Onkarnath vs Lrs Of Gangaram
2021 Latest Caselaw 7152 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 35/2019 Onkarnath S/o Shri Rawatnath, Aged About 79 Years, R/o Bamblu, Tehsil And District Bikaner.

----Appellant Versus

1. Lrs Of Gangaram, S/o Shri Tikuram (Since Deceased Through His Lrs)

2. Nanu W/o Late Shri Gangaram, Bamblu, Tehsil And District Bikaner.

3. Mamraj S/o Late Gangaram, Bamblu, Tehsil And District Bikaner.

4. Rampratap, Bamblu, Tehsil And District Bikaner.

5. Mirga W/o Mamraj, D/o Late Gangaram, R/o Himmatasar, Tehsil And District Bikaner.

6. Sugni W/o Jetharam, D/o Late Gangaram, R/o Himmatasar, Tehsil And District Bikaner.

7. Sajna W/o Padmaram, D/o Late Gangaram, R/o Upani, Tehsil Sridungargarh, District Bikaner.

8. Sita W/o Nanuram, D/o Late Gangaram, R/o Bidasariya, Tehsil Nokha, District Bikaner.

9. Smt. Badhu W/o Ramkishan, D/o Late Gangaram, R/o Upani, Tehsil Sridungargarh, District Bikaner.

                                                                ----Respondents


For Appellant(s)         :     Mr. Dalip Singh Rajvi.
For Respondent(s)        :


           HON'BLE MR. JUSTICE ARUN BHANSALI
                          Order

15/03/2021

This appeal is directed against judgment and decree dated

17.11.2018 passed by Additional District No.1, Bikaner ('the first

appellate court'), whereby, the appeal filed by the respondents

against the judgment and decree dated 13.11.2007 has been

(2 of 6) [CSA-35/2019]

allowed and the decree for specific performance passed by the

trial court has been set aside.

The suit for specific performance was filed by the appellant -

plaintiff inter alia with the submissions that respondent -

Gangaram was in requirement of Rs.35,000/- for his personal and

household expenses and, therefore, for the agriculture land

comprising in Khasra No.594 admeasuring 11.34 hectare, an

agreement to sale dated 14.5.2001 was entered into and it was

agreed that the sale deed would be executed in five months.

When the defendant was required to get the sale deed registered,

he started avoiding and on 3.11.2001 refused. It is claimed that

the plaintiff was ready and willing to purchase the stamps and pay

the registration fees and, therefore, prayed that sale deed be got

registered in his favour and the possession of the land be handed

over to him.

Written statement was filed denying the execution of the

agreement. It was claimed that the same was fraudulent and

concocted and that the same did not fall within the definition of an

agreement and, therefore, the suit be dismissed.

Based on the averments of the parties, the trial court framed

four issues on 5.2.2003. Whereafter on 19.8.2004, two more

issues were framed. On behalf of the plaintiff, two witnesses were

produced and the agreement was exhibited. On behalf of the

defendant, two witnesses were produced and report of expert was

produced as Ex.A/1. One more document i.e. death certificate of

Kishannath was produced.

After hearing the parties, the trial court came to the

conclusion that the plaintiff from his evidence and that of

Narayannath and from cross-examination of Sahiramnath has

(3 of 6) [CSA-35/2019]

proved that the defendant had executed the agreement after

receiving Rs.35,000/- and placed his thumb impression from

which, Sahiramnath and Kishannath signed as witnesses, which

was admitted by Sahiramnath. The plaintiff was always ready and

willing to perform his part of the contract.

The issue regarding the agreement being concocted was

decided against the defendant. On the admissibility of the

document, it was found that as the deficient stamp duty alongwith

penalty has been paid, the objection had no substance. Ultimately,

the suit was decreed alongwith costs for specific performance of

the contract.

Feeling aggrieved, the defendant filed first appeal.

