1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 289 OF 2003 1. Panditrao S/o Pundlikrao Madrewar Age : 36 Years, Occ. Agriculture & Medical Practitioner, R/o : Maniknagar, Nanded, Tq. & Dist. Nanded. 2. Bhimrao S/o Pundlikrao Madrewar Age : 51 Years, Occ. Service, R/o : Nanded. 3. Sow. Shalini W/o Pralhadrao Gundale Age : 34 Years, Occ. Agriculture, R/o : Sahyognagar, Nanded. .... APPELLANTS V E R S U S Pundlikrao S/o Bhujangrao Kalyankar Age : 60 Years, Occ. Agriculture, R/o : Taroda, Kd. Tq. Nanded ( Died – through legal representatives ) 1. Smt. Bhagirathibai @ Bhagabai W/o Pundlikrao Kalyankar Age : 64 Years, Occ. Agriculture, R/o : Taroda Kd., Tq. & Dist. Nanded. 2. Laxman S/o Pundlikrao Kalyankar 2 Age : 54 Years, Occ. Agriculture, R/o : Taroda Kd., Tq. & Dist. Nanded. 3. Uttam S/o Pundlikrao Kalyankar Age : 38 Years, Occ. Agriculture, R/o : Taroda Kd., Tq. & Dist. Nanded. 4. Sadashiv S/o Pundlikrao Kalyankar Age : 38 Years, Occ. Agriculture, R/o : Taroda Kd., Tq. & Dist. Nanded. 5. Sow. Kesharbai W/o Taterao Pawade Age : Major, Occ. Agriculture, R/o : Puyani, Tq. & Dist. Nanded. 6. Sow. Kamalabai W/o Gunaji Shinde Age : Major, Occ. Agriculture, R/o : Sugaon, Tq. & Dist. Nanded. 7. Sow. Subhadrabai W/o Kishanrao Desai Age : Major, Occ. Household, R/o : Chudawa, Tq. Purna, Dist. Nanded. 8. Sow. Pushpabai W/o Ashokrao Kadam Age : Major, Occ. Household, R/o : Pimparala, Post Kurunda, Tq. Vasmat, Dist. Hingoli. .... RESPONDENTS 3 ---------------------------------------------------------------------------------------------------------------- Mr. P.R.Katneshwarkar, Advocate for the appellants. Mr. S.V. Kurundkar, Advocate for Resp.nos. 1,2,4,5,7,8. Mr. A.D.Kasliwal, Advocate for Respondent no. 3. Mr. Amit Mukhedkar, Advocate for Respondent no. 6. ----------------------------------------------------------------------------------------------------------------- CORAM : S.V. GANGAPURWALA, J. DATE : 07/10/2010 JUDGMENT : 1. The present appellant/original plaintiff filed Special Civil Suit No. 305 of 1996 against the present respondent/original defendant for specific performance of contract in respect of land bearing G.No. 264 admeasuring 2 H. 75 R. situated at village Sangavi to the extent of 1 Hector 95 R and as per the boundaries detailed in the plaint. 2. It was the case of the plaintiff that the defendant agreed to sale the land to the plaintiff for consideration of Rs. 95,000/- per Acre as per agreement dated 16/05/1994. The defendant executed sale deed of 80 R. land on 06/07/1994. As the sale deed was not executed for remaining portion of the land, the Suit came to be filed. The defendant denied the contentions of the plaintiff and the agreement of sale as claimed by the plaintiff. 3. The plaintiffs have relied on the agreement of sale at Exh. 157, Sale 4 deed Exh. 40, the Complaint filed by Sanjay Uttarwar at Exh. 213, the notice issued by the plaintiff at Exh. 43, the Consent deed at Exh. 240, Exh. 46 the reply given by the defendants to the notice at Exh. 43, Exh. 195 the Paper proclamation issued by the plaintiffs. The defendants relied upon the aforesaid documents and also agreement for sale Exh. 239. 4. Two agreement of sale, both dated 16/5/1994 are produced on record. The plaintiffs aver that Exh. 157 is the agreement of sale which has been executed between the parties, whereas the defendants contend that Exh. 239 is the agreement of sale executed between the parties. The agreement of sale at Exh. 157 produced by the plaintiffs is in respect of 2.75 Hectors of land, whereas the agreement of sale at Exh. 239 produced by the defendant is in respect of 80 R. land, of which the sale deed at Exh. 40 has been executed. Both the parties are relying on the respective agreement of sale produced by them. The moot question is, whether the evidence on record proves the case of the plaintiff regarding the agreement of sale of the whole land admeasuring 2 Hectors 75 R. The further question regarding the readiness and willingness of the plaintiff, so also exercise of discretion would depend upon the proof of the agreement of sale Exh. 157. 5. The plaintiffs have examined plaintiff no. 3 as P.W. 1, P.W. 2 Renukadas in respect of the transaction of cheque and P.W. 3 Maruti regarding the credit voucher of Rs. 75,000/- dated 6/7/1994. The evidence of P.W. 4 regarding the transaction of bank account No. 4646, evidence of Jaju as P.W. 5 for proving the paper proclamation and Sanjay Uttarwar, the attesting witness to the 5 agreement of sale Exh. 157. The evidence of P.W. 6 Sk. Jilani, the Police Constable, who has recorded the complaint and the evidence of hand writing expert, so also evidence of P.W. Nos. 8 and 9 for proving the timings of the concerned bank. 6. The defendants have examined Uttam Kalyankar i.e. the present respondent no. 3, Tukaram Kalyankar to prove the transaction of 2 Acres only, D.W. Balaji Uttarwar to prove the sale deed, one Suresh Rajurkar to prove the sale of 2 non judicial stamps and one Moreshwar Guru to prove that he has deposited stamp sale register. 