* THE HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR + SECOND APPEAL No.448 of 1999 % Dated 22.10.2010 # D. Ahmed Ali Khan, S/o. D. Maddu Khan, R/o.110786, Habeebullah Street, Cuddapah. …APPELLANT VERSUS $ D. Iqbal Ahmed Khan and three others. …RESPONDENTS ! Counsel for the Appellant: MR. M.N. NARASIMHA REDDY ^ Counsel for the Respondents: SMT. C. JAYASREE SARATHY <GIST: >HEAD NOTE: ? Cases referred 1. AIR 2001 SC 2282 2. (2005) 7 SCC 60 3. AIR 1973 SC 2200 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SECOND DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL.No.448 OF 1999 BETWEEN D. Ahmed Ali Khan. …APPELLANT AND D. Iqbal Ahmed Khan and others. …RESPONDENTS Counsel for the Appellant: MR. M.N.NARASIMHA REDDY Counsel for the Respondents: SMT. C. JAYSREE SARATHY The Court made the following: - JUDGMENT: The plaintiff in O.S.No.31 of 1985 before the Subordinate Judge. Kadapa, is the appellant herein, who has succeeded before the trial Court but is aggrieved by the dismissal of the suit by the lower appellate Court under its judgment and decree in A.S.No.54 of 1997 dated 08.01.1999. 2. For the sake of convenience, the appellant/plaintiff and the respondents 1 and 2, who are the contesting defendants 1 and 2, are referred to herein by their same status as before the trial Court. 3. Briefly the plaint allegations are as follows: (a) The mother of the plaintiff had borrowed a sum of Rs.5,000/- from the sister of defendants 1 and 2 under Ex.A1 – simple mortgage deed dated 13.03.1967. The plaintiff had also borrowed a sum of Rs.4,000/- under Ex.A2 – promissory note dated 21.06.1973 from the mother of the defendants 1 and 2. In order to discharge the aforesaid debts, the plaintiff had executed a sale deed – Ex.B6 dated 31.05.1977 in favour of defendants 1 and 2 relating to the plaintiff’s land admeasuring Ac.2.29 cents. Plaintiff alleges that simultaneously with the execution of Ex.B6, the defendants 1 and 2 executed a reconveyance agreement – Ex.A4 also dated 31.05.1977. The terms of the reconveyance agreement was that though the plaintiff’s land is sold under Ex.B6 for Rs.13,500/- to the defendants 1 and 2 but after loading the said amount with interest the plaintiff agreed to obtain reconveyance of the said property from the defendants 1 and 2 within three years by paying the amount of Rs.19,465/- together with registration expenses of Rs.1,586/- on or before 31.05.1980. The agreement further provided that if the plaintiff does not pay the amount within three years and if he seeks reconveyance after six years i.e. by 31.05.1983 but before expiry of one more year i.e. 31.05.1984, the plaintiff has to pay only Rs.19,465/- and thereafter, the agreement shall stand cancelled. (b) Plaintiff alleged that on 23.05.1984 the defendants 1 and 2 extended the time stipulated, as above, up to 22.05.1985 vide endorsement Ex.A6, which is on the reverse of page 1 of Ex.A4. Learned counsel for the appellant has supplied translation of Exs.A4 and A6, as the original is in Telugu and it would be appropriate to extract the translation of Ex.A6 as hereunder: “Plaintiff states that the defendants 1 and 2 subsequently executed a mortgage deed in favour of defendant No.4 by borrowing certain amounts and have also executed a usufructory mortgage in favour of defendant No.3 by hypothecating the lands and borrowed amounts. The plaintiff claims that though he was ready to pay the amount of Rs.19,465/- the defendant failed to honour the terms of Ex.A6 and hence, the plaintiff instituted the present suit for specific performance of the agreement while the aforesaid Ex.A6 and to show the readiness and willingess with the plaintiff they have paid Rs.19,465/- to the counsel who has deposited in a separate account and the defendants 1 and 2 are free to collect the said amount.” (c) The defendants 1 and 2 filed written statement denying the plaint allegations and have specifically denied reconveyance agreement Ex.A4 and also denied the endorsement Ex.A6 therein. The defendants claimed that both the said documents are forged and fabricated and claimed that the plaintiff never made any claim by way of a notice prior to suit and as such, the question of refusal by the defendants does not arise. The defendants 3 and 4 filed a separate written statement admitting that the said transaction of usufructory mortgage between the third defendant and defendants 1 and 2 and that the present suit is a result of collusion between the plaintiff and the defendants 1 and 2 to defeat the said mortgage. The fourth defendant also made similar allegation of collusion after admitting that a simple mortgage was executed in his favour by the defendants 1 and 2 and both the defendants 3 an 4 claim that they are entitled to be paid the amount borrowed by the defendants 1 and 2 with interest. The defendants 3 and 4, however, did not contest the suit thereafter and remained ex parte, presumably as their claim against defendants 1 and 2 was satisfied in the interregnum. (d) The trial Court initially framed five issues, which are as follows: 1. Whether the reconveyance agreement executed by the defendants 1 and 2 is valid and binding on the defendants 1 and 2? 