1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1578 OF 2005. Ukhaji s/o Zinga Mahajan - APPELLANT VERSUS 1) Lotan s/o Asaram Patil & Ors. - RESPONDENTS ***** Mr.SP Deshmukh,Advocate for Appellant; Respondents duly served. ----- CORAM : K.U.CHANDIWAL, J. DATE : 23rd April, 2010. PER COURT : 1) Heard learned Counsel for the appellant extensively. Respondents though served, no participation. 2) Dismissal of Special Civil Suit No. 3/1994 by learned Civil Judge, Senior Division, Dhule and confirmation of the same in Regular Civil Appeal No.95/2000 by the learned 2nd Ad-hoc Additional District Judge, Dhule dated 30th April, 2005, is questioned by the plaintiff/appellant. 2 3) A suit for specific performance of contract in respect of agricultural land was filed. The appellant canvassed that the defendants agreed to sell the suit property for an amount of Rs.75,000/- and pursuant thereto, on 8.11.1991, defendant no.2 and defendant no.1, as Karta of the family, signed the document/Sauda Pawti in favour of the plaintiff by receiving earnest of Rs.30,000/-. The balance amount was to be paid up to 30.12.1993. The plaintiff has subsequently paid the additional amount of Rs. 30,000/- to the defendants on 4.7.1992 and cleared the grocery bills of Mayuri Provision Store by payment of Rs.10,500/- as per the receipt passed by said dealer for and on behalf of the defendants. Consequently, only an amount of Rs.4,500/- left to be paid to the defendants. The denial by the defendants to execute a sale- deed has resulted in issuance of notice dated 2.7.1993. The defendants replied the same on 5.10.1993 and refused to execute a sale-deed. 4) The defendants set up a defence, the plaintiff is a money-lender, the transaction was not of an absolute sale. The purported agreement of sale dated 8.11.1991 was not either signed as to its contents. The defendants had signed the document when it was blank and particularly at a bus-stand. 3 5) The plaintiff before the learned Judge asserts that since the defendants accepted their signatures on the document, the document stands proved. The learned Judge directed the plaintiff to examine any witness apart from him to prove the agreement of sale. The scribe could not be examined. The plaintiff informed, the attesting witness is also not available to be examined. However, surprisingly for the plaintiff the defendant brought the attesting witness – Bhika Patil to whom the plaintiff avoided to examine. The attesting witness Bhika Patil blast the case of execution of agreement of sale in the manner it was canvassed and coined by the plaintiff. The attesting witness did not dispute about his presence, however, in categorical terms illustrated, it was a blank document signed by the defendant at the bus-stand including the attesting witness. Plaintiff did not raise a case to allege, any distortion on the part of the witness as he was win over by vendors. The fact remains, in spite of there being Sauda-pawati (agreement of sale) Exhibit-64, it is certainly found by the learned Judge to be shrouded with several clouds as to missing of the dates; as to over-writing on the signature part and even dis- similarity in the signature of Annapurnabai. 4 6) With the assistance of learned Counsel, I had occasion to peruse the original agreement of sale (Exhibit-64) and I endorse the view expressed by both the Courts about the doubts to the said agreement of sale to translate into actual transaction of sale of agricultural fields. 7) The payment to the grocery shop owner is established by examination of the witness of the shop- Nemichand Shah. There is no cross- examination on the part of the defendants denying this situation. However, such payment of Rs. 10500/- by itself will not germane into acceptance of agreement of sale. 8) The learned Counsel for the appellant, during the course of submissions, claimed that Ground Nos. IX, XII and XIX, which read as under, would be the substantial questions of law between the parties. “IX. The Courts below have failed to appreciate the fact that Respondent no.1 is an educated person and the story put forth by respondents that their signatures have been obtained on blank paper, is not reliable and trustworthy. XII. Whether the Courts below were right in arriving at conclusion that from cross-examination of attesting witness nothing has received to support the case of appellant, when his statement to the effect that he 5 put his signature on blank paper at S.T.stand as attesting witness, is itself sufficient to hold that the witness is making false statement and as such, his evidence is liable to be discarded in toto ? XIX. Once the signatures on the agreement of sale have been admitted by respondents, does the onus not shift on respondents to prove that the transaction between the parties was different from that as written in the document ?” 9) In order to indicate that the transaction between the plaintiff and defendant was leaning to money-lending activities, the defendant – Annapurnabai has placed on record two papers, at Exh.129A & B purported to be the accounts in the hand-writing of plaintiff Ukhaji. In unequivocal terms the defendant has stated that, these two documents/accounts are in the hand-writing of the plaintiff effected in her presence. Perusal of these accounts/statements indicate, that the version of defendant – Annapurnabai needs acceptance, as she has stated that the document was written by the plaintiff in her presence, the hand-writing therein is of the plaintiff and she identified the same. The objection raised by the plaintiff to exhibit these documents (Exhibits- 129-A and 129-B) is rightly negatived by the learned Judge. The obverse of the document, unfortunately for the 6 plaintiff, provides certain calculations. The amount of Rs.4520/- is multiplied by 4 and again by 7 and divided by 100, which calculates to figure of interest Rs.1267/- This is exactly interest, added by the plaintiff to make the total figure of dues as Rs.5787/-. This adds to the theory as propounded by the defendant about her withdrawal from the plaintiff time to time. The case tried to be put-forward by the plaintiff, is rightly refused by the learned CJSD. 10) The grounds referred above would not be available to be coined, as the initial burden, to prove the document, is on the plaintiff. Even if there is an admission by the defendant about signing of blank document, in terms of Section 101 of the Evidence Act, it’s initial burden of proving the document is not discharged. The legal right and liabilities are to be discharged by the plaintiff himself, which the plaintiff has miserably failed. The theory of repayment, though canvassed by the defendant, is not proved consequently there operates a decree against the defendant to pay Rs.38520/- with interest @ 6% p.a. Thus, the learned Judge did not sway away even with the contention of the defendant of repayment of entire amount borrowed by her. The observation of the learned Judge, confirmed by 7 the first Appellate Court is in tune with the legal position and the evidence adduced by the parties. It will not evolve a substantial question of law as tried to be formulated referred above. Second Appeal is sans merit, it is dismissed. (K.U.CHANDIWAL) JUDGE bdv/sa1578.05