The first appellate court after hearing the parties decided the

appeal issue-wise and came to the conclusion that the document

(Ex.1) only bears the thumb impression of the transferor and

signature / thumb impression of transferee was not there. In

absence of signatures / thumb impression of the transferee on

Ex.1, the execution of the document was found suspicious.

It was indicated that the absence of signatures / thumb

impression of the tansferee has not been explained. The plaintiff

has failed from his evidence to prove that the document was

executed by defendant after receiving Rs.35,000/-. The court also

found that the agreement dated 14.5.2001 show Sahiramnath and

Kishannath as witnesses, whereas, Kishannath had died prior to

14.5.2001. The court did not accept the plea that Kishannath, who

had witnessed the agreement was different from one who had

died on 13.12.1997. The statement of PW/2 Narayannath was not

believed by the appellate court and as oath commissioner, who

had certified the agreement (Ex.1) was not produced, the

(4 of 6) [CSA-35/2019]

appellate court came to the conclusion that the plaintiff had failed

to prove the execution of the agreement and on account of its

finding on the said aspect, reversed the finding recorded by the

trial court on issue no.1.

On the aspect of readiness and willingness, it was found that

no concrete evidence was produced to indicate the readiness and

willingness. The appellate court also came to the conclusion that

defendant had proved that the document (Ex.1) was concocted.

Ultimately, based on its findings, the judgment and decree passed

by the trial court was reversed and the suit was dismissed.

Learned counsel for the appellant made submissions that the

appellate court was not justified in reversing the judgment and

decree passed by the trial court. Submissions were made that it

was proved by evidence of the witnesses that the agreement in

question was indeed executed by the defendant after receiving the

consideration as indicated and, therefore, the appellate court

merely based on conjunctures, has reversed the finding recorded

by the trial court, which finding is wholly perverse and as such

give rise to substantial question of law.

I have considered the submissions made by learned counsel

for the appellant and have perused the material available on

record as well as record of both the courts below.

A bare perusal of the agreement (Ex.1) indicates that the

same purportedly bears the thumb impression of defendant -

Gangaram and also signatures of Sahiramnath on both pages and

that of Kishannath on the last page. The document is also attested

by an oath commissioner. As already noticed, the document did

not bear the signatures of the appellant. For proving the said

agreement, the plaintiff examined himself and one Narayannath.

(5 of 6) [CSA-35/2019]

The document (Ex.1) neither bears signatures / thumb impression

of the plaintiff nor that of Narayannath.

The appellate court after analyzing the evidence of

Narayannath, came to the conclusion that his presence at the time

of execution of the document was doubtful on account of the

contradictions noticed in his cross-examination as to who all

accompanied him from village for execution of the document. The

witness to the document Sahiramnath appeared as witness of the

defendant and denied his signatures on the document for the

purpose of agreement to sale and indicated that the signatures

were got for the purpose of making an application on behalf of the

villagers to the electricity department, he also indicated that the

other purported signature on the agreement as witness was that

of his father Kishannath, who had died in the year 1997, who

always put his thumb impression and did not sign.

Once the document was purportedly thumb impressioned by

Gangaram - defendant and the same was witnessed by

Sahiramnath and Kishannath and was bearing the seal and

signatures of a oath commissioner and none of those persons

supported the execution of the document and the appellant

though contended that the Kishannath was not father of

Sahiramnath but was some other Kishannath and did not produce

him and the oath commissioner was also not produced in

evidence, the first appellate court rightly came to the conclusion

that the execution of the document was not proved.

The finding, despite attempts made by learned counsel for

the appellant to show the perversity, cannot be termed as

perverse in any manner.

(6 of 6) [CSA-35/2019]

Once the execution of the document i.e. agreement to sale

itself is not proved as found by the first appellate court, the

outcome of the suit / appeal is natural and, therefore, the

acceptance of the appeal by the first appellate court cannot be

faulted on any ground.

In view of the above discussion, the second appeal has no

substance. The same is, therefore, dismissed.

(ARUN BHANSALI),J 23-Sumit/-

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