SAYED MOINUDDIN Vs. MEHABOOB ALAM

JUDGEMENT

(1.) This is the appeal preferred by the appellant/plaintiff being aggrieved by the judgment and decree dated 17.8.2011 passed in Regular Appeal No. 112/2009 on the file of Fast Track Court-I, Raichur confirming the judgment and decree in dismissing the suit in suit for specific performance of contract by the Trial Court by its judgment and decree dated 6.10.2009 by Principal Civil Judge (Sr.Dn) at Raichur in O.S. No. 60/2005. The appellant challenging the legality and correctness of the judgment and decree passed by the Courts below on the grounds as mentioned in the appeal memorandum.

(2.) Heard the learned counsel appearing for the appellant/plaintiff and also the learned counsel for the Respondents/defendants on admission.

(3.) Learned counsel appearing for the appellant/plaintiff during the course of arguments made submission that though the deceased father of the Respondent No. 1 originally entered into an agreement of sale in the year 1993 and executed Ex.P-1 for the sale of the suit schedule property for total consideration of Rs. 60,000.00 and at that time received consideration of Rs. 20,000.00, but in the meanwhile i.e., in the year 1994 the father of the Respondent No. 1 expired. It is also further contention of the learned counsel that when the father of the Respondent No. 1 was suffering from ailment, the Respondent No. 1 entered into fresh agreement of sale and again he borrowed Rs. 20,000.00 for the treatment of his father. It is also submitted that subsequently the Respondent No. 1 also received Rs. 10,000.00 and executed fresh agreement of sale under Ex.P-3 dated 11.2.2002. The counsel also made submission that in the subsequent agreement of sale also there is mention about the original agreement of sale entered into between deceased father and Respondent No. 1. The counsel submitted that in support of the plaintiffs case plaintiff examined witnesses on his side before the Trial Court and all the witnesses i.e., PWs 2 to 6 who consistently deposed in their oral evidence that in their presence the father of the Respondent No. 1 executed agreement of sale under Ex.P-1. Hence counsel submitted that looking to the oral evidence of the witnesses on the side of the plaintiff, so also the evidence of the plaintiff before the Trial Court they have established due execution of agreement of sale Ex.P-1. It is also his contention even subsequent to agreements under Ex.P-2 and P-3 were also established by satisfactory and cogent evidence of the witnesses. Hence, he submitted that in spite of such evidence being placed before the Court, the Trial Court only on the ground that since the defendants have disputed the signatures on the agreement of sale dismissed the suit by wrongly reading the evidence on record. Learned counsel submitted that it is observed by the Trial Court that the plaintiff has not taken any steps in getting the agreement of sale referred to handwriting expert to get the opinion in the matter. In this connection the learned counsel made submission that under section 73 of the Evidence Act, the Trial Court itself vested with such powers to make the comparison of the signatures in order to come 10 the conclusion whether the said signature on the agreement of sale Ex.P-1 with the admitted signatures of the deceased father of the Respondent No. 1 were tallying with each other or not. The Trial Court has not at all made such exercise for the comparison of the signatures and even the Trial Court gone to the extent of observing that the signatures on the agreement of sale were not at all proved by the plaintiff. Hence, the Trial Court dismissed the suit. Learned counsel further made the submission that in this appeal the appellants have filed the application under Order 26, Rule 9 of Civil Procedure Code R/w Sec. 45 of the Evidence Act and also under section 151 of CPC. Hence the learned counsel submitted that in view of these things, the matter requires consideration in this appeal as substantial question of law involved in the above appeal.