RSA 96/2011 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY Being aggrieved by the judgment and order dated 11.10.2010, passed by the learne d Civil Judge, Bongaigaon in Title Appeal No. 10/2010, dismissing the suit of th e present appellant, he seeks redress under section 100 of the Code of Civil Pro cedure (for short hereafter referred to as the Code). I have heard Mr. AR Sikdar, learned counsel for the appellant and Ms. R Choudhur y, learned counsel for the respondents/defendants. The pleaded assertions of the parties in brief would have to be noted to project the rival stands. The appellant/plaintiff pleaded that on the basis of a writte n agreement executed on 05.08.1999, the respondent/defendant No. 1 to 3 agreed t o sell a plot of land measuring 0 bigha 2 kathas and 10 lechas described in the Schedule to him at a price of Rs. 19,001/-. On the date of the execution of the agreement, as advance payment, the plaintiff/appellant paid an amount of Rs. 4,0 00/- with the understanding that the balance amount would be paid by him within or before the month of Aghon (local) in the year 1999 and that then, the respond ent/defendant Nos. 1 to 3 would execute a sale deed to be registered eventually. According to the appellant/plaintiff, on the basis of the said agreement, the r espondent/defendant Nos. 1 to 3 also handed over to him, the title deeds and oth er documents relating to the suit land on the very same date. It was, thereafter , that the respondent/defendant Nos. 1 to 3 approached him with a request for fu rther payment of Rs.12,000/- so as to meet the expenses for the treatment of the ir father. This amount, according to the appellant/plaintiff, was paid to Abdus Samad (respondent/defendant No. 3) on 28.08.1999, the receipt whereof, he acknow ledged by signing an endorsement on the body of the agreement dated 05.08.1999. Thereafter, on 07.09.1999, the appellant/plaintiff, when offered the balance amo unt to the respondent/defendant No. 1 to 3, they refused to execute the sale dee d by receiving the same. The appellant/plaintiff having learnt that the responde nt/defendant No. 1 to 3 have contrived to dispose of the suit land in favour of the respondent/defendant No. 4 at a higher price, he, after unsuccessfully getti ng an Advocate’s notice served on them, instituted the suit praying for specific performance of the agreement dated 05.08.1999. The respondent/defendant Nos. 1 to 3 in their written statement, while admitting the execution of the agreement dated 05.08.1999, have denied the receipt of Rs. 12,000/- by the respondent/defendant Nos. 3 as alleged by the appellant/plainti ff. According to them, after the initial payment of Rs. 4,000/-, they on two occ asions received Rs. 1,000/- and Rs. 200/- respectively, and that in all, an amou nt of Rs. 5,200/- had been parted with by the appellant/plaintiff towards the sa le transaction. They alleged that the appellant/plaintiff, his son and his son i n law had, thereafter, approached the respondent/defendant Nos. 3 and on a misre presentation, had obtained his thumb impression on a sheet of paper. While denyi ng the payment of Rs. 12,000/- by the appellant/plaintiff to the respondent/defe ndant Nos. 3, Abdus Samad, the respondents/defendants questioned the readiness a nd willingness of the appellant/plaintiff to complete the sale transaction and, therefore, sought dismissal of the suit. After the issues were framed on the pleadings, the parties adduced oral and docu mentary evidence. The appellant/plaintiff proved Ext. 1 though his affidavit-evi dence, but did not either prove or exhibit any signature/thumb impression thereo n. The witness for the respondent/defendant Nos. 1 to 3, though admitted the exe cution of the said document, denied the payment of Rs. 12,000/- on 28.08.1999 as deposed by the appellant/plaintiff as PW 1. He reiterated that a total amount o f Rs. 5,200/- had been received by the respondent/defendant Nos. 1 to 3 from the appellant/plaintiff. The writer of the document i.e. Ext. 1 examined as PW 3 admitted to have written the agreement and also proved his signatures thereon. He also proved the thumb impressions of the respondent/defendant Nos. 1 to 3 put in his presence as Ext. 1 (3), Ext. 1 (4) and Ext. 1 (5). In cross-examination, this witness expressed i gnorance with regard to the line after receiving the sum of Rs. 12,000/- put th umb impression in Ext. 1 on 28.08.1999 and denied that the same was either writ ten or the thumb impression appearing thereunder had been put in his presence. P W 2, Habibar Rahman, one of