OF CHHATTISGARH AT BILU First Appeal No. 1861200 Ra Dulae an aner V. Mahendra Pal and another SingleBench: HOn’bie Shriilip Raosheb Deshmukh, J. st fo ? Po r Judgment: 3 I £8400 :Dilip Raosaeb Deshmukh r‘k Judge. ‘ 17"“ 1 r I Qa’: ‘ ‘HIGH COURT ASPR 3 m r d dth s p é d h “) . W 3 \ W afR'” HIGH COURT OF CHHATT!SGARH BILASPUR Before Han ble Shn Justice Dmp Raosaheb Deshmukh z F. A. No.186 of 2003 . Ram Dulare Sio. Bhagwandas, aged about 34 yearS, Caste-Yadav, Resident of Shaktivihar, in front of Krishna Taikies and Risali Bhatha, Azad Market, near-: Kanhaiyamurti,’ Risali, Bhilai,‘ Burg (C.G.) Harihar Yadav S/o. Bhagwandas. aged 45 years, Caste-Yadav, Occupation: Dairy Farm, Resident of Shativihar, in front of Krishna Taikies and Risali Bhatha, Azad Market, near : Kanhaiyamurti, Risaii, Bhiiai ' Durg (C.G.) Versus Mahendra Pal /o. Ram Lakhan Pal, aged about 35 years, Resident of Maitri Nagar, Bhilai, Durg (C.G.) State of Chhattisgarh, Through; Collector, District Collectorate,‘ DUrg 7 (C G) CWIL APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE ’ rent: Shri B P Mlshra counsel for the appellants Shri Pam! Shrivastava counsel for respondent No 1 Stir: Aknil Agrawal P L for respondent No 2/State J U D G M E N T (Delivered on this 3i“: day ofAugus 2007) Being aggrieved by the judgment and decree dated 27.08.2OG3 passed in Civil Suit No. 25A of 2902 by the 8‘“ Additionai' District Judge r l APPELLANTS DEFENDANTS , RESPONDENTS S Pes ‘ ag; Burg, gfahkmg spec§f§c gerfcrmance of ‘L‘ne comfact, the apaeiiamisfdeferadants have pfe?erred this first appeal. 2‘ Br§ef fac’ts are that ‘i'ne x’esponden% Ne£lg3§a§mi§€ msiimied & CW SUE? for S§e$ific pen‘ormai‘ice of contrast b§eadin§ that on 24%2.‘:9§4, the angaeiiant Nc‘wdefemant has; agreed to se‘a law Kh.Nc.é83f8 araa Q3132 amass s§tuaiad in VEHage Ré$a§§, revenue circ%e Burg {hazemafwr referfed fa ES ibg I‘ Suit Eamc‘i) f6? El CO??Si§efa§GYI Of RS.lb,uGO:’-, a af‘5.8? ha‘v‘mg {LCQNEQ a ‘ §$.5Q,QQO/- as earneSt money and had ex&CLI€ec5 em Ekramama EXP? H: was agreed that we regisi'ered sa3e wet} weuEd be execu‘ied by :he appeiiam Na’lfdeferxdani an 31121995 aftei' :"eceivimg 3h i'amaimng somsideration of R$.25,£300/—. The srespoadem Najfpbimiff was mi? m aciuaé poseeesiora 0f the suit Sand ’w the appe§iaef§ Ne.1fdefendant en 24.?2.1§94V Shane the appeilant No‘wdefendant 03:6} no: execuie the sa§e deed eespéte reeeated requeets, the wepomdem Ne.?!p§a§m§§f sewec‘a a mime da .s. mibiéca‘i‘ion or: 2.7}Q98 in ‘ihe cEa§2y "5ain'ik :aaska?‘i Net‘ic was not ee‘rved as the whes’ea‘oeuts a? me aepeEamIdefeedan‘t No1 were n0? kmwn Gm 1G.7.1§95, the appe§§ant No.1ldefendam‘ sent a notice aHeging i‘qat the ag¥eement aileged to have been executed by htm on 241.21%4 was a forged document The teepondentl’ptaiet7tt was eiwe‘ys ready and wttti‘ng to eertetm the contract. Gn 193.19%, the eepettamsiee‘aendeme e V C ‘i t - rx Led 1.7;?99$ an ihe agpeE§ani£defemdani Na? and age made a -a i,‘ eiseoesessed the tespondent No,1f;ntaintitt by makieg unauthorized consttuctten over the euit teed. On theee ptemtses, the respm‘actent zto.1,p,aimift 3 I l e ptayeu y- nt £tor specific ,eei‘formence of the contract attd etso } Ctor eetng m1 ‘m eossession of the suit temt. Rettef 0t permanent tmunction tr.) J x: )U resiram ‘zha apwe3Eantsiée§endaat$ from §r3terfe¥iag win: 4d! 