Mst. Chano Begum vs Ahmad Saeed
2010 Latest Caselaw 5732 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                     RFA No.515/1999

 %                                             16th December, 2010

MST. CHANO BEGUM                               ...... Appellant


                                  Through:     Mr. Mohd. Abid, Advocate


                       VERSUS

 AHMAD SAEED                                   .... Respondent

Through: Mr. S.P.Jha, Advocate

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. This is an old RFA of the year 1999. The same was dismissed for

default on 14.10.2009 and thereafter it was restored subject to payment of

costs of Rs.5000/- on 21.9.2010, and by which order the appeal was

subsequently listed for hearing today. Today, on the first call, costs were

paid however, the counsel for the appellant requested for a pass over

because he was not ready with the matter. On the second call, the counsel

states that he will file written arguments and the court should decide

accordingly. Accordingly, since, the counsel for the appellant does not want

to orally argue the case, I am proceeding to decide this case on the basis of

the record as the counsel for the respondent has strongly opposed the stand

of the appellant and has argued the case on behalf of the respondent.

2. The present appeal under Section 96 of the Code of Civil Procedure,

1908 (CPC) seeks to impugn the judgment and decree dated 21.1.1999

dismissing the suit for specific performance filed by the appellant/plaintiff.

3. The facts of this case are curious indeed, to say the least. The

property in question is one room with chajja, one store, kitchen, bathroom,

latrine, courtyard on the ground floor of premises no. 7595/B, Ward No.XIV,

Katra Khuda Bux, Qassabpura, Sadar Bazar, Delhi. The agreement to sell is

stated to be dated 23.7.1992. The husband of the appellant was the tenant

in the premises and against the husband an eviction decree was passed by

the court of the Rent Controller, Delhi on 16.3.1990 and thereafter a revision

petition was also dismissed because the tenant himself gave an undertaking

to the court to vacate the premises by 30.7.1992. However, in violation of

the undertaking, the property was not vacated. The tenant had in the

meanwhile died and the therefore contempt proceedings were initiated

against the legal heirs for failing to vacate the subject premises. In the

contempt proceedings the sons of the tenant were held guilty of contempt of

court and were evicted from the property. Therefore, only through legal

proceedings, the respondent/defendant ultimately got possession of the suit

property.

4. After the pleadings were completed in the court below in the present

suit, issues were framed and issues no.1 and 3 are the issues which are

germane to determine the matter in controversy and which issue nos. 1 and

3 read as under:-

"1. Whether the agreement to sell dt.23.7.92 was executed between the parties? OPP

3. Whether possession of the property was given to the pltff. in part performance of the said agreement? OPP"

5. These issues no.1 and 3 have been dealt with by the trial court in

paras 7 to 11 of the impugned judgment and in which inter alia, the following

conclusions have been arrived at:-

(i) The agreement to sell is a forged and fabricated document and no

proof has been given of payment in cash of Rs.20,000/- as earnest money as

stated in the Agreement to Sell out of the total sale consideration stated to

be of Rs.1,60,000/-.

(ii) The agreement to sell in the facts and circumstances of the case was

clearly improbable because why will an agreement to sell be executed of the

property just before the adjourned date in the contempt proceedings fixed

for vacating the premises and when the landlord/respondent was contesting

tooth and nail the contempt proceedings for taking back possession of the

premises.

(iii) All the witnesses who appeared on behalf of the plaintiff/appellant

were interested witnesses being mostly relatives/friends, and, no

independent witnesses were brought into the witness box.

6. Though, I need not reproduce the entire findings in this regard, it

would however be useful to reproduce paras 7 to 10 of the judgment and

which read as under:-

"7. Both the issues are taken together and they are inter related and the burden of proof of these issues was on the plaintiff. It is pertinent to mention here that neither the pltff. in person nor the deft. appeared at their witness in this case. PW1 Md. Siddiqi stated that he is son of the plaintiff as the plaintiff is parda-nashin lady, she has not come to the court and he has her general attorney and she has executed general attorney in his favour which bears thump impression of the plaintiff on all the pages which were put in his presence so he identified the thumb impression at mark A, B and C and proved the general power of attorney as Ex.PW1/1 but the same was objected for the mode of proof. He further stated that an agreement (samjotha) took place between plaintiff and deft. in writing which is dtd. 20-1-97 and again corrected himself stating that it was executed on 23-7-92. He stated that agreement was executed in his presence which is Mark- X. His father was tenant in the suit property and deft. is landlord/owner and eviction order was passed in favour of deft. and against his father with respect to suit property. His father filed revision petition before hon'ble High Court. The time was granted by the High Court for vacating the presmises and his father gave an undertaking before Hon'ble Hign Court in the revision that premises would be vacated by his father by 30-7-92, before that he died on 20-12-90, thereafter, a meeting was held between the parties in the presence of respective people of the locality and accordingly an agreement was made between the parties whereby his mother agreed to purchase the suit property and deft. agreed to sell the tenanted property in the sum of Rs.1,80,000/-. His mother paid an advance of Rs.20,000/- and agreed that sale deed would be executed and property continues to be in their possession and deft. assured them that the they would not continue with the proceedings for vacating the suit property. Two agreements were executed between the parties, one in respect of sale of the premises and amount paid by the plaintiff and the other is to the effect that the deft. could not continued with the eviction proceedings in writing. The second agreement is mark X-1, which was executed in his presence and deft. had promised to execute sale deed before the Sub Registrar and balance amount was to be paid to the deft. before the Sub Registrar on 20-9-92 at the time of execution of sale deed. They asked the deft. to execute the sale deed but they refused.

