Dismissed

Kartik Pd. Sah v. Sri Ganesh Kumar Yadav

Patna HC14 Mar 2013SA/61/2012

Case brief

AI extract

What is this about?

In a second appeal regarding specific performance of a sale contract, the Patna High Court held that the First Appellate Court's findings were not perverse. The Court ruled that the appellant bore the burden to prove the positive plea that the document was a blank paper signed under fraud, dismissing the appeal as it involved no substantial question of law.

What did the court decide?

The Second Appeal is dismissed as it does not involve any substantial question of law and the findings of fact are not perverse.

Kartik Pd. Sah Vs Sri Ganesh Kumar Yadav — Specific Performance | Patna HC (2013)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.61 of 2012

¶2

====================================================== Kartik Prasad Sah son of Late Mishri Sah, resident of Mauza Mithahi, P.S./Disitict-Madhepura.

¶3

(Defendant -Respondent).... .... Appellant Versus Sri Ganesh Kumar Yadav son of Late Hari Lal Yadav, resident of Mauza Madanpur Tola, Garib Tola, P.S./District-Madhepura. (Plaintiff-Appellant).... .... Respondent ====================================================== Appearance : For the Appellant/s : Mr. Madhav Roy Mr. Bijay Kumar Singh Mr. Girija Sharma For the Respondent/s : ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 4 14-03-2013 The second appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as the „Code‟) has been listed for hearing under Order 41 Rule 11 of the Code. The appellant is aggrieved by judgment and decree dated 04.11.2011 passed by the learned Additional District Judge, F.T.C.II, Madhepura in T.A. No. 55/2008 whereby he has allowed the appeal and set aside the judgment dated 17.07.2008 and decree dated 30.07.2008 passed by learned Munsif, Madhepura in T.A. No. 121 of 1995.

¶4

The appellant herein was the defendant before the Trial

¶5

Court. The suit was filed for specific performance of contract for sale on the basis of Mahadanama dated 02.04.1993 which was said to have been executed by the appellant in favour of the respondent for agreed consideration amount of rupees twenty five thousand in respect of the suit land and accordingly for a direction

¶6

Patna High Court SA No.61 of 2012 (4) dt.14-03-2013

¶7

2 / 7

¶8

to execute a registered sale deed in favour of the plaintiff after receiving rest of the amount of the consideration money within stipulated period.

¶9

Briefly stated, the plaintiff (respondent) alleged that being in urgent need of money, the defendant (appellant) approached the respondent and negotiated for sale of the suit land as mentioned in the plaint. The respondent agreed and accordingly the appellant executed a Zarbeyananama / Mahadanama (contract for sale) on 02.04.1993 (Exhibit-5) after receiving a sum of rupees fifteen thousand by putting his L.T.I. and also by making an endorsement in his own handwriting about having received an advance money in presence of the witnesses and handed over the said Exhibit-5 to the respondent. As per the respondent, it was stipulated in Exhibit-5 that the appellant would be executing the sale deed after receiving balance amount and would handover the Chirkut to the respondent. As per the case of the respondent before the Trial Court, he was always ready to perform his part of paying the rest amount and get the sale deed executed and for this purpose he approached appellants several times. As the appellant failed to honour the terms of contract, the said suit was filed by the plaintiff who is respondent in the present appeal. The appellant who was defendant before the Trial Court, contested the suit and filed his written statement denying the

¶10

Patna High Court SA No.61 of 2012 (4) dt.14-03-2013

¶11

3 / 7

¶12

assertion that he ever executed any Mahadanama in respect of the suit land after having received the advance money of rupees fifteen thousand. On the contrary, he took a plea that he had taken a loan of rupees of five thousand from one Umesh Prasad Yadav of village Mithahi and put his L.T.I. on plain stamp paper. Later on the amount was paid back to him and on demand of stamp paper, the said Umesh Prasad Yadav destroyed the same in his presence. It was further pleaded that Umesh Prasad Yadav was brother-in-law of the appellant and he in connivance with the respondent manufactured the false document which is being claimed as contract for sale dated 02.04.1993.

¶13

Learned Trial Court on the basis of rival pleadings framed altogether seven issues including issue No. V which goes to the root of the matter and reads thus:-

¶14

V. “Whether there was any agreement for sale of the suit land between the plaintiff and the defendant and whether any written agreement was executed by the defendant in favour of the plaintiff?”

