JUDGMENT
J. Chelameswar, J.
1. Aggrieved by the judgment and decree of the learned Single Judge in C.C.CA. No. 191 of 1997 dated 7.2.2002 the present appeal is filed by the respondents therein, who were plaintiffs in O.S. No. 1287 of 1989 on the file of the IV Additional Judge, City Civil Court, Hyderabad, which was decreed on 31.7.1997.
2. The appellant herein filed the above-mentioned suit against the deceased first respondent herein initially for the specific performance of an agreement of sale dated 31.3.1986 under Ex.A-1 executed by the deceased first respondent in favour of the plaintiff-appellant herein. The Trial Court by its judgment and decree dated 31.7.1997 decreed the suit. On appeal in C.C.C.A. No. 191 of 1997, the learned Single Judge of this Court was pleased to allow the same. Hence, the present LPA.
3. The sole defendant/first respondent herein died during the pendency of the suit After filing written statement, respondents 2 to 4 were brought on record as legal representatives of the deceased first respondent herein by an order of the Trial Court dated 11.3.1997 in I.A. No. 1769 of 1996. The learned Single Judge recorded at para 6 of the judgment that during the pendency of appeal, fourth defendant died and his legal representative is impleaded as fifth respondent.
4. In substance, the case of the appellant herein is that the first respondent herein approached the appellant herein in the year 1983 and borrowed an amount of Rs. 40,000/- on 15.7.1983 with a promise to repay the said amount within three months. As the deceased first respondent was unable to repay the said amount, he agreed to sell the suit schedule property for a consideration of Rs. 1,50,000/- and further agreed that the amount due from the first respondent is to be adjusted from out of the sale consideration referred to above. Accordingly, ExA-1 was entered into and on the date of the agreement a further amount of Rs. 40,000/- was paid by the appellant herein. It is further alleged in the plaint that the first respondent agreed to receive the balance consideration of Rs. 70,000/- within a period of one year and convey the property. It is the case of the appellant that though he was willing to perform his part of the contract, the first defendant never came forward to convey the property. Therefore, the appellant got issued two notices on 27.3.1987 and 2.3.1988, marked as Exhibits A-3 and A-4 respectively, followed by telegram dated 26.3.1989, marked as Ex.A-2, demanding the specific performance of the agreement. The first respondent filed written statement wherein he admitted that he approached the appellant herein for a loan and in fact borrowed the amount of Rs. 20,000/- from the appellant. In the said context he was made to sign on number of blank papers which, according to the first respondent, were utilised for fabricating the suit agreement. The 3rd defendant also filed a separate written statement wherein he also put forward the theory that the appellant herein having obtained the signatures of the first respondent on blank papers. The other defendants adopted the same written statement
5. The following undisputed fact emerges out of the pleadings that there was a transaction of borrowing by the deceased first respondent from the plaintiff sometime in the year 1983. With reference to the defence that signatures were obtained on blank papers at the time when the deceased first respondent borrowed money from the appellant herein, the Trial Court held as follows:
“DW1 admitted in cross that in the year 1982 his father borrowed Rs. 20,000/-from the plaintiff. Ex.A-1 is the stamp paper of 1986. He denied that his father signed on Ex.A-1 after reading over the contests therein after obtaining the sale consideration thereunder. The defendants have not explained how the plaintiff obtained ExA-1 which is a stamp paper of 1986 when the plaintiff alleged to be obtained the signature of D1 on bond forms in 1982 and that if the ExA-1 is concocted it would be certainly of the year 1982 but not of the year 1986.”
6. However, the learned Single Judge, in our view, recorded an erroneous finding that the defendant denied the signatures of the deceased first respondent on Ex.A-1. The defendant never denied the signatures of the deceased first respondent on Ex.A-1. On the other hand, as already noticed, the case of the defendant is that he admitted the signatures of the deceased first respondent but put forward the theory that some signatures of the 1st respondent were obtained on blank papers when he borrowed the money from the appellant.
7. In our view, it is settled provision of law that when once the signatures are admitted the burden to establish that the document is a fabricated one is heavily on the defendants. The learned Single Judge, however, opined “the burden is on the plaintiff to show that it has been executed by the deceased, first defendant.” In our opinion, such a view is wrong. On the other hand, the Trial Court recorded a categorical finding that Ex.A-1 is a document recorded on stamp paper of the year 1986. Admittedly the money lending transaction was of the year 1982. The theory of obtaining signatures on blank papers does not fit in, in view of the above-mentioned facts.
8. One of the circumstances which weigh the learned Single Judge to reserve the judgment and decree of the Trial Court is Ex.A-1 document, which is not attested and no independent witness is examined to establish the fact of the execution of the said agreement
9. Agreement of sale is not a document which is required to be attested compulsorily. The appellant proved the said document. Independent evidence is required only to lend further corroboration to the evidence of the appellant. Though such independent corroboration is lacking in the present case, in our view, the evidence of the appellant herein can be accepted in view of the above-mentioned discrepancy in the stand of the respondents. At any rate, in our view, the learned Single Judge ought not to have taken a different view on appreciation of the evidence in the present case only on the ground that there is no independent witness examined to establish the execution of Ex. A-1.
10. Even otherwise the conduct of defendants/respondents does not justify the reversal of the Trial Court decree. On the face of three notices, Exs.A-2 to A-4 demanding the specific performance of Ex.A-1 and if really Ex.A-1 is a fabricated document, the respondents should have come out at the earliest point of time on receipt of the above-mentioned notices denying the genuineness of the document. The respondents chose to remain silent. On the other hand, in the written statement the first defendant/respondent took a stand that he never received the said notices. That fact stood contradicted by the evidence of the 3rd defendant. In the cross-examination, the 3rd defendant categorically stated “it is true that my father received Exhibits A-2 to A-4. I do not aware whether my father sent any reply notices to Exhibits A-2 to A-4”. On the face of this categoric admission by the 3rd defendant, no further proof of the issuance of the above mentioned notices is required. However, the learned Single Judge in this context recorded as follows:
“The acknowledgments whereunder notices said to have been served have not seen the light of the day. In the absence of acknowledgments, it is unsafe to draw adverse inference regarding the conduct of the first defendant-deceased in not giving a reply”.
11. In the background of our above discussion, we disagree with the findings of the learned Single Judge.
12. The learned Single Judge also recorded a finding as follows:
“I also find that for the sale of industry, permission from the Industries Department is required. I also find that specific performance of agreement of sale cannot be granted in respect of sale of industry without permission from the Industries Department”
13. The said findings has no basis either in the facts that is the pleadings of the case or in law. To that effect, nothing is brought to our notice at the time of hearing of the appeal.
14. In view of the reasons mentioned above, we allow the appeal. Accordingly, the judgment of the learned Single Judge is set aside. No order as to costs.