Thereafter they issued a legal notice proved postal receipt Ex.PW1/2, UPC PW1/3, AD card PW1/4, copy of notice as Ex.PW1/5. He stated that reply was received from defendant which is Ex.PW1/6 and the inland envelope is Ex.PW1/7. They also got issued another notice, postal receipt of which are proved as PW 1/7 to PW1/11, UPC Ex.PW1/12, AD Card Ex.PW1/13 to PW1/16, copy of notice Ex.PW1/17 and reply to that as Ex.PW1/18, envelope PW1/19 was proved. They are still ready to make the payment of balance amount of Rs.1,60,000/- to the deft. He further proved the postal receipt Ex.PW1/20 and PW1/21, UPC PW1/22 and copy of notice mark X-2. He admitted in his cross examination but upto what time his brothers lived in the suit premises and he stated that he did not live in the suit property. He further admitted that his mother never came to the court any time but used to do the work of Mala and she is illiterate. He stated that the tax for the purchase of suit property took place between Ahmed Syeed the deft. and Md. Ashqin the son of the deft., Md. Nasim, Md. Shariq, Md. Najarudin, Shaudin, Noor Alam, Gulzar, Siddiquin, Swalin. His mother was also there at that time all the persons together at 7595 i.e. suit property on 23-7-92. He and his brothers were in the knowledge of this understanding on 23-7- 92 the agreement was written by Noor Alam, 20/25 days before 23-7- 95 talks took place for the purchase of suit property between Ashqin and Shajudin and deft. and stated that before that no talk took place. He also admitted that there was contempt petition in the High Court and in the contempt petition he and his all five brothers made statement before the High Court that they will vacate the premises by 31-7-92 and they did not vacate by the date, hence case was adjourned for 24-9-92. Further that they moved an application before Sh. Babu Lal, ARC for satisfaction of decree but same was dismissed and withdrawn, again said dismissed as not maintainable. He also admitted that contempt was held against them. However, he denied that they have themselves fabricated the false agreement with the help of marginal witnesses and no agreements were entered between the parties at any point of time regarding sale of suit property.

8. Than plaintiff examined Sh. Rafiq Ahmed as PW2 who stated that he know the parties but he stated that he had no knowledge if there was any dispute between the parties. He know that present suit is pending. He got the compromise effected between the parties about five years back. He identified his signatures on Mark-X at point D stating that it was executed in his presence and signed by Nazirudin and himself and Ahmed Syeed and identified the signatures of Ahmed Syeed at point-C. The document mark-X is also signed by him at point- F and signatures of Ahmed Sayeed at point-G as it was executed in his presence. This document was executed when the compromise was effected between the parties. He stated as far as he remembers there was a deal of sale of house between the parties of Rs.1,80,000/- and plaintiff paid Rs.20,000/- as advance to the deft. The other persons present were Md. Sindiqin, Nasirudin, Noor Alam and other relatives of

the parties. In his cross-examination he stated that five years back on 23-7-92 he lived at 32-27, Turkman Gate, he could read and write Urdu. He did not remember the date of agreement and he was not asked by anyone to come but he want himself. He never met deft. nor know him before the agreements. He knew Chano Begum since 1589. The shop of son of plaintiff was by the site of his house since 1589 and he was in waiting terms and Hazi Walin used to tell him about litigation pending between them. He further stated that in the year of 1995 he met plaintiff at the time of death of his wife and he did not remember when he met her before. He had talks with Chano Begum.

9. The testimony of PW2 Shafiq Ahmed does not inspire the confidence because he has deposed contradictory saying that he get compromise effected and on the same breath he is stating that he has no knowledge if there was a dispute between the parties. He has not disclosed whether any receipt was executed for Rs.20,000/- or he counted himself the money so that he could say that an amount of Rs.20,000/- was paid.