2. Whether the preliminary decree obtained by the third defendant in O.S.No.151 of 1981 is not binding on the suit schedule property of plaintiff? 3. Whether the simple mortgage executed by defendants 1 and 2 in favour of the 4th defendant is not binding on the plaintiff and the suit property? 4. Whether the plaintiff is entitled for specific performance of reconveyance agreement executed by the defendants 1 and 2? 5. To what relief? Later the trial Court framed two additional issues as under: 1. Whether there is any collusion between the plaintiff and defendants 1 and 2 as pleaded by the defendants 3 and 4? 2. Whether the fourth defendant filed the suit in O.S.No.750 of 1985 III Addl. Dist. Munsif Court, Cuddapah against the defendants 1 and 2 not binding on the plaintiff? At the time of disposal of the suit it recasted the issues, which are as follows: 1. Whether the suit reconveyance agreement dt.31.5.77 executed by the defendants 1 and 2 and the endorsement dt. 23.5.1984 is true, valid and binding? 2. Whether the plaintiff is entitled for specific performance of reconveyance agreement alleged to have been executed by the defendants 1 and 2? 3. Whether the mortgage deeds in favour of the defendants 3 and 4 by the defendants 1 and 2 are binding on the plaintiff? 4. To what relief? 4. In order to establish the case of the plaintiff, he examined himself as P.W.1; P.W.2 is the hand writing expert, who has compared the admitted and disputed signatures of the defendants 1 and 2 and gave an opinion against the defendants 1 and 2; P.W.3 is the scribe of Ex.A6 endorsement and P.W.4 is one of the attestors under Ex.A6. The first defendant examined himself as D.W.1; second defendant as D.W.2 and D.W.3 is another third party witness examined by the defendants 1 and 2, who is actually the brother of the plaintiff and maternal uncle of the defendants 1 and 2, just like the plaintiff. 5. Apart from the material documents on either side, which are referred to above, the mortgages executed by the defendants 1 and 2 in favour of the third defendant were sought to be established by filing registration copy of Ex.A7 date 24.08.1977 and another mortgage in favour of the fourth defendant was sought to be proved by filing registration copy of Ex.A8 dated 29.09.1982. Plaintiff also filed Ex.A9 dated 25.04.1985 which is a cash receipt of Rs.19,465/- showing deposit of the said amount in the account of his counsel bearing A/c.No.6820 in the State Bank of India, Kadapa. Plaintiff also filed Exs.A10 to A11, which are certified copies of deposition of D.W.2 and decree in O.S.No.715 of 1988, which was a suit for recovery of money filed by another creditor against the defendants 1 and 2 and these documents are filed for the purpose of showing that the defendants 1 and 2 are in the habit of executing documents and then denying their signatures thereof. Ex.A12 is the written statement of D.W.2 in plaintiff’s earlier suit O.S.No.60 of 1979, which is also marked for the purpose aforesaid. The defendants on their side filed Ex.B1 notice issued by the plaintiff before he filed the earlier suit O.S.No.60 of 1979 for recovery of amount from the defendants 1 and 2 towards a pronote also executed on 31.05.1977 simultaneously with Exs.B6 and A4. Ex.B2 is the copy of the said earlier plaint of the plaintiff in the aforesaid pronote suit. Ex.B3 is the summons and Ex.B4 is the memo filed by the plaintiff in that suit informing the Court that the suit is settled outside the Court and the same be dismissed as not pressed. Ex.B5 is the office copy of the application for attachment before judgment moved by the plaintiff in that suit. 6. The trial Court on consideration of the evidence and particularly that of the opinion of the expert – P.W.2 and in due consideration of his report – Ex.C4 together with the photographs of admitted and disputed signatures – Exs.C1 to C3 [Exs.C1 to C4 were not referred to in the appendix of evidence appended to the trial Court judgment] and came to the conclusion that the plaintiff has proved Ex.A6 endorsement made by the defendants 1 and 2. The trial Court also found that the plaintiff had already deposited Rs.19,465/- under