such hardship on
the plaintiff;
(c) Where the defendant entered into the
contract under circumstances which though not
rendering the contract voidable, makes it
inequitable to enforce specific performance.
Explanation 1.- Mere inadequacy of consideration,
or the mere fact that the contract is onerous to the
defendant or improvident in its nature, shall not be
deemed to constitute an unfair advantage within
the meaning of clause (a) or hardship within the
meaning of clause (b).
Explanation 2.- The question whether the
performance of a contract would involve hardship
on the defendant within the meaning of clause (b)
shall except in cases where the hardship has
resulted from any act of the plaintiff subsequent to
the contract, be determined with reference to the
circumstances existing at the time of the contract.
(3) The Court may properly exercise
discretion to decree specific performance in any
case where the plaintiff has done substantial acts
or suffered losses in consequence of a contract
capable of specific performance.
(4) The Court shall not refuse to any party
specific performance of a contract merely on the
ground that the contract is not enforceable at the
instance of the other party."
23) Let us see the material available for proving the rival
cases. The defendants have admitted that Sandu and they had
signed on agreement of sale. Sandu had executed the document
and defendants had signed the agreement dated 27.4.1977 as
witnesses. The document produced on the record is certified
copy of registered agreement of sale but it is not photostat copy.
Witness Bhagwan Patil, who had signed on the original document
is examined by the plaintiff to prove the execution. His name
appears on the certified copy of agreement as witness to
execution.
24) Exh. 60 the agreement contains following important
points :-
(i) That, before Sub-Registrar the cheque of Rs.
28,000/- bearing No. 648155 was given to Sandu by
Kashinath.
(ii) That, for repayment of loan of Sandu of Credit
Cooperative Society of Khirdi, the cheque of Rs. 3,675/-
dated 27.4.1977 and bearing No. 648156 was already
given.
(iii) That, the cash amount of Rs. 3,325/- was already
given to Sandu.
(iv) That, the two lands shown in the agreement were
to be sold for total consideration of Rs. 42,000/- and
out of that amount, the amount of Rs. 35,000/- was
paid as earnest money.
(v) That, in the lands to be sold viz. Survey Nos. 14
and 18, there were two wells, there was construction of
cattleshed, there were many mango trees, there were
two tamarind trees and there was one coconut tree.
(vi) That, the remaining consideration of Rs. 7,000/-
was to be paid after getting of the permission of
authority to sell the land and it was to be paid at the
time of registration of sale deed.
(vii) That, the purchaser was to bear the expenses for
obtaining aforesaid permission.
(viii) That, the possession of the lands was to be given
after getting permission of the authority for selling the
lands and the agreement of sale was made without
handing over the possession of the lands.
(ix) That, Sandu had decided to sell the lands as he
was in need of money for family expenses ad for
repayment of loan. Out of the earnest amount, the
amount of Rs. 3,675/- was given by cheque for
repayment of loan taken from Society.
(x) The document bears signatures of three sons of
Sandu and thumb impressions of three daughters of
Sandu as witnesses.
25) The evidence given by Kashinath on the agreement
of sale is as per the aforesaid contents of the agreement.
Evidence is given by his witness on execution. The witness has
tried to say that on the same day i.e. on 27th April, the cheque
of the Society was handed over to employee of the Society in
the office of Sub-Registrar. The witness has further stated that
the cash amount of Rs. 3,325/- mentioned as a part of
consideration was given to Sandu in the office of Sub-Registrar
on 27th. This evidence is not consistent with the evidence of
plaintiff, the contents of Exh. 60 and his other witness, employee
of the District Central Bank.
26) The circumstance that sons of Sandu had signed on
the document can be used in both ways. Due to this
circumstance, it can be said that the sons of Sandu knew about
the real transaction and the intention behind the creation of
document. So, the necessary weight needs to be given to the
evidence of son of Sandu in that regard. Defendant No. 1 has
given evidence that the document was executed only as a
security in respect of loan of Rs. 28,000/- given to Sandu by the
plaintiff. Defendant No. 1 has deposed that other amount like
cash amount of Rs. 3,325/- and the amount of Rs. 3,675/- by
cheque was not given to Sandu and this part of the
consideration was not paid. He has given evidence that the
amount of Rs. 35,000/- was to be returned and it was the
amount with interest on the amount of Rs. 28,000/-. He has
given evidence that possession was not to be given and so, it
was specifically mentioned that under that document possession
was not given.
