IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.65 of 2007 1. Sanjivan Lal 2. Akchaybar Prasad Both sons of Kapildeo Lal 3. Santlal son of Kapildeo Lal 4. Biharilal son of Kapildeo Lal 5. Most Puranwasi Devi wife of late Suratlal 6. Mohanlal son of Suratlal, minor through Most. Puranwasi Devi, mother-guardian. All residents of village Pasnauli alias Maharajganj, District Siwan, at present Purani Bazar, Pergana Bara, P.S. and P.O. Maharajganj, District Siwan. …Plaintiffs-Respondents-Appellants. Versus 1. Chhotelal Gupta, son of Rameshwar Prasad 2. Pannalal Gupta, son of Rameshwar Prasad 3. Asharfilal son of Thakur Prasad All residents of village Pasnauli alias Maharajganj, District Siwan, at present Purani Bazar, Pergana Bara, P.S. and P.O. Maharajganj, District Siwan. ..Defendants-Appellants-Respondents 1st set. 4. Chhathi Devi wife of Kanhaiya Prasadji 5. Murat Devi, wife of Harischandra Prasadji, daughter of Kapildeo Ram. All residents of village Pasnauli alias Maharajganj, District Siwan, at present Purani Bazar, Pergana Bara, P.S. and P.O. Maharajganj, District Siwan. …Plaintiffs-Respondents-Respondents 2nd set. 6. Most. Bhagmania Devi, wire of Sukhdeo Sah, deceased 7. Krishna Sah, son of Sukhdeo Sah 8. Kishori Prasad, son of Sukhdeo Sah. All residents of village Pasnauli alias Maharajganj, District Siwan, At present Purani Bazar, Pergana Bara, P.S. and P.O. Maharajganj, District Siwan, at present village Madhopur, Pergana Dagsi, P.O. Madhopur Dagsi, P.O. Madhopur, P.S. Barauli, District Gopalganj. …..Defendants-Respondents-Respondents 3rd set. ------ For the appellants : M/s Kamal Nayan Chaubey, Sr. Advocate, Ambuj Nayan Chaubey, Siddharth Harsh & Umesh Narayan Dubey, Advocates. For respondents 1st set: Mr.Upendra Prasad, Mrs. Veena Kumari Jaiswal and Mrs. Chandrakala Jailswan, Advocates. ------ 05/ 05.10.2009 Heard learned counsel for the appellants and learned counsel for the respondents first set. 2 2. This second appeal has been filed by the plaintiffs- respondents-appellants challenging the judgment and decree dated 08.03.2007, by which learned Additional District Judge-cum-Fast Track Court No. II, Siwan allowed Title Appeal No. 20 of 1988 and set aside the judgment and decree dated 20.02.1988, by which learned Subordinate Judge-IV, Siwan decreed Title Suit No. 115 of 1980. 3. The said suit was filed by the plaintiffs, who are appellants in this second appeal, for specific performance of contract against both sets of defendants with respect to the suit land. The claim of the plaintiffs was that there was a mortgage deed (zarpeshgi ) dated 23.12.1969 executed by defendants first set in favour of the original plaintiff for a sum of Rs.4,000.00, whereafter on 19.06.1979 an agreement for sale (Mahadanama ) was executed by defendants first set in favour of the original plaintiff with respect to the suit premises for a total sum of Rs.7,500.00, out of which Rs.4,000.00 was adjusted towards the zarpeshgi and Rs.2,000.00 was paid at the time of execution of the agreement for sale and the remaining consideration amount of Rs.1,500.00 was to be paid by 15.01.1980, on which date the sale-deed was to be executed. The plaintiffs also claimed that they were ready and willing to perform their part of contract and when they went to defendants first set on 15.01.1980 with money it was refused by defendants first set and subsequently on 18.02.1980 defendants first set executed sale deed with respect to the suit land in favour of defendants second set. 3 4. Defendants first set filed their written statement but thereafter left the pairvi and defendants no. 4 to 6, who had also filed their written statement, contested the suit, in which the following issues were framed :- (i) Whether the suit as framed is maintainable ? (ii) Had the plaintiff got any valid cause of action for the suit ? (iii) Had there been partition in the manner as alleged by the plaintiff ? (iv) Is the Mahadanama dated 19.06.1979 valid and genuine document ? (v) Is the sale deed dated 18.02.1980 valid genuine and for value without notice of the aforesaid Mahadanama ? (vi) Is the Plaintiff entitled for a decree of Specific Performance of Contract against the defendants? (vii) Is the Plaintiff entitled to any other relief, if so to what extent ? 