Latafat Hussain vs Abdul Jabbar & Another
2000 Latest Caselaw 69 Del

ORDER

Vijender Jain, J.

1. This second appeal has been filed by the appellant, who was the original plaintiff, for obtaining a decree for declaration to the effect that sale effected by defendant No. 1 who is respondent No.1 before me, Abdul Jabbar, in favour of present respondent No. 2 Ishtiaque Ahmed in respect of property No. 5358 including Barsati situated Kucha Rehman, Balli Maran, Delhi vide sale deed dated 4.4.1972 was incompetent, invalid, ineffective and inoperative qua the appellant with the further prayer that respondent No. 1 was liable to specifically perform contract made with the appellant dated 5.12.1971. From the pleadings of the parties the Trial Court framed the following issues:-

1. Whether the suit in its present form is not maintainable ? OPD

2. Whether the suit is properly valued for purposes of court fee and jurisdiction ? OPP.

3. Whether the defendant No. 1 did not agree to sell the premises to the plaintiff? OPD-1.

4. Whether the agreement is inadmissible in evidence ? OPD-1.

5. Whether the defendant No. 2 is a bona fide purchaser for value without notice of agreement in favour of the plaintiff? If so, effect thereof? OPD-2.

6. To what relief, if any, is the plaintiff entitled?

Thereafter another issue was framed as Issue No. 3(a) :-

3(a) Whether the plaintiff has all along been ready and capable of performing his part of the contract? OPP.

2. The Trial Court decreed the suit of the appellant vide judgment dated 26.7.1976. Two separate appeals against the said judgment and decree of the Trial Court were preferred. The Additional District Judge reversed the finding of the Trial Court and dismissed the suit filed by the plaintiff on 30.8.1977. Aggrieved by the said dismissal the appellant filed the present second appeal in this Court.

3. Mr. H.C. Sukhija, learned counsel appearing for the appellant, has contended that the impugned order suffers from conjectures and surmises. He has contended that while passing the impugned order the First Appellate Court has not taken into consideration the relevant provisions of Indian Evidence Act such as Sections 22, 29, 67, 68, 91 and 92 while reappreciating the evidence arrived at by the Trial Court taking into consideration the material placed before the Trial Court and evidence adduced by the parties. I support of his submissions learned counsel for the appellant has cited S.V.R. Mudaliar (dead) by L.Rs. & Ors. Vs. Mrs. Rajabu F. Buhari (Dead) by LRs. and Ors., .

4. Mr. Sukhija has further contended that the First Information Report was under an obligation to give reasoning before setting aside the order of the Trial Court which in the instant case has not been done and, therefore, the impugned order suffers from illegality and deserves to be set aside. Mr. Sukhija has contended that overwhelming evidence was before the Trial Court that respondent No. 1 had executed Exhibit 'X'. The finding of the first Appellate Court that said agreement was not executed by respondent No. 1 was totally perverse. Repelling the contention of Mr. Shyam Kishore, learned counsel appearing for respondent No. 2, regarding the basis on which the first Appellate Court reversed the finding of the Trial Court. Mr. Sukhija has contended that such discrepancies with regard to collateral or subsidiary facts or matter of details occur even in the statements of truthful witnesses when they try to depose the events which happen long before their examination. In support of his contentions, learned counsel for the appellant has cited State of Punjab Vs. Wassan Singh and Ors., .

5. He has further contended that the finding of the first Appellate Court that there was thumb impression was totally unwarranted as from the scrutiny of document Exhibit 'X'. It would be clear that was signed by respondent No. 1 in the language which was known to respondent No. 1. Lastly, Mr. Sukhija has contended that the first Appellate Court committed a grave irregularity in shifting the burden of proof and on that basis setting aside the judgment and decree of the Trial Court. What has been contended before me by Mr. Sukhija was that the finding of the first Appellate Court is contrary to Section 102 of the Indian Evidence Act. In support of his submissions, learned counsel for the appellant has cited Nataraja Deekshidar Vs. Aiyathurai Padayachi and Ramesh Chand Bose Vs. Gopeshwar Pd. Sharma . Mr. Sukhija further contended that respondent No. 2 was a subsequent purchaser and he can join in execution of sale deed in favour of the appellant in view of the evidence brought on record. In support of his submission, he has cited Hiralal Agarwal Vs. Bhagirathi Gore & Others and M/s. Orient Distributors Vs. Bank of India Ltd. & Others .

6. Mr. Shyam Kishore, learned counsel appearing for respondent No. 2 has strongly defended the order passed by the first Appellate Court. He argued that nowhere in the plaint it was mentioned as to who scribed the writing of Exhibit 'X' whether the same was scribed in the presence of the witnesses or without the witneses. He contended that the evidence which was led before the Trial Court, was not only full of discrepancy but, as a matter of fact, was contradictory in terms. Mr. Shyam Kishore contended that from the bare perusal of the story put up by the appellant and his own witnesses it would be manifestly clear that Exhibit 'X' was a document on which although respondent No. 1 might have put his signatures but the appellant miserably failed to prove before the Trial Court that what was scribed over it was read over to respondent No. 1 or that respondent No.1 has consciously executed the said agreement.