27) Witness Sabne examined by the plaintiff was not
employee of credit cooperative Society of the village of
defendants, but he was employee of District Central Bank. His
evidence shows that his bank had not authorised him to recover
the amount of loan of the Society. This witness was acquainted
with plaintiff. This circumstances need to be kept in mind while
appreciating the evidence of Sabne. Sabne has deposed that
plaintiff Kashinath had given cheque of Rs. 3675/- to him and he
credited that amount in the loan account of Sandu as the loan
was taken by Sandu through Khirdi Society. He produced the
record like copy of cheque No. 648156 dated 27.4.1974. This
cheque was given to Khirdi Vikast Society. The slip of deposit of
the cheque is also produced and the title appearing on the slip is
"interest" (O;kt). The record shows that this amount was credited
in the account of Khirdi Vikas Society on 28.4.1977. Though on
the backside of the slip with which the cheque was produced in
the bank, there is mention that the cheque was for Sandu, there
is no record to show that this amount was really credited in the
account of Sandu. Copy of account statement at Exh. 70 in
respect of loan of Sandu is produced and it shows that from
Khirdi Vikas Society, the loan of Rs. 250/- was taken and due to
various renewals the total amount which was due from Sandu
was Rs. 1815/-. This amount was due for the period from
1.7.1975 to 30.6.1976. The evidence of witness Sabne shows
that he had brought the register and extract at Exh. 70 was
prepared on 5.4.1984 and was produced in the Court. Thus,
there was no entry in the loan account of Sandu in respect of
aforesaid cheque of Rs. 3675/-. These circumstances show that
there was something fishy. There are many other circumstances
in the present matter creating probability that there was some
mischievousness and there was manipulation and there was high
handedness on the part of plaintiff.
28) Due to aforesaid inconsistencies in the record and
inconsistencies in the evidence of three witnesses, it is not
possible to believe that the two amounts like Rs. 3675/- by
cheque and Rs. 3325/- by cash were given to Sandu on
27.4.1977. If the cheque of amount of Rs. 28,000/- was given in
presence of Sub-Registrar, it was possible to give the remaining
amount also in presence of Sub-Registrar. That was not done and
there are aforesaid circumstances. The scribe of the agreement
of sale is not examined by plaintiff. As it was necessary to prove
the contents, the transaction mentioned in the agreement dated
27.4.1977, the aforesaid circumstances cannot be ignored. Here
only it needs to be mentioned that the First Appellate Court has
come to the conclusion that the amount of Rs. 28,000/- was only
paid. The First Appellate Court has given equitable relief of
returning of amount of Rs. 42,000/- by holding that the
defendants have admitted their liability in respect of the amount
of Rs. 35,000/-.
29) The aforesaid circumstances are considered by the
First Appellate Court, but they were not considered by the Trial
Court and the reasons for the same are already mentioned.
Burden was on the plaintiff to prove that the consideration as
contended by him was really paid to the defendants. He could
not establish the circumstances on the basis of which inference
could have been drawn that the remaining amount as mentioned
in the document at Exh. 60 was also paid.
30) So far as the case of plaintiff Kashinath that on 28th
April, the next day of the agreement, remaining amount of Rs.
7,000/- was paid by him is concerned, for proving such case,
there is neither the original document nor even a copy of
document available. Only the oral evidence is available as
secondary evidence on this document. At the time of considering
this oral evidence, it needs to be kept in mind throughout that
the defendants have denied that amount of Rs. 7,000/- was paid
to the defendants or Sandu on 28th April and such Bharna Pavti
was executed by Sandu or defendants. The plaintiff wanted to
prove that the so called Bharna Pavti was signed by Sandu and
his three sons and three daughters had put thumb impressions
on this document. All these sons of Sandu are available and one
son has given evidence on oath that no such document was
executed and no amount was given on 28th by plaintiff. In the
previous suit filed by defendants for relief of injunction, the
defendant No. 1 had filed affidavit to the effect that the
document of Bharna Pavti produced in that case by Kashinath
was forged document. In the present matter, the said affidavit
was confronted to defendant No. 1 when he gave evidence in the
Court.
