Dismissed

Onkarnath v. Lrs of Gangaram

Rajasthan HC15 Mar 2021CSA/35/2019

Case brief

AI extract

What is this about?

This second appeal against a first appellate order dismissing a suit for specific performance is dismissed. The High Court upheld the lower court's finding that the agreement to sale was not executed due to lack of signatures/thumb impressions from the plaintiffs/respondents and supporting witnesses, rendering the document inadmissible. The judgment concludes that the first appellate court did not

What did the court decide?

The second appeal is dismissed. The judgment and decree of the first appellate court are upheld.

Onkarnath Vs Lrs of Gangaram — Specific Performance | Rajasthan HC (2021)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Second Appeal No. 35/2019

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Onkarnath S/o Shri Rawatnath, Aged About 79 Years, R/o Bamblu, Tehsil And District Bikaner.

¶4

----Appellant

¶5

Versus

¶6

Lrs Of Gangaram, S/o Shri Tikuram (Since Deceased Through His Lrs)

¶7

Nanu W/o Late Shri Gangaram, Bamblu, Tehsil And District Bikaner.

¶8

Mamraj S/o Late Gangaram, Bamblu, Tehsil And District Bikaner.

¶9

Rampratap, Bamblu, Tehsil And District Bikaner.

¶10

Mirga W/o Mamraj, D/o Late Gangaram, R/o Himmatasar, Tehsil And District Bikaner.

¶11

Sugni W/o Jetharam, D/o Late Gangaram, R/o Himmatasar, Tehsil And District Bikaner.

¶12

Sajna W/o Padmaram, D/o Late Gangaram, R/o Upani, Tehsil Sridungargarh, District Bikaner.

¶13

Sita W/o Nanuram, D/o Late Gangaram, R/o Bidasariya, Tehsil Nokha, District Bikaner.

¶14

Smt. Badhu W/o Ramkishan, D/o Late Gangaram, R/o Upani, Tehsil Sridungargarh, District Bikaner.

¶15

----Respondents

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For Appellant(s) : Mr. Dalip Singh Rajvi. For Respondent(s) :

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HON'BLE MR. JUSTICE ARUN BHANSALI Order

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15/03/2021

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This appeal is directed against judgment and decree dated 17.11.2018 passed by Additional District No.1, Bikaner (‘the first appellate court’), whereby, the appeal filed by the respondents against the judgment and decree dated 13.11.2007 has been

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(2 of 6)

¶21

[CSA-35/2019]

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allowed and the decree for specific performance passed by the trial court has been set aside.

¶23

The suit for specific performance was filed by the appellant – plaintiff inter alia with the submissions that respondent – Gangaram was in requirement of Rs.35,000/- for his personal and household expenses and, therefore, for the agriculture land comprising in Khasra No.594 admeasuring 11.34 hectare, an agreement to sale dated 14.5.2001 was entered into and it was agreed that the sale deed would be executed in five months. When the defendant was required to get the sale deed registered, he started avoiding and on 3.11.2001 refused. It is claimed that the plaintiff was ready and willing to purchase the stamps and pay the registration fees and, therefore, prayed that sale deed be got registered in his favour and the possession of the land be handed over to him.

¶24

Written statement was filed denying the execution of the agreement. It was claimed that the same was fraudulent and concocted and that the same did not fall within the definition of an agreement and, therefore, the suit be dismissed.

¶25

Based on the averments of the parties, the trial court framed four issues on 5.2.2003. Whereafter on 19.8.2004, two more issues were framed. On behalf of the plaintiff, two witnesses were produced and the agreement was exhibited. On behalf of the defendant, two witnesses were produced and report of expert was produced as Ex.A/1. One more document i.e. death certificate of Kishannath was produced.

¶26

After hearing the parties, the trial court came to the conclusion that the plaintiff from his evidence and that of Narayannath and from cross-examination of Sahiramnath has

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(3 of 6)

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[CSA-35/2019]

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proved that the defendant had executed the agreement after receiving Rs.35,000/- and placed his thumb impression from which, Sahiramnath and Kishannath signed as witnesses, which was admitted by Sahiramnath. The plaintiff was always ready and willing to perform his part of the contract.

¶30

The issue regarding the agreement being concocted was decided against the defendant. On the admissibility of the document, it was found that as the deficient stamp duty alongwith penalty has been paid, the objection had no substance. Ultimately, the suit was decreed alongwith costs for specific performance of the contract.