'ni$ passessim was aiss prayéai 3 The ap§ei§ant$fdefer1danis {asiS‘ted ihe suit denyiag 4.L- me giaén‘: ahega‘tmm m fafo am}. pieaded mat tha defendam No.1 did mi eiihey enter mic 02’ exewi’e any ageemem with ‘he rasponéem Nefwpiainii§f or: 24.?2.1§94 and a¥so did not recewe Rs.5G,QOQ!-. H was aiso pieadeé ‘chat ihe wit lam-d was the property of g'oim Hindu Famibf am‘ couia‘ m3? be a§§emzed by iiie appenani Nakéidefemdam alane. The appei§antydefendam$ weye cariymg a dairy business om the suit iand grid had“ ’EE: she-huffaioes iii ihe daiiy‘ Upon wading a“ mbiicaiiori made by N9 amendem N0.1/§iain€i§f, the agpeiiants/defendanis served a riotice on i£?.G7.’i9% argon the respowdeatNoiipiainiiff arid had aiso denied iha ailegaticas made by the piaintii‘i by making a gubiisaiimz. The ie$p0nderii No.1/‘Qiaintifi‘ waS never pui in p0$5€ssim of the saii iamd. As me Diaimiff vias. or: ‘ihe ba$is of a forged documem, iiyiiwg i0 somehow grab “the suii iami, ’ie was moi enii‘tied to iihe z'eiiei' seught fer. 1 i a, £1 The ii’iai Cour? framed as many as six issues“ The iespana’emt Neeilpiain'tiff, besides examining himeeii‘, examined the auexstieg WI messes a? ihe Eki’amama ExP.1 dated 24.?2.1§94 ie‘ Eii'endia Kama? a-w {3‘W3 3rd Nemichend 9W4 and eieo adeuced the evidence 0f Uihas miiaie RWE, hand wri’iii’ig expert; i0 prove ihai the decumerri EXPK} dPiee ‘24.?2i 994 was signed by the appeiiarii No.1 fdefericiani we\\ 5. Gr; the Diher hand, i’ne aepeiiaatei’dei‘endanrs examiriezi themselves and deriieci executiori of the agreement dated 24.;4‘1 2A / v he a‘meadam .r. affixed on EXE? exam§ned by a handwriiing expert—Samgay J. Koiwa§ and ahtamea reps? rw signami'e on E PA §s no? in ’ihe hamdwrilmg é m 4 3.!me appeham , . Na?!de§emfamt. Ls a§$o got ihe d§sputed signaéure an Llme revewe siamp x dateci 10.93.19§7 whereia it wa$ opined iha‘i the dispu‘ieci O) examined $hem$elves before the lower courg on 223.2093 am Qmhion was examwefg )m! J.the lower court on ruecom iha? the¥=e was mo substance in ihg x H. n. §S ai$o pertineni "ia note that afier he appeHan‘ts/défendants had V‘Ai 4" Augaaan and pames 5hau!d compmmise. Ku appeam iha’k in View a? Such ar; epiniorz expfessed fox; ihe lower Court aeiihm‘ the anpeEian‘t$Jdafendan€5 exami'ned the hwdwriiing expert nor d§cl the lawgr court thiak it maessaw, in thre: inéerest of jus‘é§ce mud in View of a c0n%:a§y opinion expreaaed by the haadwriiing expert examined by ihe respondeet/piaintifg‘, to Summon Sanjay i Kotwai as a court 7.. Ai‘chough the scribe of the documei‘it Eki’emama EXP.1 was mt examizaeci and the afies’aing wimesses Birendie Kumai P.W.3 arid Nemiehand P. “hi4 did noi' support the piaiatiff’s case: the iower Com? gamed a decree for specific performance oi £ a.the contract 0e the ground iha‘i: ihe teeiimony of Birencira Kumar FAME and Nemieharid PANA eeeiained an element of