10. Thereafter, the plaintiff examined Sh. V.Kumar Sakuja as PW3 who proved his report Ex.PW3/1 stating that report is correct and also proved the negatives as PW3/2 to PW3/9 and individual photographs prepared from negative are Ex.PW3/10 to PW3/17. He opined that signatures referred in his report under question are in the handwriting of one and the same writer shoes handwriting the admitted signatures are. He denied in his cross-examination that signatures D-1 and D2 are clearly made as forged signatures and deferred from the comparative signatures in all receipts. Therefore, came the next witness Sh. Neer Aalam as PW4 who stated that he has written the document X-1 and X and the documents were executed by Ahmad Syeed and Smt. Chano Begum. He identified the signatures of Ahmad Syeed at point E, stating that he has put the signatures in his presence. In his cross-examination he stated that the plaintiff Smt. Chano Begum is his mother in law. He also stated that at the time of writing the documents on 23-9-92 the sons of defs. were not present and he was called by son of the plaintiff. He stated that he wrote the documents all the persons named by him were present from 7 p.m. to 12 p.m. He disclosed that he had no knowledge who purchased the stamp paper for document mark X and X-1, however, the stamp paper were given to him by Smt. Chano Begum. He admitted that there is no signature or thumb impression of the Chano Begum on document mark X and X-1. At that time the brother of deft. was also not present and the documents do not bear his signatures else. This witness is very close relative to the plaintiff and the documents are said to be the agreement but on behalf of the plaintiff neither there are the signatures of plaintiff nor of the writer Sh. Neer Alam. The stamp papers were also given by Smt. Chano Begum which have been purchased on a prior date 15-7-92. He also admitted that there was an

undertaking by the sons of plaintiff to hand over the possession of the suit property to Ahmad Syeed on or before 31-7-92. In these circumstances the truthfulness of the testimony of this witness is under cloud even those documents are unilateral. No document to support the payment of Rs.20,000/- like receipt etc. is filed on behalf of the plaintiff. On the other hand in answer to rebut the testimony of PW3 the handwriting expert Sh. V.K. Sakuja, the deft. has examined Sh. R.R. Singh handwriting expert who opined that these disputed signatures mark Q-1 and Q-2 differed from these comparative signatures from A-2 to A-3 and From S-1 and S-3 and stated that signatures of mark Q-1 and Q2 are made on imitation forgery reason for his opinion are given in report which is proved as Ext.DW 1/12. This report is quite contrary to the report of PW3. He in his cross examination stated that retouch has been shown in the photographs and the factors of forgery and difference are apparent. He admitted that the signatures of a person may vary and also stated that he has not noted the difference in admitted signatures. He categorically denied that methodology of speed, alignment, interward, spacing, interletter spacing manner of joining of letters, slants, curvatures and angularities suggest that the author of the both the signatures is the same. I have gone through the reports of both handwriting experts and the other material like negative films and positive photographs which has been considered by the experts. Sh. R. P. Singh DW2 has minutely examined the signatures and he noticed that the admitted signatures have smoothness whereas in the disputed signatures there are pauses and breaks. He has also represented the angle of slant of letters and construction of the letters and in my opinion the report of Sh. R.P. Singh handwriting expert is more in conformity of the representation of photographs of the disputed and admitted signatures. The photographs Ex.PW2/10 and PW2/11 when compared with DW2/12 and DW2/13 lot of difference is found in which the word alif, hony moon, award dtc. are scribed in different pattern. Therefore, I agree with the report of Sh. R.P. Singh handwriting expert that the disputed signatures are not in the same handwriting as those shown in Ex.DW2/12 and DW2/13."

7. Sitting as an Appellate Court, I am not entitled to set aside the

detailed findings of facts and conclusions merely because another view is

possible, though in my opinion, in this case only one conclusion was possible

and which has been arrived at by the trial court being that the agreement to

sell was forged and fabricated. Clearly, the case, stand, arguments,

evidence etc. as led on behalf of the plaintiff/appellant were wholly

unbelievable in the facts and circumstances of the case.

8. In view of the above, I do not find any reason at all to interfere with the

impugned judgment and decree dismissing the suit for specific performance.

Since, in my opinion, this suit and the appeal are clearly an abuse of the

process of law, the appeal is dismissed with costs of Rs.25,000/- which shall

be payable within a period of two weeks from today.

The appeal is dismissed accordingly. Trial Court record be sent back.

DECEMBER 16, 2010                                VALMIKI J. MEHTA,J
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