Baj Singh v. Kikkar Singh & Anr.

CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Sapan Dhir, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 13994-C of 2009 This application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure has been moved for leading additional evidence, in the regular second appeal. It has been averred in the application, that the co-defendant of the appellant i.e. his brother had connived with the defendants, therefore, he did not get the news item and the complaint placed on record exhibited in accordance with law. This act resulted in the learned trial Court holding that in case stand of the appellant, was correct then he should have filed a complaint against plaintiff and also taken some other action. It is also averred in the application, that the complaint and the news item placed on record, shows the mala fide and negligence of their counsel. The prayer is, therefore, made that the appellant may be permitted R.S.A. No. 4656 of 2009 2 to lead additional evidence to prove these documents by way of additional evidence. It is now well settled law, that additional evidence cannot be allowed to fill in lacuna. Even otherwise the documents, referred to above, are not such which are necessary for effective adjudication of the dispute raised. The learned Courts below have recorded a concurrent finding, that the appellant had executed agreement to sell, and had executed another agreement extending the time for execution of the conveyance deed. These findings coupled with the fact that brother of the appellant, who was also party to the agreement executed the sale deed qua his share in favour of the plaintiff / respondent. The evidence sought to be produced is also not such, which would be per se admissible. It is also admitted case that no action was taken on the complaint filed by the appellant. No ground for leading additional evidence is made out. C.M. is dismissed. R.S.A. No. 4656 of 2009 & C.M. No. 13993-C of 2009 This regular second appeal by the defendant / appellant is directed against the judgment and decree of the specific performance of agreement to sell. The plaintiff / respondent filed a suit to enforce an agreement to sell by pleading therein, that the appellant had executed an agreement to sell on 15.6.2000 and thereafter the period of execution of the conveyance deed was extended. The case of the plaintiff / respondent further was that he was always and still willing to perform his part of contract. The suit was contested by the defendant / appellant on the plea R.S.A. No. 4656 of 2009 3 that the agreement was forged and fabricated, and in fact no agreement was executed by the appellant /defendant or his brother who was co-defendant. The learned Courts below, on appreciation of evidence recorded a concurrent finding of fact, that the defendant / appellant had executed the agreement to sell as also the agreement extending the time on receipt of additional amount. The learned Courts also held, that the plaintiff / respondent was always and still willing to perform his part of contract. In view of the findings recorded suit was decreed. The learned counsel for the appellant contends that this appeal raises the following substantial questions of law :-

1. Whether the learned Courts below are correct to hold the fraudulently fabricated documents to be genuine documents?

2. Whether the impugned judgments and decrees dated 12.8.2008 and 27.8.2009 are liable to be set aside being illegal, arbitrary and are passed without any application of judicious mind?

3. Whether the learned Courts below are correct in misreading, misinterpreting the evidence adduced by the parties?

4. Whether the learned Courts below are right in not taking into consideration the complaint / news item, which were very much there on their records while deciding the matter? In support of the substantial questions of law, referred to above, R.S.A. No. 4656 of 2009 4 the learned counsel appearing on behalf of the appellant contended that the agreement was forged and fabricated, is proved from the fact, that the appellant being seller, had no reason to extent the time for execution of the sale deed when he was to get money by execution of the conveyance deed. It was further the contention of the learned counsel for the appellant, that his brother had connived with the plaintiff / respondent by executing the conveyance deed qua his share and by not getting the documents relied upon by the defendant / appellant to be exhibited. This act caused prejudice to the appellant. The learned counsel for the appellant also referred to the complaint and the news item, which was placed on record, though not exhibited, to contend, that the learned Courts below wrongly drew adverse inference against the appellant by observing, that as no action was taken by the defendant / appellant by moving the police or higher authorities, it could not be believed that the agreement to sell was forged and fabricated document. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The period for execution of sale deed was extended by the respondent on the request of the appellant / defendant on receipt of additional amount. The agreement was also proved. The concurrent finding of fact cannot be interfered in the regular second appeal on the basis of presumption, as contended by the learned counsel for the appellant, nor any presumption of fraud can be drawn on appreciation of the contentions raised by the learned counsel for the appellant. It is well settled law that fraud is not only to be pleaded but R.S.A. No. 4656 of 2009 5 also to be proved by leading cogent evidence. The finding of fact recorded by the learned Court is based on appreciation of evidence. Nothing was shown as to how the learned Courts below have misread or mis-interpreted the evidence. The application moved by appellant for additional evidence also stands dismissed. No fault can be found with the judgment and decree for ignoring the news item and complaint filed, as these documents were not proved, furthermore it was admitted case, that on complaint filed, no action was taken. Keeping in view the fact that brother of the appellant, who was also party to agreement to sell, had accepted the agreement and executed the conveyance deed qua his share. No ground is, therefore, made out to interfere with the concurrent finding of fact. The substantial questions of law, referred to above, do not arise for consideration, or in any case, deserve to be answered against the appellant.

17.2.2010 'sp' No merit. Dismissed. ( VINOD K. SHARMA ) JUDGE