feisehced end ii: aepeered ihat despite admii‘ting uLaeir signete‘ies on EXPJ zine}; were faveurimg €he appeiiemsfcieiendame. A S k Reiyieg cm :i‘ae tesiimony of handwriting expert Shii aLimes } Aiheie .a 1 P.W.2 emci making em ovei'aii aeeessmen’c of the evidence, it was heid iri geragraeh 3i} that the testimeny of Biiendra Kumar did iridicate that the eepeiient Nehdefehdant had} after reeeivihg Rs.50,G§Ci~ es advance, i v _ agreed to sel! éhe suit iaijd to i‘ne respandeh‘a’piaintif? and had axecuied the documei’a‘t EXPA. &, Shri BFMishra, learned coumei f9? the apgeHantsldefeiwdants ai’gued that the miding recerded by the lower Court regammg mac? a? axecuuan o; thn agreement EXP " by ihe appeearat Ne 1/ efenéam ’5 perveyee. it was submtted ma: if the appeuan‘; Nejiéefemdam wee y'eaéy emd wi5§ing t0 seH “the suit ianef fer; a eerasieemti ’ o. '5‘: In OQLm ‘3 fee reeeeeéenii’pmimiif an 24.?213994 am had fecewed R55Q§30i~ as advance arid ha-j pui the :“espondeni Na’ilpiaimtifga §n poseeseieri ef fee eu‘Et mad {m 24.?2.19Q4, ihere wee he aeceesw; 0 eieamg u: * g’ ‘le saie eeed fer meme “wen a vear e an 3E 12 £5 3i was fuz-‘ther O ew ibmi‘ited teat *‘eere wee no ewfadee e ‘: ehew iha‘i ta e mspmdent time, asut m c a1 eepsees cw ef § e wit Eand e m ed counee} m” the aegsel!antsfdefendams :ed ihai the iee‘iimeny Qf the p!a§ntif§ in paragraeh 2:5 bf? m mam a; my deubt that the document Ex.P.1 was a ferged decumeat beeause it wee a d by the respondent No.1z‘piaimiff iha’: megeh} er: the basis of Ehe aemzon of rhe name of he appe§§am Mai/defendant m weed ietiers beiow ihe signatufe, the respondent Mai/maimif? had sta‘ied ihai the e§gnamfelbelonged to appe§lant Ne.1/de§eadani it was a§eo stated by the reseorident Nejiptaintift that he hart no knowtedge as t0 who had typed the deeument‘ Aitheugh the feseondent Nettlptaintiff deposed'that there was omy one stamp affixed on the Ex‘Pt, a pewsal of the e‘oeumeht EXPA showed that ahethet stamp athxed on it had been removed and a 2a “, 2 the aggeez- s fendw }! M S"- * d e haw stamp ai poriEm ‘A i0 A’ was affixed. Learned caunse? argued thai “the ieatimony of Birem’ra Kumai’ RWB ih paragraph 6 left n0 mom far any dcubt that The mcumen’i was a farged document because this witneS$ i admi‘riea 3m? the resgmadeni No.’i/g§aimiff had taken h§5 Sigraatwe a? hiS resideace and ha<§ fmhe? admitzed in paragraph 5 i‘na‘i *he appe!§ant Nofaf-igfemdant d§d not azign in ‘ms pmwnce. On these premises, hf was afgueé that the plaiatifg‘ rim mt came to the Court Wi‘th dean hands am was he? eniiiied to Ehe discretienary reiief fer epeeifm eemrmance of canirac’c‘ Reiiance was piaced 0n Cheagimi Sfhayofh 'fhawism v, §€239§a$h §a§e§§rish£aiq i‘vair, MR 233% Kera§a 23‘ (£3 v)L a ‘e respordent Nehpiaintiff aygued in support of €he imaughed jwjgmeré whhe comending that both the withesaes Ekehdra Kumar RWS and Nemichand P.W.4 were dose m the appehan‘tsldefendams aha were b ' deli SLipgar-essing the tmth. Boti admitted their stghatures on ExR1 arc! else the fest that the appeliants/defehdante were tn heed Qt meney. 