{"id":149013,"date":"1994-07-04T00:00:00","date_gmt":"1994-07-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shripat-rao-and-ors-vs-raghuvirsingh-and-ors-on-4-july-1994"},"modified":"2017-03-27T02:14:55","modified_gmt":"2017-03-26T20:44:55","slug":"shripat-rao-and-ors-vs-raghuvirsingh-and-ors-on-4-july-1994","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shripat-rao-and-ors-vs-raghuvirsingh-and-ors-on-4-july-1994","title":{"rendered":"Shripat Rao And Ors. vs Raghuvirsingh And Ors. on 4 July, 1994"},"content":{"rendered":"<div class=\"docsource_main\">Madhya Pradesh High Court<\/div>\n<div class=\"doc_title\">Shripat Rao And Ors. vs Raghuvirsingh And Ors. on 4 July, 1994<\/div>\n<div class=\"doc_citations\">Equivalent citations: AIR 1995 MP 113<\/div>\n<div class=\"doc_author\">Author: T Doabia<\/div>\n<div class=\"doc_bench\">Bench: T Doabia<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p>T.S. Doabia, J. <\/p>\n<p>1. The plaintiffs were successful in the trial court but were unable to convince the lower appellate court. The verdict having gone against them they have preferred this second appeal.\n<\/p>\n<p>2. The case of the plaintiffs is that they were in need of money. They accordingly proposed to the defendant to advance some amount by way of loan. It is stated that the defendant agreed to advance a loan on the condition that a proper security should be furnished. The condition laid down was that the plaintiffs should execute a sale deed in favour of the defendant. It was also agreed that in the event of repayment of the loan amount with interest at the rate of 6 per cent per annum the defendant would reconvey the land to the plaintiffs. The outer limit for reconveyance was fixed as 5 years. It is stated that on above arrangement having been agreed upon the plaintiffs sold their land vide two agreements executed on 27th June, 1962 in favour of the defendant. The land which was subject-matter of the two registered sale deeds is located in survey No. 1386 and 1387 and is as under:\n<\/p>\n<p>Survey<br \/>\n  No.\n<\/p>\n<p>Area<\/p>\n<p><span class=\"hidden_text\">261<\/span><\/p>\n<p>0.16<\/p>\n<p><span class=\"hidden_text\">259<\/span><\/p>\n<p>6.00<\/p>\n<p><span class=\"hidden_text\">360<\/span><\/p>\n<p>4.03<\/p>\n<p><span class=\"hidden_text\">370<\/span><\/p>\n<p>8.16<\/p>\n<p><span class=\"hidden_text\">372<\/span><\/p>\n<p>6.07<\/p>\n<p><span class=\"hidden_text\">374<\/span><\/p>\n<p>2.07<\/p>\n<p>344\/1115<\/p>\n<p>0.11<\/p>\n<p>355\/1116<\/p>\n<p>1.01<\/p>\n<p><span class=\"hidden_text\">Total No. 8<\/span><\/p>\n<p>30.01<\/p>\n<p>Sale made by plaintiff No. 2:-\n<\/p>\n<p><span class=\"hidden_text\">286<\/span><\/p>\n<p>1.01<\/p>\n<p><span class=\"hidden_text\">293<\/span><\/p>\n<p>3.10<\/p>\n<p><span class=\"hidden_text\">297<\/span><\/p>\n<p>1.02<\/p>\n<p><span class=\"hidden_text\">304<\/span><\/p>\n<p>1.02<\/p>\n<p><span class=\"hidden_text\">301<\/span><\/p>\n<p>1.03<\/p>\n<p><span class=\"hidden_text\">310<\/span><\/p>\n<p>0.07<\/p>\n<p><span class=\"hidden_text\">311<\/span><\/p>\n<p>4.02<\/p>\n<p><span class=\"hidden_text\">313<\/span><\/p>\n<p>3.10<\/p>\n<p><span class=\"hidden_text\">317<\/span><\/p>\n<p>1.05<\/p>\n<p><span class=\"hidden_text\">318<\/span><\/p>\n<p>3.06<\/p>\n<p><span class=\"hidden_text\">319<\/span><\/p>\n<p>3.12<\/p>\n<p><span class=\"hidden_text\">336<\/span><\/p>\n<p>2.18<\/p>\n<p><span class=\"hidden_text\">368<\/span><\/p>\n<p>1.19<\/p>\n<p><span class=\"hidden_text\">371<\/span><\/p>\n<p>1.17<\/p>\n<p><span class=\"hidden_text\">Total No. 14<\/span><\/p>\n<p>30.04<\/p>\n<p>3. The two sale transactions were for a consideration of Rs. 800\/- each.\n<\/p>\n<p>4. It was further pleaded by the plaintiffs that on 27th June, 1962 the defendant entered into an agreement to reconvey the land and the plaintiffs were to pay the interest at the rate of 8 annas per hundred per month. As stated above, the outer limit in the matter of reconveyance was fixed at 5 years.