1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T Ram Karan & anr. Vs. Rameshwar & another S.B. CIVIL SECOND APPEAL NO.580/2009. UNDER SECTION 100 OF THE CPC. DATE OF JUDGMENT: 5th October, 2009 HON'BLE MR.JUSTICE S.P.PATHAK Mr. D.D. Patodiya for the appellants. BY THE COURT: The plaintiff-appellants have filed this second appeal under section 100 of the Code of Civil Procedure challenging the judgment and decree dated 16.12.2003 passed by the learned Additional Civil Judge (Junior Division) No.3, Jaipur District Jaipur in Civil Suit No.200/1994 whereby the suit of the plaintiff appellant for specific performance of contract, declaration and permanent injunction was dismissed and on preferring a regular appeal no.13/2004 before the learned District Judge, Jaipur District, Jaipur, the same was dismissed vide judgment and decree dated 6.7.2009. Heard learned counsel for the appellants. Necessary facts for the disposal of the present case are that the plaintiff-appellants filed a suit for specific performance of contract, declaration and permanent injunction against the respondents in the trial court in January, 1993 2 alleging therein that Mangla, father of the defendant- respondents sold 9 bighas of land of his khatediari on 6.5.1972 to the father of the plaintiff no.1 for a consideration of Rs.2250/- and possession thereof was also handed over to the plaintiff Gauri Shanker. It is also alleged that the sale-deed Ex.-1 was executed and since then plaintiff-appellants are in possession of the suit land. Mangla died nearly 15 years back of the filing of the suit (died in the year 1980). It is also averred in the plaint that the plaintiffs are cultivating the suit land since 6.10.1992. As late Mangla assured the plaintiffs to get the land transferred in their favour, therefore, registry could not be done during his life time. It is also averred that the defendants, the sons of late Mangla, having an intention to dispossess the plaintiffs from the suit land they tried to dispossess the plaintiffs by force in the year 1992 and when the defendants were insisted to get the sale-deed registered, they declined, therefore, it became essential to file the suit. In the written statement, stand of the defendant- respondents was that a forged document was prepared. The land was never sold by their father to the appellants. The averments in the plaint were denied. On the basis of the pleadings of the parties, the learned trial court initially framed five issues and subsequently additional issues were also framed and in all nine issues were framed including relief. 3 Both the parties led their evidence. The plaintiff- appellants examined as many as four witnesses. The plaintiff no.2 examined himself as PW-1, Ramjilal as PW-2, Prabhu Dayal as PW-3 and Ghanshyam as PW-4. In the documentary evidence sale-deed Ex.-1, khasra Girdawari Ex.-2 and report of Girdawar Ex.-3 were tendered in evidence. On behalf of the defendants DW-1 Satya Narayan, DW-2 Badri Narain, DW-3 Rameshwar son of Mangla and DW-4 Rameshwar son of Kishan Lal were examined and some documents were tendered in evidence. The learned trial court framed issue no.1 in relation to agreement to sell dated 6.5.1972 and recorded its finding to the effect that document Ex.-1 was not at all reliable as it was alleged to be a part of 'bahi' which was not produced in the court and further no reliable evidence to prove the writing of one Ghasi Lal who reduced the sale-deed into writing was produced. The learned trial court further recorded its finding that thumb impression on the sale-deed was of such nature which was not capable of being examined by expert. On issue nos. 2 and 7, the learned trial court recorded its finding together to the effect that the plaintiffs could not prove their possession on the suit land since last 12 years as no reliable evidence was produced in this regard. In relation to a sum of Rs.27,000/- paid on 11.9.1992 by the defendants to the plaintiffs, the learned trial court found that 4 there was money dispute between the parties, that was settled by panchas and that aspect of the matter has been proved. This issue has been decided in favour of the defendant- appellants. Issue nos. 4 and 5 were in relation to permanent injunction and relief claimed. The trial court recorded its finding against the plaintiffs and dismissed the suit. The learned appellate court confirmed the findings recorded by the trial court vide its judgment and decree dated 6.7.2009. Hence, the present second appeal has been filed. It has been contended by the learned counsel for the appellants that the finding of the learned trial court on issue no.1 is not tenable as the plaintiffs by their evidence have proved this aspect of the matter, therefore, in the present matter substantial question of law is involved in relation to misreading of evidence by the trial court and the learned appellate court. I have considered the submissions made before me. I do not find any substance in the submission of the learned counsel for the simple reason that in this case the documentary evidence Ex.-1, simply a piece of paper having some thumb impression, which too was not proved, it was found to be a suspicious document by the trial court and the learned appellate court also concurred with the finding recorded by the trial court. 5 In view of above, it cannot be said that the courts below have misread the evidence. It is next contended by the learned counsel that the findings on other issues recorded by the trial court having been confirmed by the appellate court cannot be said to be findings of fact as plaintiffs were able to prove their case by reliable evidence. It is also contended that the suit was filed in the year 1993 and the plaintiffs and respondents are in near relation and on assurance of Mangla that he will get the land transferred, the registry of the land could nt be done in time, therefore, to say that the suit was not in time and to further hold that the plaintiffs were not in possession of the suit land or to say that the plaintiffs were never interested to perform their part of contract is not the correct finding recorded by the trial court. According to the learned counsel, the appellate court has committed illegality in not remitting the case back for recording evidence. I have carefully considered the submissions made before me. In the present matter, the important issue framed by the trial court was in relation to execution of the sale-deed, that has been disbelieved by the two courts below and the document has been found to be a suspicious one, therefore, other issues though have been framed and decided against the plaintiffs but decision of the present case depends on the 6 finding of issue no.1. As discussed above, issue no.1 has been decided by the courts below after appreciating the evidence in accordance with law, I do not find any substance in the submissions made by the learned counsel that the trial court as well as the appellate court have committed illegality in appreciating the evidence and substantial question of law is involved in this appeal for determination by this court. In view of the fore-going discussion, the appeal is liable to be dismissed summarily as it is not involving any substantial question of law for determination by this court. In the result, this second appeal is dismissed. (S.P.PATHAK) J. bblm