7. Reliance was placed by the learned counsel for respondent No. 2 to the notice sent by respondent No. 2 to the appellant dated 7.12.1972, Exhibit DW-4/2. It has been contended that in reply to the said notice if the appellant had a prior agreement of sale in his favour, the appellant ought to have mentioned in its reply that he had an agreement of sale prior to that of respondent No. 2 which fact was not mentioned in his reply by the appellant and, therefore, the whole case of the appellant was concocted to deprive respondent No. 2 of the agreement to sell in his favour and subsequent sale deed executed by respondent No. 1 in favour of respondent No. 2. He further contended that respondent No. 2 was a bona fide purchaser and therefore, the Court will not interfere in the finding of the first Appellate Court. He has further entitled that noting the pendency of the appeal, an application bearing C.M. No. 1727 of 1983 was filed and along with the said application the report of the hand writing expert was also filed which clearly indicated that the, stamp which was put on Exhibit 'X' could not have been purchased before August, 1972. Mr. Shyam Kishore led stress on the reply to this application filed by the non applicant/appellant where the appellant mentioned that the stamp was fixed later on without mentioning that the same was fixed on 6.12.1971 or any other date. Learned counsel has further contended that said ambiguity has been left by the appellant consciously and, therefore, he has contended that the document. Exhibit 'X' was not a genuine document but was a forged one Mr. Shyam Kishore has further contended that when defendant No. 2 had served a notice, Exhibit DW-4/2, in December 1972, the mere fact that the appellant filed a suit in May,1973 would show the mala fide of the appellant. It was also contended by learned counsel for respondent No. 2 that in appeal onus is irrelevant. The Court has to read entire evidence before coming to a finding. He has further contended that even otherwise there was enough material on record to show that from the meagre salary the appellant failed to show that he was ready, willing and had sufficient funds at the relevant time to purchase the property.

8. I have given my careful consideration to the arguments advanced by learned counsel appearing for both the parties. Respondent No. 1 has chosen not to appear before this Court after he was served. I need no go into various controversies and arguments, which have been advanced by the learned counsel for both the parties. What is important in this second appeal is whether the re-appreciation of the evidence by the first Appellate Court and on the basis of which the finding of the Trial Court has been set aside, is in accordance with law or not. The fundamental principles in deciding the appeal is that normally the Appellate Court should not interfere in the finding of fact arrived at by Trial Court after due consideration of the evidence and material on record until and unless such findings are totally perverse or contrary to the evidence on record. In the instant case the Trial Court while dealing with Issue No. 3, which is material to decide the controversy between the parties had retired upon on the testimony of plaintiff, who stated that he went to Mohd. Ilahi a social worker of the area and requested him to accompany him to witness the execution of the receipt. The Trial Court also relied on the testimony of plaintiff that Mohd. Ilahi wrote the final receipt, Another factor which went in consideration for the Trial Court was that the final receipt was read to respondent No. 1 and Rs. 100/- note was given to respondent No. 1 and respondent No. 1 to Rs. 99/- as earnest money and returned Rs.1/- and signed the receipt and thereafter Mohd. Ilahi, Sabhir Ali and Jamiluddin also signed the receipt. The Trial Court also relied that at the time of execution of the receipt, respondent No. 2 his brother, who appeared as DW- 3 Niaz Ahmed, and his father, Hafiz Ahmed, were also present. At page-269 of the paper book, PW-1 has stated :-

"...................I went to Mohd. Ilahi, a social work of the locality and requested him to accompany me to witness the execution of the receipt it my favour. I came to Shaghid Ali's shop with Mohd. Ilahi and gave a draft of a receipt prepared for me by a friend of mine, to Mohd. Ilahi. Mohd. Ilahi wrote the final receipt. Its contents were read over to defendant No.1............"

9. Now, let us see the testimony of Mohd.Ilahi, who appeared as PW-2, He deposed:-

"...........I know Latafat Hussain, plaintiff present in Court. I cannot tell the number of the house in which he lives. Abdul Jabbar was the owner of this house. In December 1971 he came to me and stated that an agreement was to be executed and I should accompany him to the shop of Sabhir Ali. I accompanied him, Abdul Jabbar, Sabhir Ali, Jamiluddin and Latafat Hussain were already present there."

10. The case of the plaintiff was that he went to the house of Mohd. Ilahi, who was a social worker, when Mohd. Ilahi appeared in the witness box on behalf of the plaintiff as PW-2, he deposed that Abdul Jabbar and Latafat Hussain were already present. The said PW-2 stated:-

"...................... Latafat Hussain gave me a writing for preparing a copy thereof. I had first read out the contents of the writing to all the above-mentioned persons present and then prepared a copy."

11. Whereas PW-1 in his deposition has stated that he gave the draft of receipt prepared from his friend to Mohd. Ilahi and Mohd. Ilahi wrote the final receipt and its contents were read over to respondent No. 1. In cross-examination PW-2 admitted that he was a tailor and studied upto 6th standard and he has never done the writing of any document.

12. The case set up by the plaintiff and his star witness was totally in contra distinction to the stand taken by the plaintiff. The First Appellate Court has discussed in detail the discrepancies and contradiction which have crept in the evidence in relation to other aspects of execution of Exhibit 'X' which created circumstances for the First Appellate Court to arrive at a different finding than that of Trial Court. It does not stand to reason as to when notice, Exhibit DW-4/2, was sent by respondent No. 2 to the appellant in December, 1972, same having been received by appellant, who replied the same by Exhibit P-6, what stopped the appellant to take the plea that there was a prior agreement with the appellant dated 5.12.1971. The net result is that the finding arrived at by the First Appellate Court was totally in conformity with the evidence on record and, as a matter of fact, the Trial Court had committed a grave error in not properly appreciating the evidence produced by the parties. In the result, the appeal is dismissed with cost throughout.