\n<\/p>\n<p>5. It is further pleaded that in the month of June, 1967 the plaintiffs approached the defendant with the total amount along with interest and requested him to reconvey the property. The defendant however, informed them that he would talk on the subject after 15\/20 days as he was going out of station. It is stated in para No. 7 of the plaint that on I7th June, 1967 the plaintiffs reached the house of the defendant but the defendant put them off on the plea that he would consider the matter It may be seen that there is some dispute with regard to averments contained in para No. 7. According to the defendant the plaintiff wanted to pay some amount whereas the plaintifffs case is that they wanted to pay the total amount. I have perused the original plaint and find that the word written in Hindi is &#8220;KUL RUPAYA MAI BAJ&#8221;. The defendant wants to read this as &#8220;KHUCH RUPAYA&#8221;. As noticed above the original of the plaint used the word &#8216;KUL&#8217; and &#8216;KHUCH&#8217;. This aspect of the matter would be dealt with again at the appropriate place.\n<\/p>\n<p>6. It may further be seen that the case of the plaintiffs is as the defendant was not having a clear intention therefore, telegrams, registered letters and dasti letters were sent to him from 20th June, 1967 to 23rd June, 1967. It is further stated that inspite of this the plaintiffs did not exhibit any intention to execute the deed in question,<\/p>\n<p>7. It is categorically stated in para No. 9 of the plaint that on 23rd June, 1967 the plaintiffs went to the house of defendant and tendered the entire amount and requested him to execute the sale deed but the defendant flatly refused in this regard. Registered notices were sent on 24th June, 1967. Notices were also sent under postal certificate and also by pasting at the house of the defendant. The plaintiffs further states that they attended the office of the Sub-Registrar on 27th of June, 1967 along with the sale consideration but the defendant did not turn up to execute the deed in question. They accordingly filed a suit for specific performance of the contract on 21st October, 1967.\n<\/p>\n<p>8. The stand of the defendant is that he never executed any deed of reconveyance as alleged by the plaintiffs. His case is of total denial. According to him the sale deeds executed on 27th of June, 1962 were out right sales and the question of reconveying the lands to the plaintiffs did not arise.\n<\/p>\n<p>9. The matter was put to trial. Oral as well<br \/>\nas documentary evidence was brought on the<br \/>\nrecord.\n<\/p>\n<p>10. Exhibit P.4 is the notice dated 20th June, 1967. Exhibit P.5 is the copy of the telegram sent to the defendant asking him to reconvey the land in question. Exhibit P. 7 is the postal receipt indicating acknowledgment of the receipt of the letter. Exhibit P8 is the letter written to the superior officer of the defendant intimating that the defendant is dilly dalling in the matter of executing the deed of reconveyance. Exhibit p.24 is an application submitted to the Sub-Registrar with a view to prove that they attended the office of Sub-Registrar but the defendant did not turn up. The agreement to sell which is in dispute is Exhibit P.3 whereas the sale deeds which were executed by the plaintiffs in favour of the defendant are Exhibit P.25 and Exhibit P.26.\n<\/p>\n<p>11. The plaintiff No. 1 appeared as P.W. 1. He specifically stated that agreement Exhibit P.3 was executed. It is further stated that the plaintiffs were ready and willing to abide by the terms of Exhibit P.3. The various notices sent by Registered post, by telegrams has been adverted to. It was also stated that the land in question was very valuable and the prevalent rate was Rs. 2,000\/- per bigha. This was sold at a meagre amount because the idea was to secure a loan. With a view to prove the value of the land one Hira Lal appeared as P.W. 1. He deposed that vide Exhibit P.1 he purchased some agricultural land at the rate of Rs. 300\/- per bigha. The vendor who sold the land to Hira Lal was examined as P.W. 6. The fact that notices were affixed on the house of the defendant was duly proved through the testimony of P.W. 2 and P.W. 7 namely, Tulsi and Anand Rao. P.W. 3 Balwant Rao corroborates the fact that the plaintiffs visited the house of the defendant and requested him to execute the sale deed. The witness states that the plaintiffs wer ready and willing to execute the sale deed in question.