¶15

The parties thereafter led evidence before the Trial Court

¶16

both oral and documentary. Witnesses for both sides were examined and documents were exhibited. Learned Trial Court dealing with the issue No. V came to the finding that position of the thumb impression and the writing only in the left side in three lines showed that the thumb impression was obtained on a paper

¶17

Patna High Court SA No.61 of 2012 (4) dt.14-03-2013

¶18

4 / 7

¶19

prior to writing and thereafter four lines of the writing have been safely made on the right side of the same. On this basis learned Trial court held that it cannot be said that thumb impression was given after writing the contents in Zarbeyananama / Mahadanama (contract for sale). Learned Trial Court also came to the finding that the plaintiffs could not establish the place of negotiation for sale and agreement to sale as alleged by him in the plaint and, therefore, he was not entitled to any decree for specific performance of contract. The plaintiff, who is respondent herein preferred appeal against the judgment and decree of learned Trial Court dated 17.07.2008 and 30.07.2008 respectively. On the basis of the records available and the submission made on behalf of the parties, learned First Appellate Court framed four issues all confined to the genuineness and enforceability of Exhibit-5 i.e., Mahadanama / Zarbeyananama (contract for sale).

¶20

From the judgment of the learned First Appellate Court it appears that after considering the various evidence on record it came to the finding that the Exhibit-5 had been executed by the appellant and the learned Trial Court was not justified to hold that it was not a genuine document. While dealing with the evidence led on behalf of the defendant before Trial Court, learned First Appellate Court held that the appellant (defendant) failed to prove that said Umesh Prasad Yadav, from whom the appellant is said to

¶21

Patna High Court SA No.61 of 2012 (4) dt.14-03-2013

¶22

5 / 7

¶23

have taken loan and to whom the plain stamp paper with his thumb impression was given was the brother in law of the appellant. This is to be noted that defendant developed specific case before the Trial Court that he has given his thumb impression on a plain stamp paper to Umesh Prasad Yadav from whom he had taken loan and that Umesh Prasad Yadav in connivance with the respondent No. 1 manufactured the said Mahadanama . The learned First Appellate Court took into account the fact that the appellant did not even examine the said Umesh Prasad Yadav or any other witnesses in whose presence the said loan amount was said to have been re-paid.

¶24

Mr. Madhav Roy, learned counsel appearing on behalf of the appellant has vehemently contended that the findings of the learned First Appellate Court suffer from the vice of perversity inasmuch as it shifted the onus of proof on the appellant whereas onus was heavy on respondent to prove his case of mode, manner and the circumstances in which the said Zarbeyananama / Mahadanama was said to have been executed by the appellant as developed in the plaint. He submits that the case of the respondent that stamp paper was purchased subsequent to date of negotiation between the parties stood demolished as in fact the date of purchase of stamp paper was much prior to the alleged date of execution of the contract for sale.

¶25

Patna High Court SA No.61 of 2012 (4) dt.14-03-2013

¶26

6 / 7

¶27

After having gone through the judgment of the learned First Appellate Court which is final court on finding of fact, I am of the view that the same cannot be held to be perverse as the findings are based on the evidence referred to in the judgment under appeal.

¶28

The submission on behalf of learned counsel for the appellant that the Appellate Court wrongly shifted entire burden of proof upon the appellant cannot be accepted for the reason that the defendant had to prove his case, positively developed by him to the effect that he had put his thumb impression on plain stamp paper which was handed over to the Umesh Prasad Yadav who according to him was brother-in-law of the respondent.

¶29

I am of the opinion that when the evidence adduced by the Plaintiff showed that the document was properly executed by the parties after completing it in all respect and yet the defendant took the plea that he had not executed any document but had signed only a blank paper, burden was upon him to show that fact. If a positive plea was taken by the defendant that his signature was obtained by fraud, burden would be upon him to prove this fact. This is the mandate of Section 101 of the Indian Evidence Act, 1872. A party who wishes to the court to believe in existence of a fact and to pass a judgment on that basis is required to prove that fact.

¶30

Patna High Court SA No.61 of 2012 (4) dt.14-03-2013

¶31

7 / 7

¶32

In view of the above, I do not find any perversity in the findings of fact recorded by the learned First Appellate Court. The appeal doesn‟t involve any substantial question of law. The present Second Appeal, therefore, does not merit admission and is, accordingly, dismissed.

¶33

(Chakradhari Sharan Singh, J.)

¶34

Saif/-

Kartik Pd. Sah v. Sri Ganesh Kumar Yadav

Case brief

What is this about?

What did the court decide?

Kartik Pd. Sah v. Sri Ganesh Kumar Yadav

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Manoj Kumar Vs Shri Durga Narayan Shrivastava and Ors.

Brahmanand Singh @ Banti Singh Vs The State Of Bihar

Jagdish Singh and Ors. Vs Chandrika Prasad and Ors.

Ayodhya Pd. Vs Panwarti Devi and Ors.

Md. Nasim Ashraf @ Md. Nasim Ashraf Ansari and Ors. Vs Smt. Sita Devi and Ors.

Mahendra Kumar Vs The Chiarman Cum Managing Director and Ors.