Ex.A9 earlier in his counsel’s account and later the said amount was deposited into the Court, which establishes the readiness and willingness on the part of the plaintiff. Further, as defendants 3 and 4 have not contested, the suit documents executed by the defendants 1 and 2 in their favour are not binding on the plaintiff and consequently, decreed the suit as prayed for. 7. On appeal by the defendants, the lower appellate Court has reversed the said decree on a finding that Ex.B6 sale deed is an out and out sale; it disbelieved Exs.A4 and A6 – reconveyance agreement and endorsement on the ground that though Ex.A4 is simultaneous with Ex.B6 the same is not registered and that reference to the said reconveyance agreement is not found in Ex.B6 as well as in the notice and in the suit earlier filed by the plaintiff vide Exs.B1 and B2 respectively. The lower appellate Court also observed that the expert’s evidence i.e. P.W.2 is not conclusive as it is merely an opinion evidence and in view of the evidence of D.W.3, who is the brother of the plaintiff, the lower appellate Court disbelieved the plaintiff’s case and dismissed the suit. Hence, this second appeal by the plaintiff. 8. The second appeal was admitted by this Court on 20.07.1999 on the substantial questions of law as framed under ground Nos.3, 5, 6, and 7 of the memorandum of grounds, which are extracted hereunder for convenience: 3. That the lower appellate Court failed to follow the judgment of the Supreme Court reported in AIR 1973 SC 2200, when the internal and external evidence relating to handwriting (signatures) in question supports the experts view. 5. That the lower appellate Court erred in holding that Ex.B6 sale deed is an absolute sale and not a conditional sale and thus failed to interpret the deed of such a transaction in the light of the evidence on record, particularly when no amount in cash was paid as a sale consideration and when contemporaneous agreement to resale property was executed by D1 and D2 on the same date and that the Supreme Court held in the judgment reported in AIR 1988 SC 1074 that such a transaction is a mortgage and that the long period of 10years is no bar. 6. That the lower appellate Court failed to notice that the parties are closely related and that the D1 and D2 are the sons of elder sister of plaintiff and that therefore in view of proximity of relationship the long period of 8 years for reconveyance was agreed upon and that further lower appellate Court failed to notice that nothing was paid in cash towards sale consideration by D1 and D2 and that therefore the finding of the lower Court that it is improbable to believe that D1 and D2 agreed to resell after 8 years is against the record and the evidence in the case. 7. That the findings of the lower appellate Court having found that the P.W.3 (scribe) and P.W.4 (attestor) of Ex.A6 (extension of time of one more year) “No doubt supported the version of P.W.1 (plaintiff) and P.W.2 (Handwriting Expert)” ought not to have held that it is not safe to rely on their evidence on the ground that they belong to different villages and that when it is admitted fact that they (P.W.3 and P.W.4) are the persons who were attending to the agricultural operations of the suit land and on the contrary the lower appellate Court believed the evidence of D.W.3 who is enemical to the plaintiff, simply on the ground that D.W.3 is the brother of the plaintiff is perverse. 9. Heard Mr. M.N. Narasimha Reddy, learned counsel appearing for the appellant/plaintiff and Smt. C. Jayasree Sarathy, learned counsel appearing for the respondents/defendants. 10. Learned counsel for the appellant criticized the approach of the lower appellate Court by contending that the lower appellate Court had failed to consider whether the transaction under Ex.B6 sale deed is really a sale or is a conditional sale coupled with agreement of reconveyance – Ex.A4. He points out that the lower appellate Court has first taken Ex.B6 since the said document is, admittedly, executed by the plaintiff and proceeded to hold that it is an out and out sale. He submits that the lower appellate Court ought to have simultaneously considered Ex.B6 along with Ex.A4 and the pronote executed by the defendants 1 and 2 in favour of plaintiff, which was the subject matter of Ex.B2 suit earlier filed by the plaintiff. He also contended that the rejection of Ex.C4 – report of P.W.2 by the lower appellate Court is not justified, particularly, when the said report is corroborated by the evidence of P.Ws.3 and 4, the scribe and the attestor of Ex.A6. He also criticized the lower appellate Court’s reliance on evidence of D.W.3, who, admittedly, has