IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.320 of 2009 1.Narain Prasad Mehta, @ Narain Prasad Mahta, S/o Late Raja Lal Mehta @ Late Raja Lal Mahta. R/o Mohalla-Mirzpur (Darbhanga), P.S.-Town (Darbhanga) Anchal-Darbhanga, District-Darbhanga. --(Defendant-Ist Set-Appellant)-Appellant. Versus 1.Madan Mohan Thakur, S/o Ugranath Thakur, R/o Mohalla-Mirzpur(Darbhanga),P.S.-Town(Darbhanga) Anchal-Darbhanga, District-Darbhanga. - (Plaintiff-Respondent –Ist Set)Respondent. 2.Anjani Thakur, S/o Indra Narain Thakur. R/o Mohalla- Rahamganj, P.S.-Laheriasarai, District- Darbhanga. 3. Umesh Prasad Verma, S/o Shiv Sahay Prasad Verma, R/o Mohalla- Kathalwari, P.S.-Town(Darbhanga)District- Darbhanga. 4.Smt. Rani Verma, D/o Bachcha Prasad, R/o Mohalla- Dhipaliaganj(Darbhanga)P.S.Town-(Darbhanga)District- Darbhanga). -(Defendants 2nd Party-Respondent -2nd Set. ----------- 10. 08.12.2011 Heard the learned counsel appearing on behalf of the appellant as well as plaintiff-respondents. 1. This appeal has been filed against the judgment and decree dated 06.04.2009 passed by Additional District Judge F.T.C., Darbhanga in T.A.No. 05/97 affirming the 2 judgment and decree dated 28.1.1996 passed by Munsif I, Darbhanga in T.S.No. 104/89. 2. The defendant is the appellant in this appeal which has arisen out of a suit for specific performance of contract filed by the plaintiff for enforcing the agreement for sale dated 25.08.1986 executed by the defendantno.1 in favour of the plaintiff with regard to the suit property described in Schedule I of the plaint and for further declaration that the sale deeds dated 29.08.1989 in favour of the defendant 2nd Set by the defendant no.1 is not binding upon the plaintiff. The plaintiff has also made prayer for recovery of possession in case he is found not in possession over the suit property. The defendants have resisted the claim of the plaintiff on the ground that the agreement for sale (Mahadnama) propounded by the plaintiff is not valid and genuine document and further that the sale deeds for the suit property in favour of the defendant 2nd Set have been executed on the basis of an earlier agreement for sale dated 12.02.1985 and the purchasers have been put in possession over the suit property. The defendants 2nd Set (subsequent purchasers) by filing their separate written statement, inter alia, has 3 also asserted that they are bona fide purchasers of the entire suit land for value and without any notice of the agreement for sale(Mahadnama) dated 25.08.1986 of the plaintiff. 3. The specific issue regarding the validity of the Mahadnama dated 25.08.1986 of the plaintiff and Mahadnama dated 12.02.1985 of the Defendants 2nd Set have been framed in the suit and both the courts below after analysing the evidence on record and rival pleadings of the parties have reached to the concurrent finding that the Mahadnama dated 25.08.1986 of the plaintiff is a valid and legally enforceable document and the Mahadnama dated 12.02.1985 relied upon by the defendants is an ante dated document fabricated for the purpose to defeat the claim of the plaintiff. On consideration of the evidence on record it has also been found by both the courts that the Defendants 2nd Set (subsequent purchasers) had the notice of the Mahadnama standing in favour of the plaintiff and the Defendants 2nd Set are not bona fide purchasers for value of the suit land. In view of the aforesaid findings of fact the suit filed by the plaintiff has been decreed and the appeal by the Defendants 1st Set (vendor) and the cross 4 objection filed by the Defendants 2nd Set (subsequent purchasers) have been dismissed. This second appeal has been filed by the Defendants 1st Set (vendors) alone and no appeal has been filed by the subsequent purchasers who were Defendants 2nd Set in the suit. 4. The learned counsel appearing on behalf of the appellant has submitted that both the courts below have ignored the provisions of Section 20 and Section 22 of the Specific Relief Act and the principles enshrined therein. It has been urged that in the facts and circumstances of the case instead of passing a decree granting the relief for specific performance of the contract, the plaintiff should have been granted the relief for the refund of the earnest money paid by him. It has been also contended by the learned counsel that both the courts below have wrongly placed the onus upon the defendants to establish that the agreement for sale in favour of the plaintiff has not been executed by the defendant no.1. The learned counsel has also assailed the judgment of the appellate court below by submitting that the same is not in accordance with the provision of Order 41 Rule 31 C.P.C. and the appellate court has failed to record independent 5 findings of fact. 5. The perusal of the judgments of both the courts below shows that the evidence of the parties have been considered in detail in view of their submission and thereafter the findings have been recorded that the Mahadnama (Ext. 4) dated 25.08.1986 is a genuine and legally enforceable document. The issue of burden of proof becomes immaterial in this case as both the parties have led their respective evidence in support of their contentions and the findings have been recorded after considering those evidence. Such an issue becomes material only when the party on whom the burden of proof lies fails to adduce any evidence altogether. The apex court in (Aru Mugham Vs. Sundrambal) 1999(4)SCC 350 in similar circumstances has laid down as follows:- “16. On the question of burden of proof, we are of the view that even assuming that burden of proof is relevant in the context of the amended provision of Section 100 C.P.C., the same would not be relevant when both sides had adduced evidence. It would be relevant only if a 6 person on whom the burden of proof lay failed to adduce any evidence altogether…” Thus there is no force in the submissions by the learned counsel in this regard. 6. Further in the judgment of the appellate court the specific points for determination have been formulated and the findings thereon have been recorded after considering the evidence and submissions of the parties and as such the submission made by the learned counsel on the basis of the provision of Order 41 Rule 33 is clearly misconceived. After having come to the conclusion that the agreement for sale (Mahadnama) in favour of the plaintiff is legally valid and enforceable document and the Defendants 2nd Set are not bona fide purchasers, for value and without notice of the aforesaid agreement for sale, both the courts below have rightly granted the decree in favour of the plaintiff as prayed for. On behalf of the appellant, no facts or circumstances on record could be pointed out which would have repelled the courts from exercising their discretion in favour of the plaintiff. The provisions of Section 20 of the Specific Relief Act and 7 Section 22 of the Specific Relief Act are not meant to be used as tools in the hands of a defaulting defendant to avoid performance of his part of the contract. Nothing has been found by the courts below which could disqualify the plaintiff from getting the decree as prayed for rather the findings of the courts below are indicative of the fact that the conduct of the defendants themselves was not aboveboard. The discretion exercised by both the courts below in granting the decree for specific performance is reasonable and in accordance with the judicial principles. 7. No substantial question of law arises for consideration in this appeal which is, accordingly, dismissed. Nitesh ( V. Nath, J.)