¶31

Feeling aggrieved, the defendant filed first appeal.

¶32

The first appellate court after hearing the parties decided the appeal issue-wise and came to the conclusion that the document (Ex.1) only bears the thumb impression of the transferor and signature / thumb impression of transferee was not there. In absence of signatures / thumb impression of the transferee on Ex.1, the execution of the document was found suspicious.

¶33

It was indicated that the absence of signatures / thumb impression of the tansferee has not been explained. The plaintiff has failed from his evidence to prove that the document was executed by defendant after receiving Rs.35,000/-. The court also found that the agreement dated 14.5.2001 show Sahiramnath and Kishannath as witnesses, whereas, Kishannath had died prior to 14.5.2001. The court did not accept the plea that Kishannath, who had witnessed the agreement was different from one who had died on 13.12.1997. The statement of PW/2 Narayannath was not believed by the appellate court and as oath commissioner, who had certified the agreement (Ex.1) was not produced, the

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(4 of 6)

¶35

[CSA-35/2019]

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appellate court came to the conclusion that the plaintiff had failed to prove the execution of the agreement and on account of its finding on the said aspect, reversed the finding recorded by the trial court on issue no.1.

¶37

On the aspect of readiness and willingness, it was found that no concrete evidence was produced to indicate the readiness and willingness. The appellate court also came to the conclusion that defendant had proved that the document (Ex.1) was concocted. Ultimately, based on its findings, the judgment and decree passed by the trial court was reversed and the suit was dismissed.

¶38

Learned counsel for the appellant made submissions that the appellate court was not justified in reversing the judgment and decree passed by the trial court. Submissions were made that it was proved by evidence of the witnesses that the agreement in question was indeed executed by the defendant after receiving the consideration as indicated and, therefore, the appellate court merely based on conjunctures, has reversed the finding recorded by the trial court, which finding is wholly perverse and as such give rise to substantial question of law.

¶39

I have considered the submissions made by learned counsel for the appellant and have perused the material available on record as well as record of both the courts below.

¶40

A bare perusal of the agreement (Ex.1) indicates that the same purportedly bears the thumb impression of defendant – Gangaram and also signatures of Sahiramnath on both pages and that of Kishannath on the last page. The document is also attested by an oath commissioner. As already noticed, the document did not bear the signatures of the appellant. For proving the said agreement, the plaintiff examined himself and one Narayannath.

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(5 of 6)

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[CSA-35/2019]

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The document (Ex.1) neither bears signatures / thumb impression of the plaintiff nor that of Narayannath.

¶44

The appellate court after analyzing the evidence of Narayannath, came to the conclusion that his presence at the time of execution of the document was doubtful on account of the contradictions noticed in his cross-examination as to who all accompanied him from village for execution of the document. The witness to the document Sahiramnath appeared as witness of the defendant and denied his signatures on the document for the purpose of agreement to sale and indicated that the signatures were got for the purpose of making an application on behalf of the villagers to the electricity department, he also indicated that the other purported signature on the agreement as witness was that of his father Kishannath, who had died in the year 1997, who always put his thumb impression and did not sign.

¶45

Once the document was purportedly thumb impressioned by Gangaram – defendant and the same was witnessed by Sahiramnath and Kishannath and was bearing the seal and signatures of a oath commissioner and none of those persons supported the execution of the document and the appellant though contended that the Kishannath was not father of Sahiramnath but was some other Kishannath and did not produce him and the oath commissioner was also not produced in evidence, the first appellate court rightly came to the conclusion that the execution of the document was not proved.

¶46

The finding, despite attempts made by learned counsel for the appellant to show the perversity, cannot be termed as perverse in any manner.

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(6 of 6)

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[CSA-35/2019]

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Once the execution of the document i.e. agreement to sale itself is not proved as found by the first appellate court, the outcome of the suit / appeal is natural and, therefore, the acceptance of the appeal by the first appellate court cannot be faulted on any ground.

¶50

In view of the above discussion, the second appeal has no substance. The same is, therefore, dismissed.

¶51

(ARUN BHANSALI),J

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23-Sumit/-

Onkarnath v. Lrs of Gangaram

Case brief

What is this about?

What did the court decide?

Onkarnath v. Lrs of Gangaram

Case brief

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What did the court decide?

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