31) Kashinath has given evidence that on 28.4.1977
Bharna Pavti was executed as he gave amount of Rs. 7,000/- to
Sandu. There is no specific case of Sandu whether such
document was written on stamp paper or it was written on a
stamp or ordinary paper and revenue ticket was affixed on the
document. In the plaint, there is no pleading that this document
was attested by witnesses. The submissions made show that in
previous suit, no affidavits of witnesses including the witness
examined in the present matter were filed by plaintiff. In that
case also as the relief of temporary injunction was claimed, for
making out prima facie case, both the sides were expected to
file affidavits.
32) The evidence given by Bhagwan, the witness
examined on execution of both the documents shows that he
has tried to say that on 28.4.1977 he signed on Bharna Pavti as
attesting witness. He has deposed that in his presence, the
amount was paid to Sandu and signatures were made by Sandu
and his issues on that document. He has deposed that there was
mention of possession also in Bharna Pavti and since that date
the possession of two lands is with plaintiff.
33) Bhagwan, the witness examined on both the
documents is Police Patil of village and is also a relative of
Kashinath. The evidence on the record and particularly
admissions given by Kashinath show that he used his two
relatives as witnesses and he used one of his colleague, a
teacher, as a witness. It is peculiar that no witness even from a
community of defendants was used on any document as per the
case of plaintiff.
34) The evidence of Bagwan in cross examination shows
that Bharna Pavti was probably written on a stamp paper. He
does not know as to from where the stamp paper was
purchased. Kashinath has deposed in cross examination that the
amount of Rs. 7,000/- shown to be paid on 28th was given to
him by his brother Mahadu. He does not know as to from where
Mahadu had collected this money. It was necessary to give such
explanation as the plaintiff has tried to say that he was not
having such amount on 27th April. Mahadu is not examined in
the present matter and so, there is no circumstantial check at all
to the case of plaintiff and the aforesaid oral evidence on
execution of Bharna Pavti on 28th April and on payment of Rs.
7,000/- and also on handing over of possession on 28th April.
35) When Kashinath wanted to give secondary evidence
on Bharna Pavti, which was of the nature of oral evidence only, it
was necessary for him not only to prove the execution of Bharna
Pavti, but also the transaction of the said document. Both the
witnesses have tried to say that one Bhagwan Kulkarni had
allegedly scribed the two documents. Evidence of scribe is not
given on both the documents.
36) To prove that there was the agreement of sale and
plaintiff had paid entire amount of consideration, it was
necessary for plaintiff to prove his case that the remaining
consideration was paid on 28th April and the possession was
given to plaintiff by Sandu on 28th April. Such proof was
necessary not only to prove that it was agreement of sale, but to
prove that the plaintiff was ready and willing to perform his part
of the contract.
37) In the agreement of sale, there is specific mention
that the permission of authority was necessary and only after
that there was possibility of execution and registration of the
sale deed. There is specific mention in the document at Exh. 60
that the remaining consideration of Rs. 7,000/- was to be paid at
the time of execution and registration of the sale deed. There is
documentary evidence which is specifically mentioned
hereinafter to show that Survey No. 14 was initially Inam land
and the occupancy rights were given to Sandu under Inam
Abolition Act. Thus, the permission was necessary for
registration of sale deed atleast in respect of Survey No. 14. On
the other hand, there was no hurdle in execution and registration
of sale deed of other land. In view of these circumstances and
specific contents of Exh. 60, it was necessary to prove that the
remaining consideration was paid by Kashinath and the
possession was given by Sandu to Kashinath. There is no record
and there is no circumstance creating a probability that
execution and registration of sale deed was possible in near
future. In the cross examination, it is specifically brought on the
record that application or affidavits required to be prepared for
getting such permission were not prepared on 27th or 28th.
Thus, the plaintiff failed to prove on pre-ponderance of
probability that on 28.4.1977 he paid Rs. 7,000/- to Sandu and
then Sandu executed Bharna Pavati and he handed over
possession to plaintiff.
38) Consideration for sale was mentioned as Rs. 42,000/-
in Exh. 60. If this document is considered as it is, it can be said
that most of the amount, the amount of Rs. 35,000/- was given
by plaintiff. In spite of such circumstance, the possession of the
lands was not given. This circumstance is against the case of
plaintiff that it was agreement of sale. Thus, the burden was
heavy on the part of plaintiff to prove that there was agreement
of sale and he had paid the amount under the agreement of
sale. If the plaintiff had proved that he had paid the
consideration of Rs. 7,000/- on 28th, if he had proved that
Bharna Pavati was executed on 28th and possession was given
to plaintiff under Bharna Pavati, these circumstances would have
certainly helped the plaintiff to prove that there was agreement
of sale in his favour.
