1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No.402/2009 ( Smt. Shakuntalabai Zade through L.Rs. ..V/s.. Maroti Barbate & another ) ------------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ----------------------------------------------------------------------------------------------------------------------- Mr. A.P. Padhye, counsel for the appellants. Mr. S.S. Murthy, counsel for the respondent no.2. Coram : F.M.REIS, J. Dated : 26th February 2010. Heard the learned counsel for the appellants and the respondent. 1. This is an appeal challenging the judgment and decree dated 8th of May 2009 passed by the learned District Judge-II, Nagpur in Regular Civil Appeal No.237/2005 whereby the appeal preferred by the appellant challenging the judgment passed by the Civil Judge (Junior Division), Ramtek, in Regular Civil Suit No.100/1974 dated 31st March 2005 came to be dismissed. 2. The appellants are the legal heirs of Vishnu Zade who was the original plaintiff. 2 Originally the plaintiff had filed Regular Civil Suit No.100/1974 for specific performance of the contract to execute the sale deed of the suit property in view of the agreement dated 19/6/1974. The suit field admeasuring 4.40 acres of the Survey under No.253 situated at Mouje Amdi, P.H. No.23, Taluka Ramtek was agreed to be sold for total consideration of Rs.6,000/-. It is further their case that the sale deed was to be executed within a period of three months from the date of the said agreement. A sum of Rs.1,000/- was received by the respondent as earnest money and the balance amount of Rs.5,000/- was to be paid at the time of the sale deed. It is further the contention of the appellant that the respondent failed to execute the sale deed within the period of three months and as such a registered letter dated 31st August 1974 was issued calling upon the respondent to come to Amdi so as to enable them to proceed to Ramtek for the execution of the sale deed. It is further their case that the respondent no.1 and Hiraman failed to turn up til 18/9/1974. Thereafter Vishnu proceeded to Ramtek on 18/9/1974 and enquired whether the said Hiraman and the respondent no.1 had visited the office of Sub-Registrar but as they did not turn up to execute the sale deed, he had filed suit for specific performance of the said 3 agreement on the ground that the appellants were ready and willing to execute the sale deed in the alternative to refund of Rs.1,000/- which was paid as earnest money was claimed by the appellants besides interest and Rs.2,000/- on the account of damages. 3. The original respondent said deceased Hiraman filed his written statement resisting the claim of the appellants and disputing the execution of the agreement dated 19/6/1974. It is further case of the said Hiraman that at the instance of his son when he was in Agra on pilgrimage, his thumb impression was obtained on the stamp paper with misrepresentation that the same was required to withdraw the amount from the bank for his medical treatment. At that point of time said Hiraman was very old and his thumb impression was obtained by misrepresentation, fraud and undue influence. It is further his case that the said paper appears to have been used for the execution of the disputed agreement for sale. It is further his contention that said Hiraman was exclusive owner of the property and he never intended to sell the suit land to the appellants. It is further his case that the said Hiraman never saw the plaintiff and by collusion with the said son disputed agreement came to be executed. He 4 further disputed the receipt of any amount from the appellants and further claimed that he is the exclusive owner of the suit property. The respondent no.2 also filed written statement disputing the claim of the appellants. The said Kamlabai is the niece of said original defendant. It was her contention that said Hiraman being a sole owner of the suit property executed a Kararnama dated 28th July 1967 in her favour and subsequently a gift deed was executed on 23rd September 1974 which was duly registered before the competent authority. It is further her contention that the appellant had forcefully taken possession of the suit field by committing a trespass and that respondent no.1 had deserted the Hiraman for several years. It is further her contention that said Hiraman had no interest in the suit property whatsoever and the claim of the appellants that the gift deed dated 23/9/1974 is not executed was expressly denied. 