enmity with the plaintiff. He has placed reliance upon the decision of the Supreme Court in HAMIDA v. MD. KHALIL[1] to contend that as the lower appellate Court’s conclusions are not based on evidence, there is no impediment for interference thereof under Section 100 of the Code of Civil Procedure, 1908. Another decision is relied upon in RAJESHWARI v. PURAN INDORIA[2] for the proposition that under Section 100 CPC questions of substantial importance arise between the parties in a specific performance suit and for the further proposition that when an erroneous approach is adopted by the lower appellate Court, this Court under Section 100 CPC can interfere with the same. 11. Learned counsel for the respondents, on the other hand, contended that the remedy under the Specific Relief Act, 1963 (for short ‘the Act’) being discretionary, the lower appellate Court has rightly considered that the plaintiff had filed the suit without issuing any prior notice and the lower appellate Court had considered all the documentary and oral evidence independently and reached the findings of fact, which cannot be interfered with under Section 100 CPC. It is also submitted that the evidence of handwriting expert is always considered as weak evidence and even otherwise the plaintiff has not proved the readiness and willingness as Ex.A9 receipt shows that the plaintiff had deposited the amount with his own counsel in the counsel’s account. Learned counsel also pointed out that the very case of the plaintiff that reconveyance of the property under Ex.A4 for Rs.19,465/- without interest after several years is on the face of it improbable and that the lower appellate Court has specifically found that going by the normal human conduct one cannot expect a property to be reconveyed to the seller for the same amount after so may years. Learned counsel also points out that Ex.A4 is not proved by examining both attesting witness in spite of the fact that another attesting witness was alive but not examined by the plaintiff. 12. In the light of the rival submissions and the substantial questions of law required to be answered in this appeal and in view of the two opposite views expressed by the trial Court and the lower appellate Court, I have examined the admitted and disputed documents filed by either side. I have also minutely examined the oral evidence on the basis of the oral and documentary evidence and on the probabilities of the case the conclusions arrived at by the lower appellate Court are clearly perverse and unsustainable. The reasons therefor are as follows. 13. Para 3 of the plaint specifically states that the defendants paid Rs.19,465/- to the plaintiff, which includes the sale consideration of Rs.13,500/- under the deed and on the same day the defendants agreed to reconvey the property to the plaintiff or his nominee on receiving Rs.19,465/-. The plaintiff had to pay Rs.1,586/- registration expenses, if he seeks reconveyance before 01.05.1980 and thereafter only on payment of Rs.19,465/- on or before 31.05.1984. This last date is said to have been extended by the defendants 1 and 2 up to 22.05.1985 under Ex.A6. Para 3 of the written statement, however, does not contravert any of these aspects except stating that the agreement of reconveyance dated 31.05.1977 (Ex.A4) as well as the endorsement Ex.A6 dated 26.05.1984 are fabricated and not signed by the defendants. The said paragraph also claims that the value of the land has increased three times the original value and on account of that the plaintiff has forged the signatures of the defendants on Exs.A4 and A6 to make wrongful gain. Para 4 of the written statement merely states that the deposit of amount by the plaintiff with his counsel is not within the knowledge of the defendants and para 5 states that there was neither any demand nor any notice from the plaintiff to receive Rs.19,465/- and as such, there is no question of refusal by the defendants. Thus, the plaintiff’s specific case that though Ex.B6 shows sale consideration of Rs.13,500/-, reconveyance agreement Ex.A4 mentions Rs.19,465/- payable by the plaintiff, which accounts for the debts with interest covered under Exs.A1 and A2. Further case of the plaintiff is that in spite of adjustment of the said debts, balance amount of Rs.2,950/- remained with the defendants for which they executed pronote, which was subject matter of Ex.B1 notice and Ex.B2 suit (O.S.No.60 of 1979 before the District Munsif, Kadapa). In the said suit the defendants 1 and 2 filed written statement, which is marked as Ex.A12, wherein execution of the pronote is admitted in para 4. 