\n<\/p>\n<p>12. P.W. 8 Banmali Dwivedi is the handwriting expert. He submitted his report on 25th of January, 1970. The report is Exhibit P. 12. This witness compared the signature of the defendant on the agreement to sell with the signatures on the written statement, vakalatnama and the applications Exhibit P.8 to P. 12. The hand-writing expert came to the conclusion that the disputed signatures and the other signatures are of the same person.\n<\/p>\n<p>13. The respondent defendant examined D.W. 1 Janved, the Patel of the village. He specifically stated that he is witness to the registered sale-deed executed by the plaintiffs in favour of the defendant. He has also signed the agreement to sell. Exhibit P. 3. He however, stated that at the time when he put his signatures on Exhibit P. 3, Raghuvirshing&#8217;s signatures were not there. He stated that the plaintiffs had informed him that Raghuvirshing is ready to execute it and shall sign later on D.W. 2 namely Ram Swaroop also admits that he is a witness to registered sale-deed Exhibit P. 25 and Exhibit P. 26 and also to agreement to sell Exhibit P. 3. He stated that firstly Janved Singh signed and then he put his signature on the agreement to sell Exhibit P. 3. In para No. 5 of his statement this witness states that when he signed the agreement to sell, the document was blank.\n<\/p>\n<p>14. The trial court while decreeing the suit took note of the demeanour of the witnesses and recorded the following findings.\n<\/p>\n<p>(i) that both the parties had approached the scribe for having the sale-deed and an agreement prepared simultaneously.\n<\/p>\n<p>(ii) that the attesting witnesses to the agreement examined by the defendant are not the truthful witnesses. Their testimonies are contradictory and not reliable, the witnesses would not have signed as attesting witnesses unless the documents were complete and duly executed in their presence.\n<\/p>\n<p>(iii) that the defendant Raghuvir Singh knew about the execution of the agreement and his conduct is inconsistent with the theory of non-execution of the documents.\n<\/p>\n<p>(iv) that the plaintiffs served notices on the defendant claiming performance of the agreement and the defendant maintained complete silence in this regard.\n<\/p>\n<p>(v) that the plaintiffs appeared before the Registrar for securing execution of the sale deed and the defendant has failed to execute the sale deed in favour of the plaintiffs though the sale price was tendered by him.\n<\/p>\n<p>15. 1 have heard the learned cousnel for the parties and have gone through the records of this case. It has been argued that the first appellate court has not appreciated the evidence in proper perspective, and the finding recorded that the agreement Exhibit P. 3 was not executed by the defendant-respondent is not based on correct appreciation of factual position. On the other hand the counsel for the defendant has argued that the fact that two attesting witnesses have not supported the execution of document Exhibit P. 3 is to be taken note of. It has been argued that in any case, the plaintiffs were not ready and willing to execute the agreement Exhibit P. 3. Much reliance has been placed on the averments contained in para No. 7 of the plaint.\n<\/p>\n<p>16. So far as the averments made in the plaint are concerned, they are categoric. The plaintiffs have stated that they are ready and willing to pay the total amount along with interest. A statement to this effect has been made in para No. 7, The word used is &#8216;KUL&#8217; and not &#8216;KHUCH&#8217;. Any ambiguity in this regard is clarified by the further statement contained in para No. 9 of the plaint wherein it has been categorically stated that on 23rd June, 1967 they went to the house of the defendant with the total amount but the defendant refused to accept the same. Thus the requisite criteria required to be pleaded and proved as per Section 16(c) of the Specific Relief Act, 1963 has been duly proved and pleaded in this case.