4. After framing the issues and recording the evidence, the learned Civil Judge (Junior Division), Ramtek by judgment and decree dated 31st March 2009 dismissed the suit filed by the appellants. The learned Judge on appreciating the evidence on record came to the conclusion that the appellants have failed to 5 prove that the said Hiraman and the respondent no.1 have entered into an agreement to sell the suit land for a sum of Rs.6,000/-. The learned Judge found that the appellant on the date of the execution of the disputed agreement dated 19th June 1974 was not in possession of the suit field. The learned Judge further held that the evidence of P.W.2 was not reliable and trustworthy. The learned Judge on examination of the documents found that the thumb impression of said Hiraman was taken by fraud. He further observed that the thumb impression has been taken on typing matter which creates a doubt as to whether the agreement was prepared thereafter. Considering the admitted fact that the said Hiraman as well as respondent no.2 were illiterate, the learned Judge found that there was a doubt created about the execution of the said agreement as it was not established that the contents of that agreement were read over to the executor before the thumb impression was put on it. The learned Judge on considering the evidence of P.W.3, who was the attesting witness, held that it creates a doubt about the execution of the agreement in his presence. The learned Judge further found that there was no conversation about the agreement before the said attesting witnesses prior to the execution of the agreement. The 6 learned Jude disbelieved the evidence of P.W.3 and found that the appellants had failed to establish the agreement of suit land for Rs.6,000/- and Hiraman had accepted a sum of Rs.1,000/- as earnest money. 5. While dealing with the issue as to whether the appellant had shown readiness and willingness to perform their part of agreement, the learned Judge found that the letter at Exh.67 was not a carbon copy and disbelieved the same was sent on 31st of August 1974. The learned Judge further held that there was nothing on record to show that the appellant was ready and willing to perform his part of agreement and consequently, held that the appellant had failed to establish the readiness and willingness on his part to execute the sale deed. 6. The learned Judge after examining the evidence on record came to the conclusion that the thumb impression of Hiraman was obtained by playing fraud and that the gift deed was duly proved as the attesting witnesses had been examined in another suit bearing No.434/1997 between the same parties and the deposition were brought on record along with Exh.161. 7 The learned Judge further held that in view of the proviso to section 68 of the Evidence Act and considering that the deed of gift was duly registered there was no necessity to call the attesting witnesses again to prove the execution of the said deed. The learned Judge further held that the deed was produced in R.C.S. No.44/1997 which was between the same parties and the same was admitted by the brother Ratnakar and the deed was produced before the Court. In view of the report of the Tahsildar the contention that Kamlabai was not an agriculturist came to be rejected. The contention of the appellant that the gift deed was sham and bogus came to be rejected as no evidence was adduced to substantiate the said contention. The learned Judge further held that there is no pleading in the suit that the property was ancestral and therefore, considering the evidence on record the learned Judge came to the conclusion that the said gift deed was a legal document and was duly executed and was valid in the eyes of law. The suit filed by the appellant came to be dismissed. 7. The appellants preferred an appeal before the learned District Judge at Nagpur bearing appeal No.237/2005. While disposing of the said appeal by judgment dated dated 8/5/2009 8 the learned District Judge has upheld the findings of the leaned trial Judge. The learned District Judge found on appreciation of the evidence that the evidence of P.W.3 could not be believed. The learned Judge further held that said Hiraman was illiterate person and as such failure to explain the contents of the document creates a doubt about its existence. The learned Judge further found that the claim of possession raised by the appellant was a false contention. The learned Judge confirmed the findings of the trial Court in respect of the letter dated 31st of August 1974. The learned Judge further found that the letter dated 27th September 1974 does not reflect the said contention and that the appellant had failed to show any evidence that the appellants have remained present in the office of Sub-Registrar. Consequently, the learned Judge disbelieved the contention of the appellant that he was ready and willing to perform his part of agreement. As far as the dispute with regard to the gift deed is concerned, the learned District Judge found that the gift deed was duly proved considering that the same was duly registered and the Clerk of the Court was examined to prove the certified copy of the deed which was exhibited in the proceedings. Relying on the judgment of this Court reported in 2006 (1) 9 Mh.L.J. 333 in case of (Mohd. Afsar Samsher V/s. Khurshid Bano Ayub) the learned Judge found that if the adverse party had an opportunity to cross examine the witnesses and the issue is substantially the same, the certified copy of such depositions is admissible. The learned Judge as such held that the respondent rightly relied upon the certified copy of the depositions produced in the suit. So far as the contention of the appellant that the attesting witnesses were not examined, the learned District judge has rejected the said contention in view of Section 68 of the Indian Evidence Act. After re-appreciating the evidence on record the learned District Judge dismissed the appeal preferred by the appellants. 