39) In 7/12 extract there is entry for year 1976-77 that of
name of Mahadu, brother of plaintiff in possession column of
both the lands. It is already observed that Mahadu is not
examined by the plaintiff as his witness. No explanation is given
by plaintiff when question was asked to him as to how Mahadu
had come in possession. Defendant No. 1 has denied on oath
that Mahadu was in possession. The revenue record shows that
when the dispute started, steps were taken by the defendants
and the name of Sandu was again entered in the revenue record.
Surprisingly, the name of Mahadu was entered in crop cultivation
column for the year 1974-75 as owner.
40) There is the record and it is not disputed by plaintiff
that during implementation of consolidation scheme which was
started in the year 1977-78 the name of plaintiff was entered as
owner in the revenue record and land Gat No. 30 was shown to
be owned by plaintiff. There was only agreement of sale, but
plaintiff managed to see that his name was entered in the
revenue record as owner and the aforesaid Gat number was
allotted to him. No right or interest had passed under agreement
of sale and that can be seen from the provision of Section 54 of
the Transfer of Property Act, 1882. These circumstances show
that plaintiff was in a position to influence authorities. These
acts of plaintiff were illegal and they show that he was ready to
go to any extent.
41) The defendants filed suit for injunction first. In that
suit also, the defendants had denied that they had agreed to sell
the suit property and they had given the possession to plaintiff.
They could not get temporary injunction. Then the present suit
came to be filed. It appears that the suit filed for injunction was
not prosecuted by the present defendants and it came to be
dismissed for default. The circumstances of the present matter
show that the suit for specific performance was not filed even
when plaintiff knew that Sandu and his issues were not ready to
execute the sale deed and they had denied that there was the
agreement of sale by filing a suit. After the period of more than 2
years nine months from the date of the agreement, plaintiff filed
suit for specific performance of contract. The record and
submissions show that no notice was given by plaintiff either to
Sandu or to his sons and daughters for calling them to execute
the sale deed. All these circumstances are against the case of
plaintiff that there was agreement of sale and he was ready and
willing to perform his part of contract.
42) The learned counsel for appellant submitted in the
present proceeding that defendants failed to prove that they
were in need of money for purchasing a truck. It was submitted
that no such specific mention was made in agreement. In the
agreement, Exh. 60, there is mention that for family necessity
and for repayment of loan, the amount was taken. When the
defendants want to prove that the real transaction was of loan, it
was not necessary for them to prove specifically that they
wanted to use that amount for purchasing truck. However, the
record like driving licence of defendant No. 1 was produced and
defendant No. 1 has given evidence that for many years, he has
been working as a truck driver. Inference with regard to the need
of defendants of money can be drawn on the basis of entire
evidence and contents of the documents.
43) The defendants have examined two witnesses like
Ramchandra Patil and Bismilla Baig. It is already observed that
nobody from the side of defendants was allowed to sign on Exh.
60. It is also not the case of plaintiff that on so called Bharna
Pavati any relative of defendants or friend of defendants has
signed as witness. These circumstances are sufficient to infer
that the plaintiff was controlling the things as defendants were in
need of money. Only those persons who were near relatives, who
were close to plaintiff and who would have helped the plaintiff,
were used as witnesses by plaintiff. In spite of all these
circumstances, attempt is made by defendants to examine
aforesaid two witnesses. This Court holds that not much weight
can be given to the evidence of these two witnesses due to
aforesaid circumstances.
44) The learned counsel for plaintiff, appellant submitted
that Bismilla Baig is brother of deceased Sandu and in his
evidence, he has given admission that there was the agreement
that the land was to be returned back after one year. It was
submitted that on the basis of this admission, inference can be
drawn that the possession was given. This Court holds that on
the basis of such stray admission, when there are circumstances
of aforesaid nature, it is not possible to infer that the possession
was really given to plaintiff on 27th or 28th. The plaintiff has
tried to contend and prove in the suit that the possession was
given to him on 28.4.1977. He has failed to prove such
contention.