\n<\/p>\n<p>17. The plaintiffs expressly averred in the plaint their readiness and willingness to perform their part of the contract. It is well settled that the substantive provisions contained in Section 16(d) of the Specific Relief Act. 1963 do not insist upon a particular set of word to be used. The averment must in substance indicate the continuance readiness and willingness of the plaintiff to perform his part of the contract. The plaintiffs in this case made an effort to convince the defendant that he was required to execute a sale deed in pursuance of the agreement to sell. The plaintiffs approached him in the beginning of June, 1967. They visited him on 27th June, 1967. Telegrams were sent to him on 20th June, 1967. Registered notices were also sent to him as such all that was required to be pleaded and proved on behalf of the plaintiffs in terms of Section 16(c) of the Specific Relief Act, 1963 was done in this case.\n<\/p>\n<p>18. The conduct of the defendant may now be seen. He appeard as D.W. 4. He denied having received any notice from the plaintiffs. This is contrary to what he stated in para No. 8 of the written statement. He took the extreme position that he never executed the agreement to sell and found ready to support from D.W. 1 and D.W. 2. The statements of D.W. 1 and D.W. 2 are contradictory. D.W. 1 says that on the deed in question the signatures of the defendant were not there when this witness signed as attesting witness. D.W. 2 went to the extent of saying that the document was not in existence and he signed on blank paper. It is difficult to reconcile the statements of D.W. 1 and D.W. 2. The only reasonable conclusion which can be drawn is that agreement Exhibit P. 3 was duly executed. The fact that Raghuvir Singh remained silent and never gave any reply to the notices and the fact that he never took a stand that the signatures are forged are clear pointer to the fact that he wanted to get out of Exhibit P. 3. The trial court reached a correct conclusion. The finding recorded to the contrary by the courts below on this issue cannot be sustained and is reversed.\n<\/p>\n<p>19. Much has been said that there was no intention on the part of the plaintiffs to execute agreement Exhibit P. 3. This aspect of the matter has been adverted to. The plaintiffs submitted an application with a view to amend the pleadings. I am of the view that pleadings are clear. The statement of facts contained in para Nos. 7 to 12 of the plaint fulfills the requirement of Section 16(c) of the Specific Relief Act, 1963. The case of the plaintiffs is that they were in need of money and that they were to repay the loan to the Bank is duly supported by the statement of D.W. I. The plaintiffs thought that the honourable way to meet the liability is to get a loan against the security of the land, little realising that this will land them in a long drawn litigation. The fact that the sale consideration was fixed at Rs. 1,600\/ &#8211; in both the sale deeds for a large chunk of land measuring 60 bighas again indicates that the real intention was not to sell the land but to seek its reconveyance.\n<\/p>\n<p>20. The trial court appreciated the facts and reached a correct conclusion. The trial court had the advantage of recording the evidence and noticing the demeanour of the witnesses. In such a situation the view is that the first appellate court should be slow to interfere with the findings recorded by the trial court.\n<\/p>\n<p>21. There is limitation on the power of the appellate court to dislodge finding of fact recorded by the trial court on reappreciation of oral evidence. The view is that appellate court should be slow to interfere with the appreciation of oral evidence made by the trial court as it is based on the credibility of witnesses whose demeanor the trial court has had the advantage of observing.\n<\/p>\n<p>22. The elaboration of the principle is found in &#8216;The Supreme Court Practice&#8217; (white book 1988 Edn. Vol. II). This is relevant and may be noticed.\n<\/p>\n<p>Great weight is due to the decision of a Judge of first instance whenever in a conflict of testimony the demeanour and manner of witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of these statements. It was further noticed that in case parties seek interference at the hands of Court of appeal then the court cannot excuse itself from the task of weighing conflicting evidence and drawing its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.\n<\/p>\n<p>XXXXX<\/p>\n<p>The Higher Court ought not to take the responsibility of reversing conclusions so arrived at merely as the result of their own comparisons and criticisms of the witnesses and of their view of the probabilities of the case &#8230;..