Krishna Mohan Bhagat v. Sarjug Prasad Bhagat & Sushil Prasad Bhagat

the Code. The plaintiff is the appellant before this Court.

#3. The appellant is aggrieved by the judgment and order dated 12.07.2011 passed by learned Additional District Judge, F.T.C. Ist, Munger in Title Appeal No. 14/95 whereby while dismissing the appeal he has confirmed the judgment dated

28.09.1995 passed by learned Sub-Judge VIth Munger in T.S. No. 162/85. 2 Patna High Court SA No.562 of 2011 (8) dt.26-02-2013

#4. The plaintiff filed the suit for a decree of Specific Performance of Contract directing the defendants to perform their part of the agreement dated 14.06.1983 by a sufficient instrument and to do all acts necessary to put the plaintiff in full possession over the suit land. The plaintiff alternatively sought for relief for award of money decree of Rs. 8111/- being the amount of earnest money and Rs. 25, 000/- as damage altogether, with interest.

#5. The plaintiff claimed that defendants No. 1 and 2 Sarjug Prasad Bhagat and Shushil Prasad Bhagat (Respondents No. 1 and 2) executed an agreement for sale (Zarbeyana-nama) on

14.06.1983 and contracted to sell their Khas share in the suit property described in Schedule „A‟ to the Plaint in favour of the plaintiff for valuable consideration of rupees thirty thousand. A sum of Rs. 8, 111/- was paid in advance.

#6. According to the case of the plaintiff, the defendants gave assurance to execute sale deed for the suit property and also that after execution of sale deed and after exchange of chirkut rest consideration amount i.e., Rs. 21, 889/- would be paid. When execution was demanded, the defendants said to have refused initially but subsequently they agreed and directed the plaintiff to purchase requisites stamp duty which also the plaintiff did. According to the plaintiff, 31.10.1985 was the date fixed for 3 Patna High Court SA No.562 of 2011 (8) dt.26-02-2013 execution of the sale deed for which he was required to be in the concerned registration office but the defendant did not turn up which gave him cause of action to file the suit.

#7. The defendants filed their written statement and contested the suit. The defendants denied having executed such agreement for sale and took plea inter alia that the said Zarbeyana-nama (agreement for sale) was forged. On the basis of the rival pleadings, learned Trial Court framed altogether nine issues and evidence was led accordingly. Issues No. V, VI and VII framed by the learned Trial Court read as follows:- “V. Whether the alleged agreement for sale is a genuine document? VI. Whether the plaintiff was and is all along and continuously ready and remained ready and willing to his (sic) part of the alleged contract? VII. Whether the defendants have executed the alleged agreement for sale?”

#8. Learned Trial Court on the basis of the evidence available on record while dealing with the issues No. VI and VII, came to a finding that the defendants did not have exclusive possession over the suit land since the entire family was joint and there was no question of any Khas share of the defendants and as such he was 4 Patna High Court SA No.562 of 2011 (8) dt.26-02-2013 not competent to enter into a contract as alleged. Learned Trial Court also came to the findings that there was no witness to the alleged payment of consideration advance money said to have been made before execution nor any witness to the execution of alleged Zarbeyana-nama nor the signature was got verified by plaintiff by any finger print or handwriting expert in this connection. The learned Trial Court accordingly reached to the finding that the said agreement for sale dated 14.06.1983 could not be said to be a genuine document. While dealing with issue No. VII learned First Appellate Court recorded that in view of the finding against issue No. V and VII, subsequent act as alleged on behalf of the plaintiff became not acceptable. Learned Trial Court however, observed on the basis of evidence that the plaintiff failed to file original draft obtained by him.

#9. Aggrieved by the judgment of the learned Trial Court, the appellant preferred first appeal in the file of learned Additional District Judge, F.T.C. Ist, Munger vide Sub-Judge Title Appeal No. 14/95.

#10. The appellant took the plea before Learned First Appellate Court that the appellant discharged his initial duty of proving the agreement for sale (Exhibit-5) by P.W.-3 and thereafter the onus shifted to the defendants if they claimed their 5 Patna High Court SA No.562 of 2011 (8) dt.26-02-2013 signatures to be forged and fabricated. The appellant took the plea that it was not the appellant who was required to examine any handwriting expert for proving the signature and assailed the judgment of the Trial Court, accordingly.