15 u. was urged that the tower court had, or: a proper apareciation at Mme evidence and ah the attehdthg citeumstances, cortechy tecorded the ‘finathg in. faveur of the respondehtfpiaihtiff whtie grantthg a dectee tor "\\,, seesific petfm'mahce of contract. Reliahce was placed on Qattatraye a. Eahghath Qogalrae Kawatheaai; {dead} by hts iegal feegvesematives On “the other hand, Shri Rajeev Shrivaetava, %eamed counsei fer ‘fw \. t \h am? othei’s, NR EQ'H 5C 254$: 10. ‘ Having eonsidered the rivai submieatons, i have perused the record Eh view of the fact that the appetbntsfdefendante had denied execution or' the armament EXP? and pieaded that it was a forged decumeht, the bwderg of provmg execuiion o§ ihe dccument dated 24121994 by Qhe appeiiant No‘1ldefemdam was entirely 0n the respehdem No.1!giaintiz‘i A perusai of the document EX.P.1. shows that 4' is a typeé dscumem. At partion ‘A t9 A’, a revenue siamp is aiiixed bearing a siwamz'e and anm‘her revenue $?.amp, which had been affExad on the document, had been removed. m paragraph 2-5 o: his iestimony ihe respondent §’\}o.’§!p§aimiff did not Ghee? any expianatian and iigd that there was only one smmp aff§xed em the EXP? «e it. Execution of the document by the appeiiant Nejieiefendant comet be ptevee’ either by exams’nirig the atteetirtg Witnesses or the sctibet The tespcndeet Nett/piemtitt admitted in paragraph 25 that the aepeitent N0.1/defendant had got the document typed fmm eemewhere am’ so he did mt know as to who has! typed the doeument. Obvtouety such a statement was made to evotd exptaining mom-examination at the scdbe by +xhe respondent No.1/piamtttf. Q?1 12. Attesting withesses Bitehdra Kumar RWE and Nemtchand P.W.4 did not eupport the i'espohdentlptaintt’d i'egardmg execution of the m h). ,5 greement to set} the suit tend by the appeiient No.1idefenciant eh 4.t2.te§4i The teetimomy of Bitendra Kumat P.W.3 showe in paé’egraph e that no ttaheactioa’: toek ptace in hie presenee ahd he Signed me decumeht as a witness on the mete say Gt the tespondeetiptatetit‘ft me further depeeed in paragraph 6 that the t‘espondentz‘piaimttf had came te his house tet ebtaihing his siditeturee Simiieriy, Nemichamd ?.W.4, whe is a inerber, depesed that in hs shep some teike had taken piaee betweeh ,\ I I 7v. éhe mspondenwlamtiff and €he appeHant No.1/defendan't relating to some money transacticn in which the appemm N9.1Idefendant had demanded Rs.15,000J- — Rs20,000/- from the fespondent No.1/piainti‘ff which he assured i0 pay at his reSidence. He specifically denied that the appeilant Ne.1idefenda§1t had agreed i0 sen the suit !and to the respondenvpiaintif‘i far a consideration of RSJSQOO/x En this manner, the tes‘iimony of the at‘kesting witnesses Birendra Kumar PW3 and Nemichand P‘WA did not sngopon the reenanden’c/plaintiff in any manner far prov§ng execuiian 0f decument EX.P.1 by the responéeni No.1/defendant on 24312.1 994. 