7. The trial Court vide its Judgment and decree dated 19/03/2003 dismissed the Suit of the plaintiff for specific performance with compensatory costs, so also, directed the plaintiffs to pay compensation amount of Rs. 25,000/- to the defendant under Section 95 of the Code of Civil Procedure. The plaintiffs have assailed the said Judgment and decree passed by the Jt. Civil Judge (Sr. Division), Nanded in the present First Appeal. 8. Mr. Katneshwarkar, the learned counsel for the appellant/original plaintiff and Mr. A.H.Kasliwal, Mr. Kurundkar and Mr. Mukhedkar, the learned counsels for the respective respondents advanced arguments at length and have taken me through the pleadings, the depositions of the parties and the relevant documents. 6 9. The following points arise for my consideration : I) Whether the plaintiffs prove agreement of sale ( Exh. 157)dated 16/05/1994 regarding sale of land admeasuring 2 H. 75 R. out of land G.No. 264 ? .... NO II) Whether the defendants prove agreement (Exh. 239 ) dated 16/05/1994 ? .... NO III) Whether the plaintiffs prove that they were and are ready and willing to perform their part of the contract ? .... Does not arise in view of answer to point no. 1 in negative. IV) Whether the plaintiffs are liable to pay compensatory costs and compensation to the defendants ? .... NO 10 Mr. Katneshwarkar, the learned counsel by going through the material evidence oral and documentary, emphasized that the agreement of sale Exh. 157 produced by the plaintiff needs to be believed on account of following facts : (i) The said agreement is coming from the custody of plaintiffs ; (ii) The said agreement bears the signature of Pundlik i.e. the executant, Sanjay Uttarwar and Uttam, the witnesses. The signatures are not disputed. 7 (iii) The defendants could not give any plausible explanation as to in what circumstances all persons signed Exh. 157. (iv) The paper proclamation dated 20/5/1994 at Exh. 195 substantiates the execution of the said agreement Exh. 157. Further, the said paper proclamation is not objected by the defendants. (v) Exh. 157 is the original document of agreement to sale. The contents of Exh. 157 itself shows that the agreement to sale is regarding total land of respondents. (vi) The signature of Sanjay is consistent in the agreement, so also the sale deed but his signature does not appear in Exh. 239 i.e. the agreement produced by the defendant. The said agreement Exh. 157 contains the recital and reference of cheque, which supports agreement. The issuance of the said cheque, is not disputed. 11. According to Mr. Katneshwarkar, these facts unequivocally proves the agreement of sale and the trial Court has not considered this aspect. Mr. Katneshwarkar submitted that the trial Court viewed the whole evidence with a prejudiced mind in as much as the circumstances in favour of the plaintiff have not been considered at all. Mr. Katneshwarkar submitted that when the original Written Statement is filed, the theory of the another agreement Exh. 239 was not raised. There is no pleading that separate agreement was there. All these factors ought to have been considered. 12. Mr. Katneshwarkar further contended that even Sanjay Uttarwar in his deposition has accepted his signature on Exh. 157. As such, when all the 8 signatures on Exh. 157 are proved, then in such circumstances, the due execution of Exh. 157 ought to have been considered. According to him, the trial Court has unnecessarily laid much weight to the fact that clause 13 regarding the recital of payment of cheque is in different ink and that the words “ , ” are appearing in different ink. In fact, it is after the cheque was given, the same was written. So also, the words “ , ” in different ink would not affect the validity of the agreement. The same would not be relevant. 