Jayantilal Harilal Patel Akola vs Sou Sudhatai Bhimrao Sontakke ...
2017 Latest Caselaw 7676 Bom

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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

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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

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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

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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

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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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