45) The revenue record like 7/112 extract for the year
1975-76 shows that Sandu Baig was the owner of the property
and he was also in possession. He was taking crops like
sugarcane, gram, Jawar and wheat. The name of Mahadu was
entered in crop cultivation column in 7/12 extracts of both the
lands in the year 1976-77 and his name was shown as owner in
the column due to sale transaction. In 7/12 extracts of Survey
No. 14 one well, 10 mango trees, six lime trees, 5 Ber trees and
9 Babool trees were shown. In 7/12 extract it was shown that the
loan of Rs. 5300/- was taken by Sandu for taking another well
and for installing electric motor and it was taken from Land
Development Bank. There was mutation No. 216 in that regard.
Similar entry of loan was made in 7/12 extract of Survey No. 18
and in that land also many trees were present
46) In the agreement of sale, Exh. 60, there is mention
that there were two wells in the lands of Sandu. The aforesaid
record is sufficient to create the probability that by joining hands
with the revenue authorities, entry of name of Mahadu was
made first in crop cultivation column as owner and then the
name of plaintiff was entered in the revenue record by using the
circumstance that consolidation of lands was going on. There is
no record whatsoever produced to show that any inquiry was
made for making such entries in favour of Mahadu or plaintiff.
The record further shows that there was no entry showing that
loan was given by Khirdi Society on these lands to Sandu. Thus,
there was no necessity for plaintiff to take care and see that the
loan if at all taken from Khirdi Society was paid first.
47) In First Appeal, 7/12 extract for the year 1977-78
(zerox copy) is produced by plaintiff. Certified copy is not
produced and so, it is not possible to say as to whether the
entries in crop cultivation column were pencil entries or
confirmed entries. This record shows that name of Kashinath was
entered in the crop cultivation column and even in ownership
column in the year 1977-78. However, the name from ownership
column was removed subsequently. The 7/12 extract at Exh. 97
for the year 1989-90 shows that due to order made by authority
under the provisions of Prevention of Fragmentation and
Consolidation of Holdings Act, the name of Padmabai, widow of
Kashinath was entered in the crop cultivation column of Gat No.
30.
48) It is not disputed that a proceeding under section
145 of Criminal Procedure Code was started and possession was
first taken over by the Government in that proceeding. It
appears that due to some order made by Sessions Court,
possession was handed over to Kashinath in the said proceeding.
Such order made by the Criminal Court is not binding on the Civil
Court. It is clear that due to circumstances like there was an
agreement of sale which was registered and there was the
decision given by the Civil Court at that time (on 8.6.1984),
there was reason for Criminal Court to make such order in favour
of plaintiff. The name of Kashinath was entered in crop
cultivation column from 1977-78 to 1982-83, but the name of
Court Receiver came to be entered in the year 1983-84 and the
name of Kashinath was again entered in the year 1987-88. Copy
of decision given by the Sessions Court is not produced, but the
aforesaid circumstances are sufficient to infer that there was
decision of Civil Court in favour of plaintiff and so, such orders
were made by the Criminal Court and entries were made again
by revenue authorities in favour of plaintiff. It is the Civil Court
which is required to decide the dispute of present nature and it is
the Civil Court which is required to decide as to who was in
possession of the suit property on the relevant date, on the date
of so called agreement. This Court has already observed that the
plaintiff influenced the authorities and go entered his name even
as owner in the revenue record. There was no record like sale
deed, but he was able to get entry of his name as owner. When
the agreement was shown to be made on 27.4.1977, the name
of his brother Mahadu was entered in crop cultivation column as
owner for previous year, 1976-77. These circumstances show
that plaintiff was bent upon anyhow to grab the suit properties.
He did not feel it necessary to call upon the defendants to
execute the sale deed or even to apply to authority for getting
permission. There is the record like Exhs. 74, 77, 78, 79 and 80
showing that Survey No. 14 was Inam land, it was abolished
under the Inam Abolition Act and occupancy rights were given to
Sandu. All these circumstances can be considered to ascertain
the real transaction between the parties. This Court has no
hesitation to hold that plaintiff failed to prove his case on preponderance
of probability. On the other hand, the material is
sufficient to infer that it was loan transaction. Thus, on facts it is
not possible to interfere in the decision given by the District
Court which is lost fact finding Court. The Trial Court had
committed error only due to its belief that there was the bar of
provision of section 92 of the Evidence Act for considering the
defence taken by the defendants. Due to this belief, the Trial
Court had not considered the aforesaid material which is in
favour of the loan transaction.
