====================================================== 1. Baikunth Singh S/O Late Kashi Singh R/O Nepura, P.S. Deepnagar, District – v. 1
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.80 of 2012 ====================================================== 1. Baikunth Singh S/O Late Kashi Singh R/O Nepura, P.S. Deepnagar, District – Nalanda .... .... Appellant/s Versus 1. Smt. Santosh Kumari W/O Sunil Kumar, D/O Shri Rajendra Prasad Singh R/O Village - Jay Kishun Bigha, P.S. Silao, District - Nalanda At Present Resident Of Village - Nepura, P.S. Deepnagar, District - Nalanda ====================================================== .... .... Respondent/s Appearance : For the Appellant/s : Mr. Neeraj Kumar For the Respondent/s : Mr. ======================================================
Legal Reasoning
by Courts below. It is well settled law that burden of proof about existence of a thing is on the person, who asserts that thing. This is also fundamental Rule of evidence that if the parties adduced evidence in support of their cases, the question of burden of proof becomes irrelevant. In the present case, both the parties brought oral and documentary evidence to proof their respective cases. This is to be kept in mind that there was no specific denial of the defendant to the effect that the signature appearing in the agreement of sale, was not of the defendant. He developed a case that his signature on a plain paper might have been used for preparing an agreement to sell. As has been noted above, DW 3 in his statement in the course of trial said that signature of the defendant on the plain paper was fraudulently taken. There is apparent contradiction between the evidence of the defendant as witness and that of DW3 who is said to have purchased the suit property prior to execution of agreement for sale. It was the defendant, who 8 Patna High Court SA No.80 of 2012 (8) dt.16-05-2013 8 / 8 asserted that he had already sold the land to Nirbhay Kumar (D W 3) prior to the alleged date of execution of agreement to sell. Not only that he measurably failed to prove his assertion by bringing of record the said sale deed, there was no material before the Courts below, as appears from the discussion in the impugned judgement, that earlier sale deed executed was with respect to the same property, by giving description of the land as available in the Revenue records as also the boundary and area of the land. In my view, the substantial questions of law as raised in the memo of appeal are not involved in the present appeal. The appeal does not merit and is accordingly, dismissed. (Chakradhari Sharan Singh, J) Sudha/-
Arguments
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 8 16-05-2013 By the present Second Appeal, the appellant- plaintiff has challenged the Judgment and decree dated 26.11.2011 passed by learned Additional District & Sessions Judge, F.T.C.- III, Nalanda, Biharsharif in Title Appeal No. 29/2009/10/2010 whereby he confirmed the judgment and decree dated 30.5.2009 passed by learned Sub- Judge Ist, Biharsharif, Nalanda in Title Suit No. 20/2005. Suit was filed by the appellant/plaintiff for specific performance of contract and for a direction to the 2 Patna High Court SA No.80 of 2012 (8) dt.16-05-2013 2 / 8 defendant/respondent to take balance consideration money of Rs. 2000/- and execute the sale deed as per the terms and conditions laid down in the agreement and if the defendant failed to execute the sale deed, the same be executed through the process of law. Learned Trial Court decreed the suit in favour of the plaintiff. The Appeal preferred against the Judgment and decree of the Trial Court, was also dismissed by the impugned judgment under Appeal. As per the plaintiff’s case, the defendant was in need of money for treatment of his disease and he negotiated to sell the suit property as mentioned in Schedule-I of the plaint. The plaintiff had agreed to purchase the property for consideration money of Rs. 55,000/-, out of which a sum of Rs. 53,000/- was paid immediately and agreement to sell was drawn, on 28.09.2004 and handed over to the plaintiff on the same date. It was stipulated in the agreement that the rest amount of consideration money i.e. Rs. 2000- would be paid by 1.3.2005 and five months time was given whereafter, the defendant would execute the registered sale deed. Further case of the plaintiff before the Trial Court was that he was ready to pay remaining sum of Rs. 2000/- and he had made a request to the defendant on 23.2.2005 to execute a deed. As the defendant failed to honor the agreement to sell, the plaintiff instituted the suit. 3 Patna High Court SA No.80 of 2012 (8) dt.16-05-2013 3 / 8 The defendant contested the suit by filing a written statement denying the assertion made in the plaint. He denied that he was suffering from any disease or was in need of money or he received any money as alleged in the plaint as part consideration money for sale of the suit property, though the defendant admitted that he received notice from the plaintiff on 12.02.2005 for transfer of the suit property on the basis of the alleged agreement to sell to which he had sent reply. Defendant though did not deny his signature on the agreement for sale but