1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 251 OF 2005 (Vishnu Narayanrao Choudhary .v. Shrikrishna @ Haribhau Nilkanth Janephalkar and others) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri S.P. Kshirsagar, Advocate for the appellant. Shri D.G. Patil, Advocate for the respondents. CORAM : SMT. VASANTI A. NAIK, J. 18TH JUNE, 2008. Heard the learned Counsel for the parties. By the instant Second appeal, the appellant challenges two concurrent judgments passed by the trial and the appellate Court dismissing the suit filed by the plaintiff/appellant for grant of a decree of specific performance of contract. The appellant is the original plaintiff. It was the plaintiff's case that the defendant No.1 had agreed to sell his field property to the plaintiff for a consideration of Rs.65,000/-. An agreement was executed between the parties on 30.12.1991. According to the plaintiff, the said amount was duly paid by the plaintiff to the defendant No.1 on 30.12.1991 and consequent to the same, the possession of the property was also handed over to the plaintiff by the defendant No.1 on 30.12.1991 only. 2 According to the plaintiff, he paid an amount of Rs.35,000/- to the defendant No.1 on 15.03.1990 through his elder brother Rambhau and one Dilip Pawar. A balance amount of Rs.30,000/- was paid by the plaintiff to the defendant No.1 after the same was received by the plaintiff by a sale of cotton. Since there were restrictions on the sale of the property, the sale deed could not be executed on 30.12.1991 as the land was situated within the project affected zone and the permission of Land Acquisition Officer for execution of the sale deed was required. It is the case of the plaintiff that after obtaining permission from the Land Acquisition Officer, the defendant No.1 illegally executed a sale deed of the suit land in favour of the defendant Nos.2 and 3 on 08.05.1998 for a consideration of Rs.65,000/-. The plaintiff pleaded that the said transaction was not binding on the plaintiff. The plaintiff, therefore, sought a declaration that the sale transaction dated 08.05.1998 was null and void and was not binding on him and further prayed for a decree of specific performance of contract against the defendants or in the alternative for refund of amount of Rs.65,000/- with interest thereon. The defendant No.1 admitted the claim of the plaintiff by filing a Written Statement. Most of the 3 pleadings of the plaintiff were admitted by the defendant No.1. The defendant Nos.2 and 3, however, resisted the claim of the plaintiff. the defendant Nos.2 and 3 are incidentally the sons of the plaintiff's real brother Rambhau. The defendant Nos.2 and 3 denied that the plaintiff had paid an amount of Rs.65,000/- to the defendant No.1. According to them, the alleged agreement of sale dated 30.12.1991 was a bogus document prepared with a view to give a go bye to the agreement with the father of the defendant Nos.2 and 3., executed on 15.03.1990. According to the defendant Nos.2 and 3, their father had entered into an agreement with the defendant No.1 on 15.03.1990 and had also paid an earnest amount of Rs.35,000/- to the defendant No.1. It was further pleaded that after receiving the balance consideration, the defendant No.1 executed a registered sale deed in their favour on 08.05.1998, after seeking necessary permission from the Collector. It was also pleaded by the defendant Nos.2 and 3 that though the alleged document dated 30.12.1991 was titled as a sale deed, it was not registered and in view of the same, no title could have passed in favour of the purchaser for want of registration, specially when the document was a bogus one and prepared by the plaintiff in collusion with 4 the defendant No.1. The defendant Nos.2 and 3 sought the dismissal of the suit. On the aforesaid pleadings, the trial Court framed the issues and after considering the evidence tendered by the parties in detail, recorded a finding that the plaintiff had failed in proving that he had paid an amount of Rs.65,000/- to the defendant No.1 towards sale consideration. The Court further held that the plaintiff had proved his possession over the suit property but the possession of the plaintiff was not by virtue of the execution of the alleged agreement of sale dated 30.12.1991. the trial Court, on the other hand, accepted the case of the defendant Nos.2 and 3 about the execution of a valid agreement between the defendant No.1 and their father on 15.03.1990 and further held that the defendant Nos.2 and 3 are bona fide purchasers of the suit property. Since the Court had held that the plaintiff had not succeeded in proving the payment of Rs.65,000/-to the defendant No.1, there was no question of refunding the amount of Rs.65,000/- to the plaintiff. Since the plaintiff was in possession of the suit property, the trial Court granted permanent injunction in favour of the plaintiff with a rider that the defendant Nos.2 and 3 should not interfere with the possession of the plaintiff except under the due process of law. 5 The findings recorded by the trial Court were challenged by the plaintiff in an appeal which was registered as Regular Civil Appeal No.55/2001. By the judgment dated 23.03.2005, the first appellate Court confirmed the findings recorded by the learned trial Court. The findings recorded by both the Courts are challenged in the instant Second Appeal. It is submitted on behalf of the appellant by learned Counsel Shri S.P. Kshirsagar, that the trial Court ought to have immediately decreed the suit in view of the admission of the claim of the plaintiff by the defendant No.1. The learned Counsel for the appellant relied on the provisions of Order 15 Rule 2 of the Code of Civil Procedure Code and also referred to Section 17 of the Indian Evidence Act, 1872 which defines an admission. It was then submitted on behalf of the appellant that the evidence tendered by the appellant was not considered by both the Courts in the right perspective and on the basis of the evidence tendered by the parties on record, the Court ought to have reached to the only conclusion that a valid agreement of sale was executed between the plaintiff and the defendant No.1. It was further submitted on behalf of the appellant that the Courts could not have recorded the finding that the consideration was paid by the defendant Nos.2 and 3 or 6 their father merely on the basis of oral evidence only. It was then submitted on behalf of the plaintiff that the defendant Nos.2 and 3, had not entered the witness box to prove their case or to defend the claim of the plaintiff and hence in that view of the matter, both the Courts clearly erred in upholding their plea and rejecting the case of the plaintiff. It was also urged on