14. The plaint allegations in O.S.No.60 of 1979 (Ex.B2) in para 3 further states that on 31.05.1977 the defendants purchased the plaintiff’s land for Rs.19,465/- and the said consideration included the amounts due to the defendants’ sister and mother by the plaintiff’s mother and the plaintiff and still balance Rs.2,950/- remained with the defendants, which is covered by the said pronote. It is, no doubt, true that the agreement of reconveyance etc. is not mentioned in the said suit or in the notice Ex.B1 preceding the suit. It is, however, significant to note that the defendants did not dispute those plaint allegations as well, as in the case of present plaint allegations, as already mentioned above. The lower appellate Court while considering Ex.B6, however, proceeded to treat the said document as for sale price of Rs.19,465/- whereas, in fact, it recites sale consideration as only Rs.13,500/- and based on the said assumption, the lower appellate Court, further, concludes in para 21 that it is improbable to believe that the persons, who purchased the property, have agreed to sell it for the same price even after 8 years. Thus, the assumption of the lower appellate Court that Ex.B6 sale was for Rs.19,465/- was factually incorrect and in fact, Ex.B6 is only for Rs.13,500/- whereas Ex.A4 reconveyance is for Rs.19,465/-. 15. The lower appellate Court has also not taken into consideration the following admission of D.W.2: “…We deducted the amount due to my mother and sister and for the remaining balance sale consideration myself and my brother executed pronote in favour of the plaintiff for Rs.2,950/-. We did not pay any cash consideration to the plaintiff for purchase of suit schedule property. One Fakeer Saheb scribed the original of Ex.B6…” 16. The above admissions clearly supports the plaint allegations but the lower appellate Court failed to notice the aforesaid admissions of D.W.2. The lower appellate Court had also recorded observations for rejecting Ex.A4 on the ground that it is not registered and that it is not referred to in Ex.B6. Both the said observations are clearly unsustainable inasmuch as any contemporaneous document executed by and between the same parties has to be treated as part of one transaction and appreciated accordingly. Further, in all conditional sales one would normally come across a document of sale, a document of reconveyance as well as rental deed and all these set of documents taken together would lead to an irresistible conclusion that the sale covered by one document is not an out and out sale but a conditional sale. In the case on hand, we have three contemporaneous documents all dated 31.05.1977 viz. Ex.B6 – registered sale deed; Ex.A4 – reconveyance agreement and pronote, which is subject matter of Ex.B2 suit. Though the reconveyance agreement is denied by the defendants 1 and 2, the recitals in their written statement – Ex.A12 in the pronote suit coupled with the nature of the written statement filed by them in the present suit, as already discussed above, and further read along with the admissions of D.W.2, extracted above, would clearly establish Ex.B6 – sale deed, which is admitted, and the pronote on the same day. Thus, to establish three contemporaneous documents, the plaintiff has to establish the disputed document – Ex.A4. One of the attestors is said to be alive but the record shows that the plaintiff had taken steps to summon him; but ultimately, he could not examine him. However, the plaintiff has taken steps to establish the endorsement – Ex.A6, which is on page 2 of Ex.A4. In order to prove the said document, the plaintiff has examined P.W.3 – scribe and P.W.4 – attestor of Ex.A6. In addition to above, the plaintiff had sent admitted and disputed signatures of the defendants for comparison by handwriting expert, whose report with analysis was marked as Ex.C4 and the said expert was examined as P.W.2. 17. The evidence of P.W.3 – scribe speaks of execution and attestation of Ex.A6 in his presence. On cross-examination also he stood by his statement. Similarly, P.W.4, one of the attestors of Ex.A6, also appears a natural witness and he is known to plaintiff as well as the defendants, as he states that he was irrigating the lands of the defendants also. Thus, the evidence of P.Ws.3 and 4 above clearly corroborates the opinion of the expert P.W.2 vide his report – Ex.C4. The Honourable Supreme Court in RAM NARAIN v. STATE OF UTTAR PRADESH[3] considered Section 45 of the Evidence Act and the circumstances under which the evidence of an expert can be accepted by the Court and concluded as under: “…But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert. If after comparison of the disputed and admitted writings by the Court