13. The fact that the sale deed was executed in respect of 2 Acres of land would substantiate that there was an agreement between the parties. The defendants could not prove the agreement of sale produced by them. According to Mr. Katneshwarkar, the agreement of sale at Exh. 239 produced by the defendant is a sham document and has not been proved. According to him, the said document can not be relied upon in view of following discrepancies : (i) The original agreement is not before the Court. (ii) There is no pleading about the agreement Exh. 239 in the Written Statement. (iii) It is submitted for the first time at the very late stage (iv) In the reply notice Exh. 47 given by the defendants, there is no mention of Exh. 239. (v) The document Exh. 239 produced by the defendant appears to be a typed copy and signature of Pundlik is not at the proper place. 9 (vi) The signatures of witnesses and names are absent. (vii) The document Exh. 239 is not proved by adducing secondary evidence. 14. Mr. Katneshwarkar submitted that as Exh. 239 is not proved and the transaction between the parties was very much evident, then in such circumstances, Exh. 157 is the only agreement between the parties and the same is proved by the preponderance of probabilities. He further submitted that the sale deed shows that the consideration of Rs. 1,68,500/- has been received in cash. Over and above that the Demand Draft of Rs. 75,000/- is issued. The same was the consideration for the remaining land after execution of the sale deed Exh. 40. The amount of Rs. 75,000/- has been deposited in the loan account after the execution of the sale deed for clearing the loan. The Demand Draft of Rs. 75,000/- dated 06/07/1994 is extra payment which shows readiness and willingness to pay the remaining amount of consideration for remaining land and as such there was no impediment to decree the Suit for specific performance. According to the learned counsel, the trial Court has viewed the whole evidence in a prejudiced manner. Just because the appellants are educated persons and have entered into various transactions of sale and purchase of lands, can not be a factor to appreciate the evidence in one way. 15. Per contra, Mr. Kasliwal, the learned counsel for some of the respondents contended that there is no pleading that Rs. 75,000/- was paid for further transaction as an earnest amount. The Examination-in-Chief of the 10 plaintiff was recorded on 23/7/1998 and was adjourned. Thereafter an amendment was made on 16/7/1999 and for the first time introduced the theory of payment of Rs. 75,000/- by Demand Draft as the amount for further transaction and thereafter his further Examination-in-Chief was recorded in the year 2002. The same is an after-thought story. He has submitted that perusal of the sale deed Exh. 40 and the evidence shows that the sale deed was drafted on 26/6/1994. The income tax papers were received on 28/6/1994. Still the sale deed was not executed and it was executed only on 6/7/1994 after receipt of Rs. 75,000/-. It is only after the receipt of total consideration amount, the sale deed was executed . Rs. 75,000/- is included in the consideration amount of Rs. 1,68,500/-. The evidence shows that the said draft of Rs. 75,000/- was prepared before 10.30 a.m. on 6/7/1994. Thereafter it was deposited in the loan account and thereafter the sale deed was executed. If Rs. 75,000/- would not have been the consideration for the said sale deed, then there was no reason to wait till 6/7/1994 to execute the sale deed as the sale deed was already drafted on 26/6/1994 and the income tax papers were received on 28/06/1994. He has further submitted that agreement of sale ( Exh. 157 ) produced by the plaintiff is a sham document and that can be vouched from the following circumstances : (i) In the sale deed executed between the parties Exh. 40, there is no reference of agreement of sale ( Exh. 157 ). (ii) The boundaries of the sale deed shows the remaining land of the defendant. If the transaction would have been for total land as is shown Exh. 157, then in the boundaries, one of the boundaries would be the 11 remaining land agreed to be sold to the plaintiff. (iii) The plaintiffs are experienced persons, who purchase and sale the lands frequently. The agreement is not executed on stamp paper. (iv) There are large discrepancies as has been rightly discussed by the trial Court. (v) Even the Consent deed and the affidavits of the other members of the family of Pundlik does not show that remaining land is also agreed to be sold. This shows that agreement of sale Exh. 157 was not executed. (vi) The signatures of Pundlik and the witnesses were obtained for Tipan ( rough sale deed ) to be presented before the Sub Registrar before presentation of the sale deed and the said signatures have been misused. 