HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.616 of 1999 Dated 15.04. 2011 Between: P.Minnullah. …Appellant. And: C.Venkatarami Reddy and another. …Respondents. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.616 of 1999 JUDGMENT: The unsuccessful plaintiff filed a suit for specific performance which was dismissed by both the Courts below. The facts in brief are that the plaintiff claims that the 1st defendant entered into an agreement of sale with regard to Ac.5.00 of land and 2nd defendant also entered into an agreement of sale with regard to Ac.2.1/2 cents of land. According to the plaintiff, the consideration fixed at the rate of Rs.4,000/- per acre was paid by the plaintiff from time to time and last on 16.1.1989, the entire amount was paid but at the request of the defendants, plaintiff has not demanded earlier for execution and registration of sale deed. It is also alleged that though the plaintiff was put in possession and enjoyment, he was later dispossessed by the defendants. Thereupon, he gave Ex.A.8 notices dated 14.5.1992 and filed the present suit on 27.6.1992. Plaintiff examined himself as P.W.1 and examined scribe of Ex.A.1 agreement of sale as P.W.2 and P.W.3 the official who measures of land as well as P.Ws.4 and 5 cultivators. Plaintiff relied upon the endorsement regarding part payment which was separately marked as Exs.A.2 and A.3 and claimed the relief on the basis of full payment of consideration as on 16.7.1989. On the part of the defendants, though written statement was filed, they did not examine either of the defendants but examined one D.W.1 and D.W.2, 3rd parties whose evidence was not accepted by the Courts below. Plaintiff also relied upon the letters of defendant No.2 marked as Exs.A.4 and A.5 to show that at the specific request of D.2, he did not seek to file the suit earlier. Both the Courts below dismissed the suit holding that plaintiff has not come to the Court immediately when the cause of action arose especially after paying consideration on 16-7-1989. The delay in approaching the Court was found fatal by the appellate Court also. The appellate Court also found that Ex.A.1 agreement is proved by plaintiff and in the absence of defendants not offering to go into the witness box, the signature of the defendants on Ex.A.1 was held proved. However, appellate Court felt that though execution of Ex.A.1 agreement is proved, contents thereof do not follow and consequently, denied the relief of specific performance of the plaintiff. Heard Sri B.Narasimha Sharma, learned counsel for the appellant who has made various submissions on merits including the fact that the denial of specific relief in spite of payment of full consideration and secondly, that the plaintiff being in possession after payment of consideration, had no reason to move the Court for specific relief and cause of action arose only when he was dispossessed. He also relied upon the decision of the Supreme Court in reported in VIDHYADHAR v. MANKIKRAO ([1]) for the proposition that party which holds himself from entering a witness box is liable for drawing adverse interference. I had heard the learned counsel for the appellant on 23.3.2011 and since then, the appeal was listed awaiting appearance of the respondents for hearing on their part. Though the appeal was listed and this Court waited for respondents to make submissions, nobody appeared on behalf of the respondents either on 23.3.2011, 11.4.2011 and 13.4.2011 as well as on this day. The appeal is therefore being disposed of on merits. This appeal was admitted on 7.9.1999 on the following substantial questions of law: 1. Whether the appellate Court as a fact finding Court is not in error in observing that the execution of the document is proved, but not its content, without considering the evidence of plaintiff witnesses as to the contents of the document. 2. Whether the appellate Court has not committed any error in law in dismissing the suit on the ground of delay without giving a clear finding as to how the suit was barred by time with reference to the contents of the documents as to the starting point of limitation. The findings of the lower appellate Court show that it has accepted in paragraph 7 that the plaintiff paid entire consideration by 16.7.1989. However, the lower appellate Court denied the relief for specific performance on the ground that it is equitable relief and plaintiff having not come to the Court in spite of payment, he is not entitled. The other findings of the lower appellate Court is based on the latches on the part of the plaintiff not seeking specific performance even within three years of payment. Both the said conclusions of the lower appellate Court are apparently not sustainable prima facie in view of the fact that the plaintiff remained in possession till he was disposed just before the suit. The plaintiff also relied upon letters Exs.A.4 and A.5 written by D.2 and the aforesaid evidence was not controverted by the defendants and therefore, it cannot be said that the said two letters coupled with the allegation that the plaintiff was in possession and had paid the entire consideration, ought to have been taken into consideration. But though the lower appellate Court has rejected the evidence of D.Ws.2 and 3 coupled with failure of defendants to appear as witness and has rightly commented upon by drawing adverse inference against them, I am also unable to accept the view of the lower appellate Court that though the execution of Ex.A.1 is proved by the plaintiff that the contents thereof remained unproved. As early as in 1957, this Court in ALAPATI SIVARAMAKRISHNAYYA v. ALAPATI KASIVISWANADHAM AND OTHERS ([2]) has held that if a document is proved to be executed it prima facie proves that the said execution is in token of acceptance of the contents of the document and normally it has to be presumed under Section 114 of the Evidence Act that a person puts his signature in a document in lieu of his execution and acceptance. The contents of Ex.A.1 having remained uncontroverted by the defendants, by their non-examination, the findings of the lower appellate Court as above, are clearly not sustainable. It is however, essential to note that while dealing with the suit for specific performance, the lower appellate Court as a final Court of fact, was required to go into the questions whether the plaintiff has established his readiness and willingness at all times and whether the discretion under Section 20 of the Specific Relief Act deserves to be exercised in favour of the plaintiff especially in view of the finding of the lower appellate Court that Ex.A.1 sale agreement is proved and adverse interference is required to be drawn against the defendants on account of their non- examination. Both the said issues having not been kept in mind by the lower Court, I am inclined to set aside the impugned judgment by answering the substantial question of law No.1 in paragraph 9 in favour of the appellant. Therefore, the 1st question is answered accordingly. Therefore, the lower appellate Court shall frame the following additional issues for consideration. 1. Whether the plaintiff has established his readiness and willingness in seeking specific relief? 2. Whether the discretion of under Section 20 of the Specific Relief Act deserves to be exercised in favour of the plaintiff. The lower appellate Court also shall, by giving notice to both sides, determine the appeal afresh on merits as well as on the question indicated above and dispose of the appeal in accordance with law within three months from the date of receipt of a copy of this order. Costs of the Second Appeal shall abide the result of decision of the lower appellate Court in the appeal remitted hereunder. The appeal is allowed accordingly. No costs. _____________________________________ JUSTICE VILAS V. AFZULPURKAR Dated 15.4. 2011 Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.616 of 1999 Dated 15.04. 2011 [1] AIR 1999 SC 1441 [2] AIR 1957 A.P. 584