1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.121 OF 2001 Regency Exports Pvt. Limited, 1419, Maker Chambers, Nariman Point, Mumbai – 400 021, through its Director Shri Rajesh Laxmandas Kaura, Aged about 52 years, Occu – Business, Residing at 1419, Maker Chambers, Nariman Point, Mumbai – 400 021. .... Appellant V/s. Smt.Siddawwabai Shivappa Kumbhar, Aged about 77 years, Occu – Agriculture and Household, Resident of 1255, Bhadrawati Peth, Solapur. ..... Respondent Mr.P.M.Pradhan i/by Mr.S.V.Sakhare, for the appellant. Mr.S.G.Deshmukh with Mr.P.M.Mengane, for the respondent. CORAM :P.B.MAJMUDAR & R.V.MORE, JJ. DATE : OCTOBER 05, 2009 ORAL JUDGMENT : ( PER P.B.MAJMUDAR, J. ) :- 1. This appeal is directed against the judgment and order passed by the Joint Civil Judge, Senior Division, Solapur, in Special Civil Suit No.953 of 1998. By the impugned judgment, the suit filed by the present appellant/plaintiff for the specific performance of the suit 2 agreement is dismissed by the trial court. 2. The appellant herein is the original plaintiff. The case of the appellant/plaintiff is that in the year 1991, due to financial crunch the defendant wanted to sale the suit property to the plaintiff. The defendant had agreed to sale the suit property to the plaintiff, for which an unregistered agreement was executed between the parties on 29-10-1991. The plaintiff had paid Rs.6,00,000/- by a cheque bearing No.50151 drawn on Vijaya Bank, Solapur, towards the earnest money. It is also the case of the plaintiff that in view of the Urban Land Ceiling Act, the defendant had executed an irrevocable power of attorney in favour of the plaintiff on 06-05-1991. The sale price was fixed at Rs.32,22,000/- and the defendant agreed to sale the suit property in two equal parts. Accordingly, the plaintiff had paid first installment of Rs.16,11,000/- and had got executed a registered sale deed on 03-11-1998. The plaintiff thereafter was put in possession of the half portion of the suit property i.e. western side. 3. According to the plaintiff, the defendant agreed to sale remaining half portion of the suit property to the plaintiff for a sum of Rs. 16,11,000/- within three months from the aforesaid sale deed dated 03-11-1998. Towards the sale price of the suit property for Rs. 16,11,000/-, on 03-11-1998 the defendant had adjusted an amount of Rs. 3,00,000/- only which she had taken as advance on 29-10-1991 out of the 3 total amount of Rs.6,00,000/-. She further agreed to adjust a sum of Rs. 3,00,000/- at the time of execution of sale deed for the remaining portion of the suit property. Since the defendant tried to back out from her promise, the plaintiff was obliged to give notice in the newspaper on 24-11-1998. It is the case of the plaintiff that the plaintiff is ready and willing to perform his part of the contract. It is the case of the plaintiff that the defendant has committed breach of the agreement, as out of the fixed sale price the plaintiff has already paid Rs.3,00,000/- to the defendant as an advance. On the aforesaid averments, suit for specific performance was instituted by the present appellant/plaintiff. 4. The suit was resisted by the defendant by filing written statement at Exh.21. The defendant denied the factum of unregistered agreement for sale. She also denied the averment about receiving a sum of Rs.3,00,000/- towards consideration. It is the case of the defendant that the so-called irrevocable power of attorney is executed for transaction of partnership firm. The defendant denied the averments in the plaint regarding the agreement to sale in connection with the remaining portion of the land for Rs.16,11,000/-. According to the defendant, the plaintiff is a businessman and she signed the document for doing partnership business. It is the case of the defendant that the plaintiff is not an agriculturalist and therefore, he is not entitled to purchase the suit 4 property in view of the provisions of Section 63 of Bombay Tenancy and Agricultural Land Act. On these and such other grounds, the suit was resisted by the defendant. 5. The learned Trial Judge framed various issues at Exh.22 arising out of the pleadings. The learned trial Judge after appreciating the evidence on record came to the conclusion that the plaintiff has failed to prove that the defendant has agreed to sale the suit property to the plaintiff. The learned trial Judge found that the plaintiff has failed to prove that after lifting of Urban Land Ceiling Act, the price of the suit property was fixed at Rs.32,22,000/-. The learned Trial Judge also found that the plaintiff has failed to prove that he agreed to purchase the suit property in two installments. The trial Judge however, held that the plaintiff has paid in all Rs.16,11,000/- to the defendant, but the plaintiff has failed to prove that the defendant has agreed to sale remaining portion of the suit property for Rs.16,11,000/-. The learned trial Judge also found that the plaintiff has failed to prove that the defendant agreed to adjust Rs.3,00,000/- at the time of execution of sale deed regarding remaining portion of the suit land. The trial Judge accordingly dismissed the suit against which the original plaintiff has failed the present appeal. 