#11. The First Appellate Court formulated two points for determination. Point No. I is relevant and is being quoted hereinbelow:- “I. Whether the alleged deed of Zerbeyana-nama dated

14.06.1983 is executed by Saryug Prasad Bhagat and Shushil Prasad Bhagat in favour of Krishn Mohan Bhagat and is valid, genuine document?”

#12. On appreciation of evidence available on record learned First Appellate Court concurred with the findings of the Trial Court. The First Appellate Court in paragraph No. 12 of its judgment came to a conclusive finding that the said agreement for sale dated 14.06.1983 (Exhibit-„5‟) was not executed by the respondents No. 1 and 2 in favour of the plaintiff nor it was a genuine valid document.

#13. From the judgment of learned First Appellate Court under challenge it will appear that after considering the pleadings and counter pleadings, evidence of the witnesses adduced in course of their examination and cross-examination as also the documents exhibited in course of trial, came to the finding that the 6 Patna High Court SA No.562 of 2011 (8) dt.26-02-2013 agreement for sale dated 14.06.1983 (Exhibit-5) was not executed by respondents-defendants No. 1 and 2 in favour of the plaintiff nor it was a genuine and valid document.

#14. Assailing the findings of the learned Courts below, learned Senior counsel has submitted that once the plaintiff discharged his initial duty of proving the Zarbeyana-nama (agreement for sale) by a witness, the onus shifted to the defendants to establish that the signatures on Exbibit-5 were not their and that both the Courts wrongly shifted the onus on the plaintiff to prove the signature of the defendant on Exhibit-5 i.e., Zarbeyana-nama. Over and above this, no question of law / substantial question of law has been raised by learned Senior Counsel which according to him is involved in the present Second Appeal.

#15. This is to be noted that if the document relied upon by one party is challenged by the other as not genuine, sham or bogus, the party who alleges it to be bogus has to prove nothing until the party relying upon such document established its genuineness. Reference may be made in this regard to the judgment of Supreme Court reported in (2011) 12 SCC 220 (Rangammal Vs. Kuppuswami & Anr.):- Para-18 ……“When the plaintiff/respondent No. 1 failed to discharge this burden, the question of discharge of 7 Patna High Court SA No.562 of 2011 (8) dt.26-02-2013 burden to disprove the sale deed by the 2nd defendant / appellant-Rangammal do not arise at all as per the provisions of Evidence Act. It may be relevant at this stage to cite the ratio of the decision of this Court delivered in the matter of Subhra Mukherjee vs. Bharat Coaking Coal Ltd, AIR 2000 SC 1203, whether the document in question was genuine or sham or bogus, the party who alleged it to be bogus had to prove nothing until the party relying upon the document established its genuineness. This was the view expressed by this Court in the matter of Subhra Mukherjee vs. Bharat Coaking Coal Ltd, AIR 2000 SC 1203 = 2000 (3) SCC 312.”

#16. The Supreme Court in case of State of J & K Vs. Hindustan Forest Company (2006) 12 SCC 198 held that the onus was on the plaintiff to positively establish its case on the basis of material available and it can not rely on weakness or absence of defence to discharge onus. Similar view has been taken in case of Corporation of City of Bangalore Vs. Zulekha Bi and Ors., (2008) 11 SCC 306 (308) that it is the Plaintiff to prove his title to property.

#17. The proposition needs no further reiteration that the plaintiff is required to prove and establish his case on the basis of his pleadings and evidence. The duty of proving the contents of Exhibit-5 was on the plaintiff and the Courts below rightly held the plaintiff liable for proving his case and I do not find any error in the judgment of the Courts below on this aspect. From the 8 Patna High Court SA No.562 of 2011 (8) dt.26-02-2013 judgment of the Courts below it appears that there is concurrent finding of fact that the defendants did not execute the said Zarbeyana-nama (agreement for sale). From the judgment under challenge it appears that the learned First Appellate Court considered the evidence available on record and the finding cannot be said to be perverse.

#18. I am of the opinion that the present Second Appeal does not involve any substantial question of law which would warrant interference by this Court under Section 100 of the Code.

#19. This appeal, therefore, does not merit admission and is, accordingly, dismissed. Saif/- (Chakradhari Sharan Singh, J.)