49) Even if the plaintiff had proved that there was
agreement of sale, this Court or the Courts below in ordinary
course would have refused to grant relief of specific performance
of contract. At that time, the provision of section 20 of the
Specific Relief Act could have been used. The record shows that
the total area of two lands was more than 22 Acres. There were
2 wells in the lands and there is record to show that atleast on
one well electric motor was installed. In Survey No. 14 even cash
crops like sugarcane were taken in some portion by Sandu in the
year 1975-76. For taking one well, the loan of Rs. 5,300/- was
taken by Sandu from Land Development Bank prior to the date
of transactions. There were many trees and there was structure
of cattleshed in the land. It can be said that the value of the two
wells, cattleshed and electric motor was certainly more than Rs.
15,000/- at the relevant time. The defendant No. 1 has given
substantive evidence that value of the land per Acre at the
relevant time, in the year 1977 was between seven to eight
thousand rupees. Thus, the total value was more than Rs. 1.5
lakh. These were the only lands with Sandu at the relevant time
and his occupation was agriculture. In view of these
circumstances, the Court could have refused to use the
discretion in favour of plaintiff as per the power given to it in
section 20 (a) (b) and (c) of the Specific Relief Act. This Court
holds that plaintiff is not entitled to relief of specific performance
as he failed to prove that there was agreement of sale.
50) The learned counsel for plaintiff placed reliance on
some reported cases. In the case reported as 2005 (4)
Bom.C.R. 399 (AURANGABAD BENCH) [Abdul Mutalik
Rajjak Musalman & Ors. Vs. Khubai Majidkha Musalman
and Ors.], this Court has observed that the construction of a
document cannot be termed as a question of law. This Court is
avoiding to say anything about this as the construction of
document involves question of law though the Court is required
to ascertain as to whether it is substantial question of law or not.
In the case reported as (1999) 7 Supreme Court Cases 703
[Manzoor Ahmed Magray Vs. Ghulam Hassan Aram and
Ors.], the Supreme Court held that the prohibition under Special
Act like J & K Prohibition on Conversion of Land and Alienation of
Orchards Act, 1975 do not bar the maintainability of the suit for
specific performance and the permission under the Special
Enactment can be obtained even after getting the decree. This
proposition cannot be disputed. Similar observations are made in
other cases reported as (2007) 10 Supreme Court Cases 595
[Vishwa Nath Sharma Vs. Shyam Shanker Goela and Anr.]
and 2003 (4) Mh.L.J. 134 [Asudamal s/o. Laxmandas
Sindhi Vs. Kisanrao s/o. Wamanrao Dharmale and ors.].
51) In the case reported as (2000) 6 Supreme Court
Cases 420 [Motilal Jain Vs. Ramdasi Devi (Smt) and Anr.],
in view of the facts of that case, the Apex Court held that the
major portion of consideration, 2/3 portion was paid at the time
of execution of agreement and so, the willingness to pay the
remaining amount was apparent. In every case, it is the duty of
the Court to ascertain as to whether the party claiming such
specific relief was ready and willing to perform his part of the
contract. In the case reported as 2005 (2) Mh.L.J. 8 [Nilkanth
Dhondiba Chavan, since deceased by L.Rs and others Vs.
Umabai w/o. Anant Desai and Ors.] this Court made some
observations with regard to readiness and willingness as
provided in section 16 (c) of the Specific Relief Act and held in
that matter that it was not necessary to deposit the money in
Court and the requirement of making payment would arise if the
Court directs to deposit and the plaintiff fails to tender it. It was
the suit for specific performance of contract of reconveyance
and there was alternate prayer for redemption of mortgage. In
view of the nature of the matter, such observations were made.
In the case reported as AIR 1970 SUPREME COURT 546 (1)
[Nathulal Vs. Pholchand], the Apex Court has observed that
for showing readiness and willingness the purchaser need not
produce money or vouch concluded scheme for financing the
transaction. It is already observed that the nature of proof of
readiness and willingness to perform the part of contract
depends on facts and circumstances of each and every case.
52) In the result, the appeal stands dismissed. The
learned counsel for appellants requests for granting further
protection of two months. The learned counsel for other side
strongly opposed to this request. Further protection of six weeks
is granted.
[ T.V. NALAWADE, J. ]
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