6. The learned counsel for the appellant has assailed the decision of the learned Trial Judge by contending that oral agreement had 5 taken place between the parties in the year 1991 for purchasing the entire land, for which a consideration of Rs.32,22,000/- was fixed. It is submitted by the learned counsel for the appellant that the defendant had executed sale deed of half of the portion of the western side on 03-11-1998 and at the time of execution of the sale deed, it was agreed that remaining portion was to be sold to the plaintiff after adjusting Rs. 3,00,000/- and on that basis, it was agreed between the parties to sale remaining portion of the land within the stipulated time. The learned counsel for the appellant further submitted that it was agreed that the defendant shall execute sale deed for remaining half portion of the suit premises within three months from 03-11-1998, as provided in the sale deed dated 03-11-1998. He further submitted that since the defendant tried to back out from her assurance, the plaintiff was constrained to file the aforesaid suit for specific performance of the agreement which is incorporated in the sale deed dated 03-11-1998. 9. On the other hand, the learned counsel for the respondent, submitted that the learned trial Judge has rightly found that the plaintiff has failed to make out any case for specific performance so far as the disputed land is concerned. The learned counsel for the respondent further contended that the learned Trial Judge after considering the evidence in its proper perspective has rightly dismissed the suit for specific 6 performance. 10. We have heard the learned counsel for the appellant and respondent and also gone through the oral and documentary evidence on record. It is required to be noted that in the plaint, the case of the plaintiff is based on the unregistered written agreement. But it is not in dispute that the said agreement has not been produced on record at all. The plaintiff during his examination-in-chief has switched over to the theory of so-called oral agreement in the year 1991. It is in variance with the case of the plaintiff in the plaint. It is not in dispute that no written agreement is produced on record. In para No.2 of the examination-in- chief, the plaintiff had stated that in the month of October 1991, the defendant was in need of money and an agreement for sale was executed between the parties and the plaintiff had paid Rs.6,00,000/- to the defendant by way of earnest money by way of cheque of Vijaya Bank, Solapur. However, the said agreement was oral. In examination-in-chief, plaintiff has stated that in the year 1998, as the Urban Land Ceiling Act, was repealed, the parties thought it fit to execute the sale deed in respect of the suit property and for that purpose, the plaintiff approached defendant on 03-11-1998. The price of the entire land was fixed at Rs. 32,22,000/-. It has come in the evidence of plaintiff that in order to enable the plaintiff to arrange for money, sale deed in respect of 1-H 33 7 Ares of western side was executed. The plaintiff also deposed that at that time, Rs.3,00,000/- was adjusted at the time of execution of the sale deed dated 03-11-1998. According to the plaintiff, it was agreed between the parties that the balance of Rs.3,00,000/- will be adjusted at the time of execution of the sale deed of the remaining half portion of the suit land. 11. In the cross-examination, the plaintiff conceded that on 03-11-1998 he was not having sufficient amount to purchase entire land and therefore, sale deed for half of the land was executed. The plaintiff unequivocally admitted in the cross-examination that there was no written agreement for sale. He further stated in the cross-examination that the claim of the plaintiff is not based on the agreement which took place in the year 1991, but it is based on the agreement which took place in November 1998, for which a reference is made to sale deed at Exh.45. In the cross- examination, the plaintiff admitted that there was no written agreement for sale on 08-09-1998. He further stated that in the year 1998, neither oral nor written agreement was executed in respect of the suit land. The plaintiff conceded in the cross-examination that he cannot assign any reason as to why it is not pleaded in the plaint that Rs.3,00,000/- were given to the defendant in the year 1991. He further admitted that he has not obtained any income tax clearance certificate and a sum of Rs. 3,00,000/- were paid in the year 1991 by the plaintiff from his personal 8 account and not from the company’s account. 