RAMDAI DEVI Vs. MAHENDRA KUMAR SINHA

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 18.12.2003 passed by the Addl. District Judge II, Katihar in T.A. No. 1/98 by which he has set aside the judgment passed in T.S. No. 67/87 and has remanded the case to pass a fresh judgment after giving the plaintiff a fresh opportunity of comparing the signature of defendant no.1 on the deed of agreement (Ext. 1) with her admitted signature by another expert.

(2.) IT appears that the plaintiff (respondent no. 1 in the present appeal) had filed a title suit as against the defendant (appellant in the present appeal) for specific performance of contract. The case of the plaintiff is that Ramdai Devi (defendant no. 1) being the only heir of Maya Devi came in possession of the suit land and the house and then she entered into a contract for sale in respect of 2 kathas 10 dhurs alongwith the house standing over plot No,. 535 corresponding to M. S. Plot No. 52, ward No.17 of Katihar municipality with the plaintiff for total consideration of Rs. 15,000.00 and she took advance of Rs. 2,000.00 on 3.6.1307 and executed the Baibayana in favour of the plaintiff. As per agreement defendant no. 1 also agreed to receive the balance consideration of Rs. 13,000.00 by August, 1987 and to execute the sale deed. The possession of the suit premises was also given to the plaintiff. The plaintiff always expressed his wishes to pay the balance money of consideration but defendant no. 1 evaded to receive the same and to execute the sale deed. Hence, the above suit was filed by the plaintiff.

(3.) IT further appears from the judgment of T.S. No. 67/87 that since defendant no. 1 had denied the execution of Baibayana deed, hence, her admitted signature and the disputed signature were sent for examination of the expert. The opinion of the expert was received in Court by which it was reported that the admitted signature and the signature on the Baibayana deed did not tally. In other words they were made by two different persons. The plaintiff filed an objection petition but did not examine the expert. The learned lower court accordingly after discussing the evidence adduced on behalf of both the parties came to the finding that the Baibayana deed was not genuine, valid and not executed by defendant no. 1 in favour of the plaintiff. He accordingly dismissed the suit. Being aggrieved by the said judgment the plaintiff filed Title Appeal.