8. Being aggrieved by the said judgment passed by the learned District Judge, the present second appeal has been preferred by the appellants. The learned counsel for the appellant has submitted that the deed of gift has not been duly proved as according to him the Courts below were not justified to dismiss the production of the original deed of gift. It is further his submission that the attesting witnesses have not been examined and as such the gift deed has not been duly proved and consequently, there is a substantial question of 10 law which arises in the present appeal as to whether the gift deed could have been considered by the Courts below. The learned counsel further submitted that as the attesting witnesses have not been examined the execution of the gift deed has not been established. The learned counsel further submitted that the findings that the agreement was obtained by fraud are perverse. No other contention was advanced by the learned counsel for the appellants. 9. On the other hand, the learned counsel appearing for the respondent no.2 has supported the judgment passed by the Courts below. He has further submitted that all the contentions which are being raised by the learned counsel for the appellants have been duly considered by the Courts below and the same are rejected. On the contrary, the deed of gift was filed in R.C.S. No.434/1987 wherein the appellant is also a party and the same was exhibited in presence of the appellant. He further submitted that a certified copy of the gift deed which was exhibited in the said suit was duly proved by examining the Court official. The learned counsel further submitted that the Courts below have rightly come to the conclusion that the appellant had failed to 11 establish the execution of the agreement and further there are concurrent findings of fact that agreement was executed by fraud committed on the deceased Hiraman. It is further his contention that in a second appeal this Court cannot interfere in any concurrent findings of fact. 10. Upon hearing the learned counsel for the parties and on perusal of record, I find that there are no substantial question of law which can be considered under section 100 of the Civil Procedure Code. Admittedly, both the Courts below have found that the existence of the alleged agreement is doubtful. Both the Courts have relied upon the cogent evidence on record to come to the conclusion that the appellants have failed to establish that the gift deed is bogus and sham. These findings have been recorded after appreciating the evidence minutely on record. In fact the learned counsel for the appellant was unable to point out any perversity in the said findings of the Courts below with regard to the claim of the appellant regarding the rejection of the claim of the appellant about the existence of the said agreement as well as the findings that the thumb impression was taken by fraud and misrepresentation. The learned Jude has 12 examined the alleged agreement and found that the thumb impression was on the typed script and further found considering the that the said Hiraman as well as respondent were illiterate, the recital of said agreement were not read over to them. The Courts below have found that the appellants have failed to establish about the receipt of sum of earnest money. The contention that they were in possession of the suit property pursuant to the agreement is also disbelieved by the Courts below. These findings of fact on the basis of evidence cannot be interfered with by this Court in a second appeal under section 100 of the Civil Procedure Code. 11. Regarding the remaining contention of the learned counsel that the gift deed cannot be relied upon, I find that the Courts below have rightly relied upon the said documents to come to the conclusion that the deed of gift was a valid document in view of the proviso to section 68 of the Indian Evidence Act. There is no requirement to examine the attesting witnesses to prove the deed of gift which is duly registered. The original gift deed was not produced by the respondent no.2 but the same was produced in another suit between the same parties and was duly proved. The certified copy of the said gift deed was produced on record 13 from the record of the said suit. The appellants have cross examined the said witnesses and nothing has been demonstrated to disprove the certified copy. Apart from that the depositions of the attesting witnesses of the gift deed have been duly proved in view of the above judgment of this Court. No fault as such can be found in the judgment passed by the Courts below in relying upon the gift deed produced by the respondent no.2. 12. In view of the above, I find that there is no substantial question of law which arises in the present appeal. Both the Courts below have arrived at findings of fact after appreciating the evidence on record. No perversity could be pointed out by the learned counsel for the appellants in the findings of fact by the Courts below. There is no merit in the present appeal and consequently, the same stands summarily dismissed with no orders as to costs. Judge. Tambaskar.