12. To lend credence to his version, the plaintiff examined Mr.Nagesh Trimbak Degaonkar (P.W.2), a Bond Writer at Exh.55 and Mr.Chandrahas Shetty (P.W.3), an employee of the Vijaya Bank, Solapur. The said witness was examined to prove the certificate at Exh.31, which was issued in respect of S.B.Account No.3908 standing in the name of Rajesh Kaura, Director of plaintiff company. On behalf of the plaintiff, sale deed of the half portion of the land was produced on record at Exh.45. 13. The defendant also stepped into the witness box. In her evidence, she has stated that she is an illiterate lady. She has denied the fact that she has executed any agreement for sale in respect of the suit land. She has denied the fact that she has executed any agreement to sale half portion of the suit land to Mr.Rajesh Kaura. The defendant has also examined his son Mr.Mallikarjun Shivappa Kumbhar (D.W.3) at Exh.84, who has also denied the factum of execution of agreement for sale. 14. From the evidence on record, the question which emerges is as to whether the defendant ever agreed to sale remaining half portion of the land to the plaintiff. In this behalf, as we have discussed earlier, there is a variance in the plaint and the oral evidence of the plaintiff regarding the agreement of sale. It is the case of the plaintiff in the plaint that unregistered document was executed between the parties in the year 9 1991, but the same is not produced on record and therefore, in his evidence, he has tried to change his version that it was oral agreement. The case of the plaintiff is that cause of action for filing the suit arose when the defendant executed sale deed for half portion of the suit property. As per the evidence of the plaintiff at Exh.38, in the month of October 1991, defendant had executed agreement for sale and the plaintiff paid Rs.3,00,000/- to the defendant by cheque drawn on Vijaya Bank as an earnest money. As per his evidence, at the time of execution of the sale deed dated 03-11-1998, the defendant agreed the sale price of entire land at Rs.32,22,000/-, out of which plaintiff had earlier made payment of Rs.6,00,000/- to the defendant and Rs.3,00,000/- was adjusted at the time of execution of the sale deed dated 03-11-1998. It is required to be noted that in the cross-examination, the plaintiff has stated that agreement to sell the entire land was finalized in the year 1991. 15. It is not in dispute that except the sale deed at Exh.45, no separate agreement regarding the disputed land had ever taken place. The foundation of the claim of the plaintiff is based on the so-called oral agreement of 1991. It is pertinent to note that the sale price of the remaining half portion of the land is not mentioned in Para No.19 of the sale deed, which according to the plaintiff is an agreement of sale for remaining half portion of the suit land. Considering the evidence of the 10 plaintiff, in our view, except from the version of the plaintiff, there is no cogent evidence on record led by the plaintiff to prove that the defendant had ever agreed to sale remaining portion of the land at the time of executing the sale deed at Exh.45. Reading Clause 19 of the sale deed, in our view, it is not possible for us to come to the conclusion that any specific terms and conditions of agreement for sale in respect of the remaining half portion of the land is forming part of the said clause. Even otherwise, once a sale deed regarding western portion of the land is executed, the transaction of sale deed can be said to have been completed in all respect. In our view, it cannot be said that the sale deed at Exh.45 includes the sale deed of half portion as well as agreement to sale regarding remaining half portion of the suit land. Moment the document at Exh.45 can be said to be a sale deed of half portion of the land, it is not possible for us to hold beyond that it also provides sale of further half portion of the land. Once a sale deed is executed, the transaction comes to an end and the sale deed is only in connection with the western portion of the suit land and not beyond that. No evidence can be led for reading something more than that what is written in the sale deed at Exh.45. From the evidence on record, it cannot be said that the agreement of sale is also incorporated in the sale deed at Exh.45. The sale deed is in connection with the half portion of the land, for which plaintiff and 11 defendant have executed said document and it cannot be said that additional agreement to sale incorporates the sale deed for remaining half portion of the land. The say of the plaintiff in our view, is not believable at all in this behalf. As pointed out earlier, the case of the plaintiff in the plaint, is based on an unregistered document for