SHAMJIBHAI SHIVABHAI JADAV Vs. SADGUNABEN KANUBHAI JANI

JUDGEMENT

(1.) THIS First Appeal has been filed by the appellant- original plaintiff being aggrieved and dissatisfied with the judgment and decree dated 7-10-1998 passed by the learned City Civil Judge, Ahmedabad, in Civil Suit No.2286 of 1990 whereby the suit of the plaintiff was dismissed with costs of Rs.1,000/-. Civil Application No.12130 of 1998 has been filed for leading additional evidence.

(2.) FACTS in short are that the respondent-original defendant, who is the mother-in-law of the plaintiff and owner of premises bearing Survey No.182 Census No.203 situated in Bhavanpura Ward, agreed to sell second floor of the premises admeasuring 66 sq.yards to the plaintiff for Rs.82,000/- by executing a registered agreement to sell on 4-8-1987 on payment of earnest money of Rs.17,500/-. On 18-2- 1988, Rs.52,500/- were paid by the plaintiff to the defendant towards sale price. Though the plaintiff was always ready and willing to pay remaining amount of Rs.12,000/- to the defendant to get the conveyance deed executed, the defendant was not executing the same nor refunding the amount of earnest money. Therefore, a suit being Civil Suit No.2286 of 1990 was filed by the plaintiff seeking specific performance of the agreement to sell. Defendant resisted the suit by filing written statement at Ex.26 contending inter alia that the suit was filed with mala fide intention to grab her property. It was further contended that when the defendant refused to give dowry to the plaintiff when demanded from her daughter, the plaintiff represented her to execute an agreement to sell in favour of the plaintiff for the second floor of her building to be produced so that he can get housing loan from the Government. It was further contended that looking to the welfare of her daughter, the defendant executed the agreement to sell in favour of her son-in-law in respect of second floor of the building without any consideration and also signed in some paper as demanded by the plaintiff. It is further contended that using this paper, plaintiff executed agreement to sell and obtained loan from the Government and purchased property in Mahadevnagar, Khokhra Mahemdavad. It was further contended that thereafter, when the defendant did not agree to the plaintiff's continued demand for money for purchase of TV, refrigerator, scooter etc., the plaintiff used this agreement to sell and filed the present false suit. The trial court, after framing issues and after hearing the learned advocates appearing for the respective parties, dismissed the suit, which is giving rise to present First Appeal.

(3.) LEARNED advocate, Mr.M.B.Gandhi, submitted that the judgment and decree is contrary to the facts and law. He further submitted that the trial court has not decided the issues properly. He further submitted that the trial court has not appreciated the oral evidence of plaintiff at Ex.35 and also attesting witness to agreement to sell, Shri Maheshbhai Darji at Ex.39. He further submitted that although wife of the plaintiff was not examined by the defendant nor was there a single document regarding the demand of dowry proved by the defendant, the trial court erred in believing that there was a demand of dowry by the plaintiff. He further submitted that there was an admission on the part of the defendant herself that an agreement to sell was executed by receiving an amount of Rs.17,500/- by the defendant, the trial court has failed to consider the same. The trial court has also failed to consider that a sum of Rs.52,500/- was paid vide receipt at Ex.37 bearing the signature allegedly given by the defendant on plain paper which contention, according to him, was taken for the first time and hence, cannot be accepted. According to him, when there is a documentary evidence, oral evidence cannot be considered as per Secs.91 and 92 of the Indian Evidence Act. It is further submitted that affidavit of the advocate of the trial court is also filed to the effect that these documents were not placed on record at the relevant time and, therefore, these documents are very necessary which goes to the root of the case and hence, if the Civil Application is not allowed, great prejudice will be caused to the appellant It was therefore urged that that the appeal and Civil Application be allowed.