sa338.04
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No.338 of 2004
Jayantilal son of Harilal Patel,
aged 45 years,
occupation - cultivator,
resident of Ugwa,
Tq. & Distt. Akola. ..... Appellant
Plaintiff
Versus
Sau. Sudhatai wife of Bhimrao
Sontakke,
aged - adult,
occupation - Household work
& social worker,
resident of Ugwa,
Tq. & Distt. Akola. ..... Respondent
Defendant
*****
Mr. C. A. Joshi, Adv., for the appellant.
Mr. Anil S. Mardikar, Senior Adv. With Ms. Kshirsagar, Adv., for
the respondent.
*****
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CORAM : A.S. CHANDURKAR, J.
Date : 28th September, 2017 ORAL JUDGMENT:
01. The appellant is the original plaintiff who is aggrieved by the judgment of the first appellate Court whereby the decree for specific performance passed by the trial Court has been reversed and the suit filed by the appellant has been dismissed.
02. It is the case of the appellant that on 25th May, 1999, he had entered into an agreement to purchase a plot of land owned by the respondent - defendant for a total consideration of Rs. 20,000/-. An amount of Rs.15,000-00 was paid as earnest amount and Rs.5,000/- was to be paid by 15th February, 2000 when the sale-deed was to be executed. According to the plaintiff, the time for completing the transaction was mutually extended by a period of three months as the defendant could not make alternate arrangements for her residence. Thereafter, as the defendant did not have the sale-deed executed, a notice came to be issued by the plaintiff on 21st August, 2000. The plaintiff thereafter filed a suit for specific performance on 13th October, 2000.
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03. The defendant filed her Written Statement and denied having executed any such agreement. According to her, she had borrowed an amount of Rs.5,000/- from the plaintiff in the year 1998. The interest on the aforesaid amount was duly paid to the plaintiff from time to time. Though the entire amount borrowed was repaid, the plaintiff did not return the blank stamp paper and instead got the aforesaid agreement prepared.
04. The parties led evidence before the trial Court. The trial Court held that the plaintiff had proved the execution of the agreement at Exh.22. It further found that the earnest amount of Rs.15,000/- was duly paid and the plaintiff was ready and willing to perform his part of the agreement. The suit was accordingly decreed.
The first appellate Court after holding that the agreement in question was not duly registered nor was the same proved in accordance with provisions of Sections 67, 68, 70 to 71 of the Evidence Act [for short, "the said Act"] concluded that the said document was not genuine. After further observing that the trial Court ought to have considered the grant of alternate relief of refund of earnest amount, it allowed the appeal and dismissed the suit. Being aggrieved, the plaintiff has filed this appeal.
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05. While admitting the appeal, the following substantial questions of law were framed:-
"1. Whether the first appellate Court was justified in reversing the judgment and decree passed by the trial Court, on the ground that the plaintiff had failed to prove the agreement Exh.22 as per the provisions of Sections 67, 68, 70, 71 and 72 of the Evidence Act, merely because the attesting witness did not state the name of the scribe and the stamp vendor from whom the stamp was purchased?
2. Whether the first appellate Court was justified in holding that the document Exh.22 ought to have been registered under Section 17 of the Registration Act?"
06. Shri C.A. Joshi, learned counsel for the appellant, submitted that the appellate Court committed an error in holding that as the agreement at Exh.22 was not duly registered, it was not valid in law. It was submitted that there was no such mandatory requirement of having the agreement registered, especially when possession of the suit property remained with the defendant. He then submitted that by applying provisions of Sections 68, 70, 71 and 72 of the said Act to the facts of the present case, the first appellate Court again committed an ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 01:01:06 ::: sa338.04 5 error, inasmuch as an Agreement of Sale was not required by law to be attested. He further submitted that there was no question of the alternate relief being considered by the trial Court, especially when the suit for specific performance itself was decreed. He, therefore, submitted that the judgment of the appellate Court was liable to be set aside and the decree ought to be maintained.
07. Shri Anil Mardikar, learned Senior Counsel for the respondent, on the other hand, supported the impugned judgment. According to him, the first appellate Court rightly found that the agreement at Exh.22 was not duly proved by the plaintiff. After considering the entire evidence on record, the appellate Court had found that the evidence considered by the trial Court was insufficient and hence it rightly set aside the judgment of the trial Court.
08. I have heard the learned counsel for the parties at length and I have perused the impugned judgment as well that passed by the trial Court .
09. The trial Court after considering the entire evidence on record found the agreement at Exh.22 to be duly proved. After finding the plaintiff ready and willing to perform his part of the agreement, the ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 01:01:06 ::: sa338.04 6 suit came to be decreed. The appellate Court, however, completely misdirected itself when it observed in paragraph 9 of its judgment that this agreement was not registered as required by provisions of Section 17 of the Indian Registration Act, 1908. It also committed an error in observing that as per the provisions of Sections 67, 68, 70 to 72 of the Act, it was mandatory for the attesting witnesses to state the names of the scribe and stamp vendor from whom the stamp was purchased. These observations of the first appellate Court with reference to provisions of Section 68 of the said Act are totally unwarranted, inasmuch as the agreement in question was not required by law to be attested. Further, examination of an attesting witness was also not mandatorily required. I, therefore, find that the appellate Court without taking into consideration the relevant statutory provisions and the law in that regard has arrived at a conclusion that the agreement was required to be registered and the attesting witnesses were required to be examined.
10. Absence of mention of the standing tin shed has been referred to as suspicious. In the plaint, it was pleaded in paragraph 2 that defendant had agreed to remove the tin shed and the defendant had responded to the same in her Written Statement. It was, therefore, an aspect to be adjudicated on the basis of evidence on ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 01:01:06 ::: sa338.04 7 record. Similarly, the observations in para 10 of its judgment are also unwarranted in the light of the fact that the decree for specific performance having been passed, there was no occasion to consider the relief for refund of earnest amount. In other words, I find that the first appellate Court has completely misdirected itself while deciding the appeal. The appeal deserves to be re-considered in accordance with law.
11. The substantial questions of law are accordingly answered by holding that the first appellate Court was not justified in reversing the judgment of the trial Court on account of absence of the attesting witnesses being examined and names of the scribe and stamp vendor not being stated. The Court was also not justified in holding that the agreement was required to be registered.
12. As a result of the aforesaid discussion, following order is passed:-
ORDER [a] The judgment of the first appellate Court in Regular Civil Appeal No. 325 of 2001 dated 21st ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 01:01:06 ::: sa338.04 8 January, 2004 is quashed and set aside.
[b] The proceedings are remanded to the first appellate Court for the said appeal to be decided afresh and in accordance with law.
[c] It is clarified that this Court has not examined the correctness of the findings recorded by the trial Court and the appellate Court shall decide the appeal uninfluenced by any observations made in this judgment.
[d] The parties shall appear before the first appellate Court on 06th November, 2017. As the appeal is of the year 2001, same shall be decided expeditiously and within a period of six months from the first date of appearance of the parties. Record & Proceedings be sent back forthwith.
13. Second Appeal is partly allowed in aforesaid terms. No costs.
Judge
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