SYED ALI Vs. RAZIABI

JUDGEMENT

(1.) This matter is listed for admission. Heard the learned counsel for the appellant. This second appeal is filed against the concurrent finding.

(2.) The factual matrix of case of the plaintiff before the Trial Court that the defendants along with Dasthagir Sab have agreed to sell the undivided interest in the suit schedule property in favour of the plaintiff for a sale consideration of Rs.72,000.00 and have entered into an agreement of sale on 30/7/2008 and they have received the entire sale consideration on the very same day. But contention of the plaintiff that defendants have failed to execute the registered sale deed as agreed by them and he was always ready and willing to perform his part of contract. It is the case of the defendants that the plaintiff has forged the LTM of deceased Dasthagir Sab and concocted alleged agreement of sale. It is the contention of the defendants that deceased Dasthagiri Sab had no exclusive right to sell the scheduled property in favour of the plaintiff and hence, not entitled for the relief of specific performance. The Trial Court also having considered the alternative prayer, framed the issue that whether plaintiff is entitled to refund of advance amount of Rs.90,000.00.

(3.) The Trial Court having considered both oral and documentary evidence, comes to the conclusion that Issue No.1 to 3 are not proved and Issue No.4 is proved that the signature of the Dasthagir Sab was forged and answered other issues as negative, particularly in paragraph No.12, discussed with regard to the thumb impression of the Dasthagir Sab and also taken note of in paragraph No.13, considering the evidence of P.W.2 and P.W.3, who are the signatories to Ex.P.3. The P.W.2 in his cross-examination deposed that Ex.P.3 was executed near Taluk office before one Prasanna Advocate, a person who is on deathbed cannot be expected to come to Taluk office from Birur. Further, the P.W.1 admitted that said Dasthagir Sab was suffering from paralysis attack. The P.W.3 in his cross- examination states that he doesn't know the date of execution of the agreement of sale. By scrutinizing the entire evidence of P.W.1 to P.W.3 and documentary evidence, it is a clear case that on 30/7/2008, Dasthagir Sab died and on the very same day, he had executed agreement of sale by putting a thumb impression is doubtful and hence, not accepted the case of the plaintiff. Even taken note of the matter was referred to the expert with regard to Ex.P.3 who had submitted his report. The expert of the truth lab submitted his report opining that the left thumb impression which is alleged to be the thumb impression of Dasthagir Sab on Ex.P.3 are superimposed impressions and hence, they could not be compare with admitted thumb impression marked in Ex.P.1. Therefore, as per the opinion of the expert, the questioned thumb impression was superimposed impression which are normally put by the pressure of thumb. Hence, it is probable that the said thumb impressions which are uncertain are taken on Ex.P.3 by force. Hence, the expert could not give his opinion on the said thumb impression. Therefore, plaintiff failed to prove the agreement. There is a serious doubt regarding execution of said agreement of sale by the deceased Dasthgir Sab and Ex.D.1 revealed that on the very same day of agreement of sale, Dasthagir Sab died. Under all these doubtful circumstances, specific performance of contract cannot be granted and the very document which is clouded with suspicious circumstances and hence, not granted the relief of specific performance.