5. The learned trial court, vide its judgment and decree dated 20.02.1988, decreed the suit after arriving at the findings that a partition had taken place between the two brothers, namely, Bhola Sah and Sukhadeo Sah with respect to plots no. 2493 and 2490 and that the Mahadanama dated 19.06.1979 was a valid and genuine document and also that the defendants second set had knowledge of the said Mahadanama before obtaining sale deed dated 18.02.1980 in their favour from defendants first set. 6. The aforesaid judgment and decree of the trial court was challenged by defendants second set in Title Appeal No. 20 of 4 1988, in which the plaintiffs, who were respondents, appeared and contested, whereafter the following points were framed by the appellate court for deciding the title appeal :- (i) Is the deed of Mahadanama dated 19.06.1979 executed by Bhagmani Devi, Krishna Prasad and Kishori Prasad in favour of Kapildeo Ram for Rs.7500/- valid, genuine, operative for consideration and liable to be enforced against the defendants-appellants ? (ii) Whether the defendants-appellants are bona fide purchasers for value without notice of any prior contract between the plaintiff and defendants Ist set. ? (iii) Whether the plaintiff has been ready and willing to perform his part of contract ? (iv) Whether the finding recorded by the learned court below is just and proper and requires to interference or the same is improper, unjust, against the material available on the record and requires to be interfered with ? 7. The learned lower appellate court, after considering the pleadings and evidence of the parties, set aside the judgment and decree of the trial court and rejected the claim of the plaintiffs after arriving at specific findings that the plaintiffs have not been able to prove the execution of Mahadanama; that the plaintiffs have not been able to prove that the defendants second set had prior knowledge of the agreement for sale between the plaintiffs and defendants first set and that the plaintiffs had failed to prove that they had been ready and willing to perform their part of contract and 5 allowed the title appeal vide its judgment and decree dated 08.03.2007. 8. The said judgment and decree of the learned court of appeal below has been challenged by the plaintiffs in the instant second appeal. Learned counsel for the plaintiffs, who are appellants in the instant second appeal, have vehemently contested the said findings of the learned courts below. 9. However, from the facts and circumstances of the case as well as from the evidence adduced by the parties, it is quite apparent that since the plaintiffs were claiming on the basis of Mahadanama dated 19.06.1979, the entire onus was upon them to prove it in accordance with law, but the witnesses adduced by the plaintiffs in that regard, namely, P.W.2, P.W.9 and P.W.10 could not validly support the said pleading as P.W.2 and P.W.9 could not even give the time, date, month and year of the Mahadanama although one of them was a plaintiff in the suit. Furthermore, P.W.10, who also tried to prove the agreement for sale, merely stated that Bhagmatia, Krishna and Kishori executed sale-deed after accepting Rs.15,000.00, which is disproved by the sale deed dated 18.02.1980 itself. Furthermore, the attesting witness of the alleged deed of Mahadanama was not even examined by the plaintiffs. Hence, it is quite apparent that the plaintiffs have miserably failed to prove the execution of Mahadanama. 10. So far the other point is concerned, there is no material at all to show that defendants second set had any notice, 6 knowledge or information about the Mahadanama dated 19.06.1979 before the execution of the sale deed dated 18.02.1980, but the trial court without examining the evidence of the plaintiffs on the said point merely assumed that defendants second set had the knowledge. In the said circumstances, the finding of the learned trial court was against the evidence as the plaintiffs had miserably failed to prove that defendants second set had any prior knowledge of the said agreement. 11. So far point of readiness and willingness of the plaintiffs to perform their part of the alleged agreement is concerned, the trial court has neither framed any issue on the said point nor has considered the said point in its entire judgment although the said issue was the most important issue for deciding a suit for specific performance of contract, hence the judgment and decree of the trial court was clearly defective and nonest due to the said reason. Furthermore, although there is some pleading of the plaintiffs with regard to their readiness and willingness to perform their part of the agreement in the plaint, but the said pleading was not supported by any evidence of the plaintiffs. In this regard only one witness, namely, P.W. 10 Rajendra Prasad has been examined and in his statement he has merely stated that in the year 1980 Kapildeo Ram went to give Rs.1500.00 and he was also with him but he could not name the person to whom the said amount was paid and he could not also make any statement with regard to the date and month of such payment. Thus, it is quite apparent that the 7 plaintiffs had failed to prove that they were ready and willing to perform their part of contract. 12. In the said circumstances, the findings of the learned court of appeal below appear to be legal, justified and based on the pleadings and evidence of the parties. Furthermore, no substantial question of law is found in the instant second appeal, which is, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. MPS/ ( S. N. Hussain, J. )