16. Mr. Kasliwal further submitted that the pleading and proof of readiness and willingness is absent. As such, even on that count, no decree for specific performance can be passed. To buttress his submission, relied on the Judgment of the Apex Court in the case of Manjunath Anandappa Urf. Shivappa Hansi Vs. Tammanasa & Ors. Reported in 2003 (3) ALL MR – 303 (S.C.) and Umabai and another Vs. Nilkanth Dhondiba Chavan (dead) by L.Rs. and another reported in 2005 (4) Mh. L.J. - 306. 17. Mr. Kurundkar, the learned counsel for some of the respondents 12 submitted that the agreement produced by the plaintiff does not pass the test of preponderance of probabilities. 18. Mr. Mukhedkar, the learned counsel for some of the respondents submitted that if the sale deed is perused, the reason for sale of 2 Acres land by Pundlik is made clear. The land is sold to improve the remaining land, which shows that there was no intention to sale the remaining land. This fact belies the theory of the plaintiff regarding agreement of sale of total land. If the total land would have been agreed to be sold, then the sale deed for 2 Acres of land ( Exh. 40 ) would not have contained the recital that the land is sold so as to make improvement in the remaining land. 19. With the assistance of the learned counsel for respective parties, I have gone through the oral as well as the documentary evidence on record. 20. In the present case, there are two agreement of sale on record, one agreement of sale ( Exh. 157) produced and relied upon by the plaintiffs and the second agreement of sale ( Exh. 239 ) produced and relied upon by the defendants. The fate of the Suit would depend upon the proof of Agreement of sale ( Exh. 157 ) produced by the plaintiffs. If the plaintiffs fail to prove the agreement of sale ( Exh. 157 ), then it is immaterial whether the defendants proved the agreement of sale ( Exh. 239 ) produced by them. It is the cardinal and fundamental principle of Civil Jurisprudence that the plaintiff has to either stand or fall on his own and can not rely on the weakness of the defendant’s case. 13 The Trial Court on appreciation of the oral and documentary evidence has come to the conclusion that the plaintiff has failed to prove the agreement of sale ( Exh. 157 ) and has denied the relief of specific performance to the plaintiffs. 21. The undisputed fact is that the defendants had sold 2 Acres of land from G.No. 261 vide registered sale deed dated 6/7/1994. The plaintiffs claim that vide agreement of sale ( Exh. 157 ) dated 16/05/1994, deceased Pundlik had agreed to sale the total 2 Hectors 75 R. land out of G.No. 264 situated at village Sangvi, Tq. and Dist. Nanded to one Shri. P.P.Mattewar and others. As per the said agreement of sale ( Exh. 157 ), Pundlik had agreed to sale the total land i.e. 2 Hectors 75 R. in one year for consideration of Rs. 95,000/- per Acre. The registered sale deed would be executed as per the amount of consideration paid. It is the plaintiff’s case that pursuant to the agreement of sale ( Exh. 157 ), sale deed ( Exh. 40) came to be executed by Pundlik. The purchasers, as per the sale deed ( Exh. 40) are Panditrao Pundlikrao Madrewar, Sow. Venutai Bhimrao Madrewar, Sow. Shalini Pralhadrao Gundale and Sow. Sunita Kishanrao Madrewar. The agreement of sale relied upon by the plaintiffs only mentions the purchasers as Shri. P.P.Madrewar, whereas the sale deed is executed in favour the aforesaid persons named in Exh. 40, whereas the present Suit is filed by Panditrao Pundlikrao Madrewar, Bhimrao Pundlikrao Madrewar, Sow. Shalini Pralhadrao Gundale and Kishanrao Pundlikrao Madrewar. The agreement of sale does not detail about the purchasers i.e. the persons who are the purchasers of the said land G.No. 264. If the sale deed ( Exh. 40 ) is said to have been executed pursuant to the agreement of sale ( Exh. 157 ), then the plaintiffs also ought to 14 have been the same persons, who have got the sale deed executed, otherwise the same would amount to ‘ novatio of contract ’ which is not permissible unless and until the defendants consent. It is not the plaintiffs’ case that the defendants had consented for the same. 22. Be that as it may, upon going through the evidence and the anamolies in the evidence, the Trial Court has held that the plaintiffs have not been in a position to prove the agreement of sale ( Exh. 157 ). I have minutely gone through the evidence on record. The sale deed ( Exh. 40 ) does not mention about the agreement of sale. If the sale deed ( Exh. 40 ) would have been executed pursuant to the agreement of sale ( Exh. 157 ), then at least one side boundary in Exh. 40 would have been the