MEWA LAL Vs. SHYAM BIHARI

JUDGEMENT

(1.) Present regular second appeal, filed by the defendant, against concurrent findings of facts having been recorded by both the Courts below in a suit for possession by way of specific performance of agreement dated 6.10.1998. The suit was decreed by the Court of first instance and the Court of first appeal dismissed the appeal and as such, present regular second appeal before this Court. For the sake of convenience, parties are being referred to as per their status before the Court of first instance.

(2.) Relevant facts of the case that plaintiff filed a suit for possession by way of specific performance of agreement of sale dated 6.10.1998 with respect to the suit property. Earnest money of Rs. 50,000/- was paid and balance amount of Rs. 10,000/- was to be paid at the time of execution of the sale deed. Defendant failed to perform his part of the agreement despite notice and as such necessity of the suit. Defendant contested the suit inter alia taking the plea that this Court has no territorial jurisdiction as the defendant is a resident of Partapgarh, Uttar Pradesh and the alleged agreement was also executed at Partapgarh. Defendant denied the execution of agreement and prayed that suit be dismissed.

(3.) The Court of first instance settled the issues and the parties were asked to lead their respective evidence. The Court of first instance, after appreciating the oral and documentary evidence, returned the findings that plaintiff has been able to prove the due execution of the agreement and decreed the suit for possession by way of specific performance of agreement dated 6.10.1998. Defendant preferred an appeal before the Court of first appeal, which was dismissed and hence, present regular second appeal before this Court. Learned counsel for the appellant submitted that the Courts below have not considered the correct facts of the case. As per learned counsel for the appellant, originally suit for permanent injunction was filed and later on the same was converted into suit for possession by way of specific performance of the agreement is not maintainable. Learned counsel for the appellant also submitted that even expert had given his report that the agreement does not bear signatures of the defendant and the defendant has also denied his signatures on the document. An application for additional evidence was moved before the First Appellate Court and the same was dismissed. More so, the site was allotted for resettlement and the same could not be transferred. The oral evidence led by the plaintiff is not believable because the sole witness Ramesh Chander Tiwari was not sure whether agreement was of two pages or three pages. The witness examined by the plaintiff was not in a position to tell the denomination of currency and both the Courts below completely ignored this fact while returning the findings and prayed that the said finding, having been recorded by the Courts below, be set aside and appeal be accepted and suit of the plaintiff be dismissed.