behalf of the appellant that though the defendant No.1 did not enter the witness box, he had filed a Written Statement by which the claim of the plaintiff was admitted in totality and hence the absence of oral evidence on behalf of the defendant No.1 was not detrimental to the case of the plaintiff. Shri D.G. Patil, the learned Counsel appearing on behalf of the respondent Nos.2 and 3 supported the judgments passed by the trial as well as the appellate Court and submitted that both the Courts have not only considered and appreciated oral and documentary evidence tendered by the parties on record but have considered and discussed the evidence in detail. It was then submitted on behalf of the respondent Nos.2 and 3 that both the Courts were justified in holding that there was a valid agreement of sale between the defendant No.1 and the father of the defendant Nos.2 and 3. It was also submitted on behalf of the respondent Nos.2 and 3 7 that there was no necessity for the respondent Nos.2 and 3 to enter the witness box as the agreement was executed by the defendant No.1 in favour of the father of the defendant Nos.2 and 3 and, therefore, their father Rambhau had entered the witness box to depose about the genuineness of the same. The learned Counsel for the respondent Nos.2 and 3 then submitted that the Courts were not at fault in holding that the father of the defendant Nos.2 and 3 had paid the consideration to the defendant Nos.2 and 3 and the defendant Nos.2 and 3 had paid the total consideration to the defendant No.1 on the basis of oral evidence on record. The learned Counsel for the respondent Nos.2 and 3 sought for the dismissal of the appeal. To consider the first submission made on behalf of the appellant, it is necessary to consider the provisions of Order 15 Rule 2 of the Code of Civil Procedure which reads thus :- 2. One of several defendants not at issue. - [(1)] Where there are more defendants than one, and any of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants.” 8 A bare reading of the provisions of Rule 2 of Order 15 of the Code of Civil Procedure makes it clear that it is not mandatory for the Court to at once pronounce judgment for and against the defendant who admits the claim of the plaintiff in a suit which is filed against several defendants. In the instant case, the trial Court has clearly observed in the judgment that there was a collusion between the defendant No.1 and the plaintiff and the alleged agreement of sale dated 30.12.1991 was brought into effect with a view to defeat the agreement of sale which was executed between the defendant No.1 and the father of the defendant Nos.2 and 3 on 15.03.1990. In such a situation, which is apparent, it cannot be said that the trial Court ought to have at once pronounced the judgment after the claim of the plaintiff was admitted by the defendant No.1 specially when the provisions of Rule 2 of Order 15 are not mandatory. It is also conspicuous to note that though the defendant No.1 filed the written statement admitting the claim of the plaintiff, he failed to enter the witness box to lend support to the case of the plaintiff that the defendant No.1 had executed an agreement to sell dated 30.12.1991. For considering the next submission made on behalf of the appellant, it is necessary to peruse both the judgments. I have perused 9 both the judgments in their entirety. A perusal of the same makes it clear that in fact both the Courts have appreciated all the material evidence on record to reach to a finding that the agreement executed by the defendant No.1 in favour of the father of the defendant Nos.2 and 3 was a genuine one and the one on the basis of which the plaintiff made his claim was not a genuine one. The Courts have actually scanned the evidence tendered by the parties on record to reach to the aforesaid finding. It also cannot be accepted that the payment of consideration could not have been proved by oral evidence, specially when the Court considered the documentary evidence also. Moreover, there is no hard and fast rule that the issues and facts cannot be proved on the basis of oral evidence. It is for the Court to appreciate the evidence produced before the Court and consider whether it is enough to prove the case of a particular party. The submission is totally ill founded and is, therefore, liable to be rejected at the threshold. To consider the submission made on behalf of the appellant that the plea of the defendant Nos.2 and 3 ought not have been upheld in view of their failure to enter the witness box, it is necessary to note that the defendant Nos.2 and 3 had not claimed that the defendant No.1 had executed an agreement of sale in 10 their favour and it was their case that the defendant No.1 had executed a valid agreement of sale in favour of their father on 15.03.1990. Hence, to prove the aforesaid agreement executed by the defendant No.1 in favour of Rambhau, Rambhau was the best witness and the defendant Nos.2 and 3 cannot be said to be the witnesses who had knowledge of the fact of execution of the agreement of sale dated 15.03.1990 and the payment of consideration by Rambhau to the defendant No.1. Lastly, there is no need to discuss much on the submission made on behalf of the appellant about the effect of the defendant No.1 not entering the witness box when by his written statement he had admitted the claim of the plaintiff. The aforesaid submission is not relevant for deciding the issues involved in the case nor does it give rise to any substantial question of law. I have already noted that both the Courts have discussed the entire evidence in detail to hold that the plaintiff had failed in proving the agreement of sale dated 30.12.1991, the payment of consideration of Rs.65,000/- and was not therefore entitled to any relief claimed in the suit, except that of the grant of permanent injunction as the plaintiff was in possession of the property though it was not in pursuance of the alleged agreement of sale dated 30.12.1991. In any case, the relief of specific 11 performance is a discretionary relief and the Courts have exercised the discretion in a proper manner. Apart from the aforesaid findings on the main issues, the Courts also categorically observed that the facts and circumstances as also the evidence brought on record clearly showed that there was a collusion between the defendant No.1 and the plaintiff and the alleged agreement of sale dated 30.12.1991 was brought into effect just to deny the rightful claim of the defendant Nos.2 and 3 or their father, based on a valid agreement, dated 15.03.1990. Since no substantial question of law arises for consideration in this Second Appeal, the same is dismissed with no order as to costs. JUDGE *rrg.