13‘ As regards the payment 0f Rs‘50,00Q/— as part considera‘éion ‘ko the apeeiiantefdefendani on 24.12.1994, the testimony of respondeni Na?!p§aintiff—Mahendfa Pai is unworthy of credit. %n paragraph 26, he admitted that he was a teacher by profession and used to give the entire tuition fees to his father, who had provided Rs.50,050/— to him. Father of the ptaintitf was not examined. No evidence was ied to shew whether such a huge amount was withdrawn from some Bank or why the {espondent Not/plaintifiwas interested in purchasing the suit land. 14‘ The whoiiy unrebutted testimony of the appeiiant No.11‘detenoiant Ram Duiare that he is conducting dairy business on the suit land is substantiated by the photographs of the suit iand tiied in the suit. The reshondent Netlpiaintift admitted in paragraph 15 that the appeiiantsidefendants were running a dairy business on the suit iand. Thus, the suit iand was not vacant land on the date of agreement and had a fuli-fiedged dairy estabiished on it. Therefore, the testimony of respondent»No.1/piaintift that on 24.12.1994 the appeiiantsfder’endants i')\ i {$ had awreed o Sea an epen p§ece o Eanrj ”:0 him and sema Qpem vacani r:— pm? had been :r. $asured p's'iar i0 im execumn of the agreemen‘i is whoily Lime§§ab§a I $ ! 15‘ i’i is a§so peftmen't to note th a respandema'mami§'§ mad sec: no widence i0 Show thai he was wt in pos5ess§0n of the Sui€ lam! cm hJ4.?2.’1994 arid was dispowessed m the year 19% by ihe .L (D @‘g'eiiaraE/defendania. Thi$ fu'rther re’na’er$ ihe caSe m” the ?e$poridentx’pia§ntiff unwmi‘hy of any credit A$ againsi this, the ies%imeny of the appe§§ant No.1lda'fendam Ram Dulare that he did not execui‘e any agraemem (m 24121994 and a§so cm not recave Rs.50!OGQ/- from rewandent/piaintiff i$ wheihg um‘ebutted in crass-examination The iowei' {3mm has, an mei’e conjectures am! surmises, recorded a gxecuiim 0‘? ihe ag'eemeni to seii the wit iand by the appeliam N0.1/defei’xdar1t was prayed Wherea$ there §s m iega§ evidence 9r: {esom‘ “ac: subs€am§aie such a f§nding. The a’indiEQ remrded by ihe ioxwr Court is thus pewe‘vw and is Hame i0 be set aside. i6. 1': aieo needs i0 be noticed that whiEe 3anjay J. KetwaE, the handwetmg expef: of the appeHameg’defenclams, had submaéed a repcx? 3h favour of me agee§ianiefde§endaam another handwritmg expert Le. Uihas Aihale had sabmmed a report h“: favour of ihe respondea’c NeilpEaintie‘. 'f’nus bath exeem were suppcrténg ihe ease of iheir ciien'ts. Exeminatior; a? questiooed ciocumen‘ts 'ey a handwritieg expem is a science which ie we§§ estabEshe‘d ye? the vew faoi met boih experts had expressed dhxergeh‘t opihion om the same document rendefed such reports uhwoa'ihy of credh‘; The iowe? Gem: before prehouhdng judgment, a€so ought not '10 5 L9 have p§aced it on record that ‘ihe suit iacked subsiame. in the fasts and circumstances the “ma; Gear? before piacing any reiiamce at? the te$t§mony 0f U Athale F’V‘ ought t0 h‘we summoned Saway I Kom a cm‘rt MmeSs in aide? to arrive aia :amper camiusica and far §0ing w) arm} just ue betweer: the pa¥tia3 AJ. Xm "ihe {esult ihe agpea! is ailawed‘ The impugmed judgmem and éecree is set aside. The suit i3 dismissed 1n the facts am ckcumsiances, pariie$ sha?! bear their awn costs‘ x M ‘ mp Raosaheb Deshmukh z Judge w \. 7 \ Sd/— Anjahi ‘ I ‘ ‘