the attesting witnesses of Ext. 1 also expressed ign orance about the payment of money by the appellant to the respondent/defendant N os. 1 to 3 after the execution of the agreement. In this regard, the appellant/p laintiff examined himself as PW 1. He admitted in his cross-examination that at all relevant times, the agreement Ext. 1 had been in his custody. Though, he tes tified that an amount of Rs. 12,000/- had been paid to Abdus Samad, respondent/d efendant No. 3 in presence of one Abdul Khalaque, the said witness was not produ ced in support of this fact. The learned trial Court on a consideration of the pleadings of the parties and t he evidence on record, decreed the suit. In appeal, the learned Court below, on a reappraisal of the same has reversed this decision. Mr. Sikdar, has argued that it being evident on the face of the record that the parties had entered into an agreement for the sale of the suit land and that the appellant/plaintiff had made payment of a total amount of Rs. 16,000/- and was ready and willing to pay the balance of Rs. 3,001/-, the learned Lower Appellate Court had grossly erred in denying him the decree for specific performance of c ontract. In support of his assertion, the learned counsel has taken this Court i n details to the evidence of the witnesses. According to him, the respondents/de fendants No. 1 to 3 having admitted the execution of the agreement, their plea o f not having received the amount of Rs. 12,000/- on 28.08.1999 is clearly an aft erthought for unlawful gain. Ms. Choudhury, on the other hand, has urged that not only the respondent/defenda nt Nos. 1 to 3 have consistently denied the receipt of the additional amount of Rs. 12,000/- from the appellant/plaintiff, the latter having failed to prove thi s fact in accordance with law, no interference with the judgment and order impug ned herein is warranted. I have carefully weighed the submissions made by the learned counsel for the par ties. The materials on record presently available have also been scrutinized. Th at the parties had entered into an agreement on 05.08.1999 for the sale of the s uit land by the appellant/plaintiff to the respondent/defendant Nos. 1 to 3 at a price of Rs. 19001/- is an admitted fact. Payment of advance of Rs.4,000/- on t he very same date by the appellant/plaintiff to the respondents/defendant Nos. 1 to 3 is also not disputed. The controversy hinges around the payment of Rs.12,0 00/- said to have made by the appellant/plaintiff to the respondent/defendant No s. 1 to 3. Whereas, it is the specific case of the appellant/plaintiff that his amount had been paid by him to the respondent No. 3, as a testimony whereof, the latter had signed an endorsement on the original agreement dated 05.08.1999, th e respondent/defendant Nos. 1 to 3 have vehemently denied the correctness of thi s plea. As the summary of the evidence recited hereinabove, would disclose, exce pt the appellant/plaintiff, who had examined himself as PW 1, none has supported his case on this aspect of the debate. This witness in his cross examination ha s admitted that the agreement had remained in his custody from the date of the e xecution till the production thereof in the suit. The endorsement bearing thereo n to demonstrate the payment of Rs. 12,000/- on 28.08.1999 by him to the respond ent/defendant No. 3, is in his hand. Mr. Sikdar, when queried by this Court, has, on instructions submitted that the respondent/defendant No. 3 endorsed the receipt of the amount of Rs. 12,000/- by putting his signature on the original agreement. The affidavit-evidence of PW 1 i.e. the appellant/plaintiff as well as cross-examination does not disclose tha t this signature of the respondent/defendant No. 3 had been either identified by him (appellant/plaintiff) or proved in accordance with law. The writer of the a greement denied in categorical terms that the writing thereon testifying the rec eipt of the amount of Rs. 12,000/- by the respondent/defendant No. 3 on 28.08.19 99 was neither by him nor was in his presence. None of the other witnesses also did support the appellant/plaintiff in this regard. In the above view of the matter, the conclusion reached by the learned Lower App ellate Court, by no means, can be denounced to be against the weight of the evid ence of record. The view taken by the learned Lower Appellate Court is a plausib le one and this Court, in the exercise of its appellate jurisdiction under secti on 100 of the Code, is not inclined to interfere. The appeal therefore lacks in merit and is dismissed. No costs.