remaining land agreed to be sold to the plaintiffs. The same is not appearing in the sale deed. Even the recital of the sale deed shows that 2 Acres of the land has been sold by Pundlik for the purpose of improvement of his remaining land, which shows that the defendants had never agreed to sale the remaining land. If the agreement of sale ( Exh. 157 ) would have been executed for the total land admeasuring 2 Hectors 75 R., then the recitals in the sale deed would not have depicted the reason for sale as improvement of the remaining land. 23. The plaintiffs have harped more on the count that the plaintiffs had issued paper proclamation ( Exh. 195 ) on 20/05/1994. The same is not objected by the defendants. The plaintiffs had led the evidence of one Shrinivas Jaju to prove the paper proclamation. The said person in his deposition in stead of 15 proving the case of the plaintiffs, has in a way disproved the case. In his cross examination, he has stated as under, “ We have kept all news-papers from 1961 till today at our office for official record. I have not brought the original news-paper dated 20/05/1994. Except my bare words, there is no evidence with us to show that we have destroyed the draft handed over for publication of Exh. 195 as well as Exh. 156. One can easily print the news-paper like Exh. 195 within some hours ”. As such, though since 1961, all the news-papers are kept at the office for official record. The said witness has failed to produce the same on record, which leads to draw an adverse inference. 24. The plaintiff has harped on the payment of Rs. 75,000/- as an advance payment apart from the consideration of the sale deed. Whereas, the case of the defendants is that the Demand Draft of Rs. 75,000/- dated 06/07/1994 was in fact a part of the consideration amount of Rs. 1,90,000/- i.e. Rs. 20,000/- paid initially at the time of agreement and Rs. 1,68,500/- paid on the day of execution of the sale deed. According to defendants, the said Demand Draft of Rs. 75,000/- dated 06/07/1994 was part of the consideration amount paid on the said date i.e. of Rs. 1,68,500/-. It was the case of the plaintiffs that the said amount of Rs. 75,000/- was paid after the sale deed was executed and was an extra payment as the part consideration for the sale of remaining land. The plaintiffs contend 16 that the sale deed nowhere mentions the receipt of Rs. 75,000/- by Demand Draft. If the amount of Rs. 75,000/- by Demand Draft would have been part of the consideration amount for the said sale deed, then it would have found mention in the said sale deed. On the other hand, it is the case of the defendants that though the sale deed was drafted on 26/06/1994, it was only executed and registered on 06/07/1994 as the plaintiffs could pay the total consideration amount only on 06/07/1994 including the Demand Draft of Rs. 75,000/-. As such, it is only after receipt of total consideration amount, the sale deed was executed. It is not disputed by both the parties that the sale deed was drafted on 26/06/1994. The moot question is whether the amount of Rs. 75,000/- paid vide Demand Draft dated 06/07/1994 is extra payment or the part of the consideration amount paid while executing the sale deed ( Exh. 40 ) ? One thing needs to be considered that the plaint when it was filed, did not contain the recital of extra payment of Rs. 75,000/-. The Suit was filed in the year 1996, at that time, the plaint did not contain the recital that Rs. 75,000/- was paid for further transaction as an earnest amount. The Examination-in-Chief of the plaintiff was recorded on 23/07/1998 and was adjourned. Thereafter, after about a year, an amendment was sought on 16/07/1999 and vide the said amendment, introduced the theory of payment of Rs. 75,000/- by Demand Draft for further transaction and thereafter the further Examination-in-Chief was recorded in the year 2002. Even in the notice issued prior to the filing of the suit, no such averment is made in the said notice about payment of Rs. 75,000/- by Demand Draft was made for further transaction. Even on going through the depositions of the witnesses i.e. P.W. Manik and P.W. Maruti, it is seen that the said Demand Draft 17 was issued prior to 10.30 a.m. Working hours of the Nanded District Central Co- operative Bank, Mill Corner Branch, Aurangabad issuing Demand Draft, is from 8.30 a.m. to 10.30 a.m. and in the evening from 5.00 p.m. to 7.00 p.m. The said witness Manik has clearly admitted that, “ After going through Exh. 188 and 189, I can fairly say that the concern transaction took place in the morning shift ”.