IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.183 of 2009 Nand Kishore Sah Versus Kailash Singh ---------------------------------- 6 25-10-2011 Heard the learned counsel appearing on behalf of the appellant in support of this appeal. The plaintiff is the appellant in this appeal against the judgment and decree dismissing his appeal. The suit has been filed for specific performance of contract dated 3-8-1993 by the plaintiff with the averment in the plaint that the plaintiff had executed two sale deeds in favour of the defendant and the defendant had executed a registered deed of reconveyance on 20- 4-1989 in favour of the plaintiff promising to execute the reconveyance deed if the plaintiff would pay the consideration amount within ten years. It is also the case of the plaintiff that the defendant avoided to execute the reconveyance deed even after the plaintiff became ready to pay the amount and ultimately with the intervention of the well-wishers an agreement for sale(Mahadanama) was executed by the defendant on 3-8-1993 in favour of the plaintiff after accepting an amount of Rs.1500/- wherein it was agreed that the sale deed would be executed by 20- 4-1999. However, the defendant again started avoiding the execution of the sale deed even after accepting an amount of Rs.3000/- from the plaintiff on 25-3-2001 and acknowledging the receipt of the said amount in a letter sent to the plaintiff promising to execute the required sale deed. Ultimately, in view of the manifest declination of the defendant to execute the sale deed the 2 suit has been filed for enforcing the agreement for sale dated 3-8- 93. The defendant appeared and has resisted the claim of the plaintiff on the ground that the plaintiff had failed to pay the consideration money by 20-4-1999 as agreed in the reconveyance deed and further challenged the agreement for sale dated 3-8-1993 as forged and fabricated document. The trial court after considering the evidence, ,submissions and pleadings of the parties, has come to the conclusion that the agreement for sale dated 3-8-1993(Ext.1) and the alleged acknowledgement receipt(Ext.3) are forged and fabricated documents and dismissed the suit. In appeal, the appellate court below reappraised the evidence of the parties in view of the rival submissions and agreed with the findings of fact that the agreement for sale(Ext.1) and the acknowledgement receipt(Ext.3) are forged and fabricated document. The learned counsel appearing on behalf of the appellant has submitted that the finding by both the courts below on the validity of the agreement for sale is not sustainable in view of the fact that both the courts below have misappreciated the evidence on record and have also ignored the deposition of the defendant’s witness(D.W.1), who has identified the signature of the defendant Kailash Singh on the agreement for sale. It has been further urged that both the courts below erred in law in holding that the suit was barred by limitation. The learned counsel has also 3 submitted that there are sufficient evidence on the record which will establish that the agreement for sale(Ext.1) and the acknowledgement receipt(Ext.3) are genuine documents. In the last, a prayer has been made by the learned counsel to call for the lower court records for the purpose of examining the signature of the defendant on the agreement for sale and the letter containing the acknowledgement of the payment of consideration amount. The perusal of the impugned judgments of both the courts below shows that the evidence of the parties has been considered in detail and thereafter the findings of fact have been arrived. The appellate court below has also considered the submission regarding the deposition of D.W.1, Rajesh Singh regarding the identification of the signature of Kailash Singh on Ext.3, but after considering the said deposition the appellate court has refused to rely on the same in view of the provision of section 47 of the Evidence Act because nothing was brought from the deposition that he was acquainted with the handwriting of the defendant. It has been found by both the courts below that after the failure of the plaintiff to establish the validity of the agreement for sale(Mahadanama) and the letter of acknowledgement, the limitation for seeking the relief for specific performance of contract would run from 20-4-1999 in view of Ext.2(the reconveyance deed). On the basis of this finding both the courts below have rightly concluded that the suit, which has been filed on 11-10-2002 was barred by limitation. Nothing could be established during the course of submission that the findings of 4 fact recorded by both the courts below are perverse and as such both the courts’ findings of fact are binding in second appeal. For the foregoing reasons, no substantial question of law arises for consideration in this appeal. This appeal is, accordingly, dismissed. roy ( V. Nath, J.)