1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT Deshraj Vs. Amarsingh & Anr. (S.B. Civil Regular First Appeal No.316/2010) S.B. Civil Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908. Date of Order :- August 03, 2010 HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Madhav Mitra, for the appellant. The appellant has challenged the judgment and decree dated 24.05.2010, passed by the learned Additional District Judge (Fast Track), Kishangarh-Bas, Alwar, whereby the learned Judge has dismissed the suit filed by the plaintiff-appellant for specific performance of contract. The brief facts of the case are that the plaintiff- appellant filed a suit for specific performance of contract and for injunction against the respondents before the learned District Judge, Alwar. The said suit was subsequently transferred to the learned Additional District Judge (Fast Track), Kishangarh-Bas, Alwar. In the suit it was alleged that the land in dispute situated at Village Gadli Ki Dhani, Tehsil Mundawar, Alwar was agreed to be sold by the respondent No.1, Amarsingh, to the appellant for a consideration of Rs.2,45,000/-. On the same day, an 2 agreement to sell was executed by the respondent No.1, and it was also agreed between the parties that the respondent No.1 would get the land redeemed from the Bank as the same was mortgaged with the Bank. It was further stated that on being asked several times the respondent No.2, who happen to be the son of the respondent No.1, never agreed to execute the sale deed. In fact, on 22.07.2008, the respondent No.1 transferred the land in dispute to the respondent No.2. On 08.08.2008, the appellant gave a notice to the respondents, but nothing was done by them. Therefore, the appellant prayed in the suit that the respondents be directed not to transfer the land to any other person and the sale deed executed in favour of the respondent No.2 be declared null and void. The respondents filed their written statement and denied the allegations made in the plaint. In their written statement they claimed that the respondent No.1 neither executed the sale deed, nor accepted any consideration for the alleged agreement. On the basis of the pleadings of the parties, the learned trial court framed six issues including the issue of relief upon which both the parties led their oral and documentary evidence. However, vide order dated 24.05.2010, the trial court dismissed the suit. Hence, this appeal before this Court. 3 Mr. Madhav Mitra, the learned counsel for the appellant, has contended that the learned Judge has failed to appreciate the evidence in proper prospective. Moreover, the learned Judge has not given any cogent reasons for dismissing the suit. Heard the learned counsel for the appellant and perused the impugned order. A bare perusal of the impugned order clearly reveals that in para 17 of the impugned order, the learned Judge has meticulously discussed the evidence. According to the learned Judge, although Rajveer and Raghuveer were witnesses to the signing of the agreement to sell, neither of these two persons have been produced as witnesses before the trial court. Only Ramnath (PW-2) and Netram (PW-7) have been produced as witnesses. However, their presence at the time of signing of the agreement has not been corroborated by the Deed Writer and by the Public Notary. Since both the Deed Writer and the Public Notary are independent witnesses, since they do not state that Ramnath and Netram were present, the learned Judge was justified in concluding that Ramnath and Netram are not real witnesses and they have been asked to sign the document subsequently. The learned 4 Judge is also justified in concluding that the material witnesses Rajveer and Raghuveer have been intentionally left out by the appellant. The appellant has not even tried to have them summoned as court witnesses. Since the appellant had left out the material witnesses, an adverse inference can be drawn against him. Lastly, since the appellant has failed to establish the fact that the agreement of sell was entered between him and the defendants, the learned Judge was certainly justified in holding that the appellant has failed to prove his case. Hence, the dismissal of the suit is absolutely justified only on this ground alone. In this view of the matter, the appeal is devoid of any merit. It is, hereby, dismissed. Consequently, the stay petition is also dismissed. (R.S.CHAUHAN)J. Manoj Solanki-