HARI KISHAN Vs. GENDU BAI

JUDGEMENT

(1.) THE appellant has filed this appeal against the judgment and decree dated 29th of January, 1996 passed in C.S. No. 62 -A/92 whereby the suit for specific performance filed by the appellant has been dismissed. The original plaintiff and defendant both have died during the pendency of the appeal and are now represented by their legal representatives who have been brought on record.

(2.) THE brief facts leading to the filing of the present appeal are that the appellant allegedly entered into an agreement for sale on 25.4.1989 in respect of 0.41 decimal of land comprise of khasra No. 102/8, village Sodalpur, and 0.67 decimal of land of the same khasra situated on the opposite side of the canal belonging to respondent Gendu kunwar Bai. An amount of Rs. 2500/ - was allegedly paid by the appellant to the respondent Gendu Kunwar Bai on the date of execution of the agreement itself and Rs.20,000/ - was paid thereafter to her on 8.6.1989 and Rs.30,000/ -was paid on 9.5.1990 and the remaining amount was paid at the time of registration of the sale deed.

(3.) THE learned counsel appearing for the appellant submits that the Court below has failed to appreciate the oral and documentary evidence on record in its proper perspective. It is submitted that the Court below has misconstrued the evidence of DW 1 Gendu Kunwar Bai, DW 2 Shyamlal and PW 3 Ram Krishna Choudhary while recording the finding to the effect that the agreement to the sale was not executed by the deceased respondent Gendu Kunwar Bai and the signatures affixed thereon are forged. It is further submitted that a perusal of the evidence of PW 4 Champalal, PW 2 Lakhanlal and PW 3 Ram Krishna Choudhary clearly indicates and establish the fact that the agreement was drawn up on the instructions of the deceased respondent and the money was paid to her and that the deceased respondent and her husband i.e. DW 1 Gendu Kunwar Bai and DW -2 Shyamlal, have both admitted signing of the first page of the agreement. It is submitted that once they admit to the signing of the agreement, the findings recorded by the Court below become perverse and deserve to be set aside.