specifically took a plea that he and Rajendra Prasad Singh were intimate to him and he might have got signature of the defendant on plain paper, which might have been converted into deed of agreement. The defendant denied liability on the basis of the said agreement to sell. He further took a plea that he had sold the suit property to one Nirbhay Kumar for Rs. 32,000/- on 24.9.2004, merely four days before the alleged date of agreement to sell i.e. on 28.09.2004. On the basis of pleadings of the contesting parties, learned Trial Court formulated altogether seven issues including issues nos. IV and V which read thus:- “ IV. Is the deed of agreement for sale dated 28.09.2004 executed by the defendant in favour of the defendant and the same is valid, genuine and binding on the defendant? V. Whether the plaintiff was or is always ready to perform his part of contract and still ready and 4 Patna High Court SA No.80 of 2012 (8) dt.16-05-2013 4 / 8 willing to perform the same.’’ After framing of issues, the parties led their respective evidence in support of their case. The plaintiff examined altogether four witnesses and produced four documents. Similarly, the defendant examined three witnesses. However, he did not bring on record any documentary evidence. It appears from the judgment of the Trial Court as well as learned Ist Appellate Court that the specific case of the defendant was that he had executed a sale deed with respect to the same property in favour of Nirbhay Kumar (DW 3). In course of examination he is said to have stated that though he had purchased the land but he would not be filing the sale deed. Learned Courts below took into account the fact that DW3 in his deposition had stated that signature of the appellant was taken forcibly on a stamp paper on which forged deed of agreement was prepared. This was, however, not the case of the plaintiff. Learned Trial Court on the basis of assessment of the evidence came to a finding that deed was executed by Baikunth Singh, defendant/respondent. Learned Trial Court considered oral and documentary evidence and came to a finding that though the plaintiff was ready and willing to perform her part of contract as per terms and conditions but the defendants were not agreeable to 5 Patna High Court SA No.80 of 2012 (8) dt.16-05-2013 5 / 8 this. On the basis of scrutining and assessment of pleadings and evidence available on record, learned trial Court decided the issues nos. 4, 5 and 6 in favor of the plaintiff and decreed the suit in his favour. Learned First Appellate Court after considering the rival pleadings, evidence adduced in course of trial by the concerned parties and submissions made on behalf of the parties, formulated six points of consideration including points Nos. IV and V which are being quoted kept here in below:- “IV. Whether the agreement for sale dated 28.09.2004 executed by the defendant in favour of the plaintiff was valid, genuine and binding on the defendant? V. Whether the plaintiff was willing to perform her part of contract of agreement to sale.” From the Judgment of the learned First Appellate Court, it would appear that after considering the evidence on record, concurred with the findings of the facts arrived at by the first Appellate Court and held that the said agreement to sell was valid and binding upon the defendant. Learned counsel appearing on behalf of the appellant has submitted that the courts below wrongly shifted the burden of proof on the plaintiff that the agreement of sale deed dated 6 Patna High Court SA No.80 of 2012 (8) dt.16-05-2013 6 / 8 28.9.2004 was forged and fabricated document. He has further submitted that there was no recital in the deed that the defendant accepted Rs. 53,000/- as advance money. He has submitted that findings of the Court below are based on surmises and conjectures and are not sustainable. According to him the present Second Appeal involved following substantial questions of law:- “Whether the plaintiff has been able to prove the factum of Bai- beyana dated 28.09.2004 executed by defendant in her favour? Whether the burden of proof in a suit for Specific performance of Contract lies on plaintiff or defendant, especially when defendant has denied the execution of contract? Whether the plaintiff has been able to prove the fact that Rs. 53,000/- was paid to defendant on 28.09.2004? Whether a deed for an agreement for sale must be registered or not?” In my own opinion, it is purely a question of fact as to whether the defendant had put his signature on the agreement to sell. This is also a question of fact as to whether he had received a sum of Rs. 53,000/-, as mentioned in the agreement to sell. Learned Trial Court as well as first Appellate Court on the basis of their appraisal, and appreciation of evidence, came to a conclusion/finding that the agreement to sell was duly executed and part payment of the consideration money of Rs. 53,000/- was 7 Patna High Court SA No.80 of 2012 (8) dt.16-05-2013 7 / 8 made to the defendant. From the perusal of the two judgments, it can not be said that they are perverse so as to warrant this Court to interfere in exercise of power of the Code of Civil Procedure? I find no infirmity in manner of assessment of evidence