sale, which includes half of the portion which is disputed in the present proceedings. As against this, in the oral evidence, the plaintiff in variance to his case in the plaint. In our view, the trial Judge has rightly appreciated the evidence on record and has rightly come to the conclusion that the plaintiff has failed to make out his case regarding agreement to sale of the remaining half of the portion of the suit property. The learned trial Judge has rightly found that when the case of the plaintiff is based on an unregistered agreement for sale of 1991, and when the plaintiff has not produced the same on record, the only reasonable inference can be drawn is that an unregistered document may not have any recital of sale, and if the same was produced on record, it could have falsified the case of the plaintiff. 16. In any case, in view of Section 92 of the Indian Evidence Act, the Court cannot look into the oral evidence once a contract is executed in writing. In our view, the plaintiff has failed to prove his case about the agreement in connection with the half portion of the land. Considering the evidence of the bank employees, it only shows that 12 Mr.Rajesh Kaura had issued a cheque of Rs.3,00,000/- on 04-05-1991 in the name of defendant, on which she had put an endorsement that the same may be paid to Ramesh Pogul and accordingly, payment was made to Mr.Rakesh Pogul. The said transaction took place in the year 1991. The plaintiff had not made any attempt till 1998 in this behalf. In our view, the learned Trial Judge has rightly found that the defendant never agreed to sale remaining half portion of the land to the plaintiff. In this behalf, the observations of the learned trial Judge reads as under : - 24. Defendant has deposed at Exh.70 she stated that she never executed agreement of sale in respect of suit land and she did not receive any consideration amount from plaintiff. In cross- examination she has admitted that it is written in the WS that half portion of suit land was sold to plaintiff. However, the plaintiff must prove his case by adducing independent evidence and not take disadvantage of weakness of the case of defendant. The plaintiff cannot add any additional oral terms and conditions of the so called agreement for sale. It appears that the plaintiff had failed to prove that defendant had agreed to sale the Eastern portion of suit land to plaintiff firm. Finding of issue No.1 is in negative. The plaintiff has failed to prove the agreement of sale dated 29-10-1991. But plaintiff has proved that he paid Rs. 6,00,000/- by cheque to defendant. Finding of issue No.2 is that only proved the payment of Rs.6,00,000/- by cheque. It is true that the defendant had executed sale deed dated 03-11-1998 in favour of the plaintiff. The above sale deed Exh.45 only shows that the sale price of half portion of suit land was fixed at Rs. 16,11,000/-. However, the above sale deed is not the agreement for sale in respect of remaining half portion of eastern side. The plaintiff has failed to prove so 13 called agreement of 1991. Hence, the finding of issue No.4 is in negative. Considering the above finding of issue No.1, 2 and 4 and discussion of the said judgment, it appears that the story of plaintiff that the defendant agreed to sold entire suit land for Rs. 32,22,000/- is not accepted in absence of proof of agreement of sale in question. Finding of issue No.3 is also in negative. 17. Granting of relief under Specific performance Act is a discretionary one and unless appropriate evidence is led before the Court, no decree for specific performance can be granted. In the instant case, looking to the evidence on record, it cannot be said that the plaintiff has made out his case for specific performance. On the contrary, it is clear that the defendant had never shown any willingness to sale remaining portion of the suit land to the plaintiff, but the defendant executed a sale deed in favour of the plaintiff for half portion of the suit land. Considering the totality of the evidence on record, we do not find any infirmity in the said order of the learned trial Judge and on appreciation of oral and documentary evidence on record, in our view, no other view than the one expressed by the learned trial Judge is believable. Accordingly, we do not find any substance in this appeal and on appreciation of evidence, the plaintiff is not entitled for a decree of specific performance of the agreement. The appeal is accordingly, dismissed with no order as to costs. 18. At this stage, the learned counsel for the appellant 14 submitted that at the time of admitting the appeal, the plaintiff has deposited Rs.16,11,000/-with the Registry of this Court. In view of the dismissal of the appeal, the Registry shall refund the said amount to the appellant along with accrued interest if any. ( R.V.MORE, J. ) ( P.B.MAJMUDAR, J.)