&#8221;\n<\/p>\n<p>  &#8220;&#8230;&#8230; But while the Court of appeal is<br \/>\nalways reluctant to reject a finding by a Judge of the specific or primary facts deposed to by<br \/>\nthe witnesses, especially when the finding is<\/p>\n<p>based on the credibility or hearing of a witness, it is willing to form an independent opinion upon the proper inference to be drawn from it&#8230;..&#8221;\n<\/p>\n<p>23. <a href=\"\/doc\/454120\/\">In Sarju Prashad v. Jwaleshwari Pratap Narain Singh, AIR<\/a> 1951 SC 120 B.K. Mukherjee, J. has stated the principle with regard to the appreciation of evidence as under at page 121:&#8211;\n<\/p>\n<p>  &#8220;In such cases the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not  competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practaice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the tiral Judge&#8217;s notice or there is sufficient balance of impropbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.&#8221;\n<\/p>\n<p>24. The speach of Lord Thankerton in Watt v. Thomas, 1947 Appeal Cases 484 again brings out the principles on the subject and it is useful to quote the same.\n<\/p>\n<p>  &#8220;I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one&#8221;, and may be stated thus: (1) Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge&#8217; an appellate Court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisifed that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge&#8217;s conclusion. (2) The appellate Court may take the view that without having seen or heards the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate Court either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence may be satisfied that he has not taken proper advantage of his having seen or heard the witnesses and the matter will then become at large for the appellate Court.&#8221;\n<\/p>\n<p>25. The position may however be different in cases where the credibility or reliability of a witness is not in question and what is required to be done is to draw a proper inference from proved facts. Lord-Reid in Benimax v. Austin Motor Co. Ltd. (1955) 2 WLR 418 at page 422 observed:\n<\/p>\n<p>  &#8220;But in cases where there is no question of the credibility or reliability of any witness and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal Court is generally in as good a position to evaluate the evidence as the trial court and ought not to shrink from that task though it ought of course, to give a weight to his opinion.&#8221;\n<\/p>\n<p>26. In the above case, Viscount Simonds pointed out the need to keep distinction between a finding on a specific fact on one hand and a finding which is an inference from the proved facts on the other. According to him there is a distinction between what the term &#8216;perception&#8217; and &#8216;evaluation&#8217;. The limitation on the power of the court to come to conclusion on its own after reapprecialion of evidence is clearly confined to the former. It is observed as under:&#8211;\n<\/p>\n<p>&#8220;A Judge sitting without a jury would fall short of his duty if he did not first find the facts and then draw from then the inference of fact whether or not the defendant had been negligent. This is a simple illustration of a process in which it may often be difficult to say what is simple fact and what is inference from fact, or to repeat what I\/you actually percive by the five senses. It is a datum of experience as distinct from a conclusion.\n<\/p>\n<p>It is obvious that in almost all cases tried by a Judge without a jury an appellate Court, which has not had an opportunity of seeing the witnesses must access his conclusions of fact because it cannot tell on what grounds he reached them and what impression the various witnesses made on him.&#8221;\n<\/p>\n<p>27. In the light of the above position of law, I have also gone through the evidence on the record and I am of the view that document Exhibit P. 3 was duly executed by both the parties. The sale deed as also the agreement prepared simultaneously. I am also of the view that the attesting witnesses examined by the defendant have given contradictory statements. The statement made by one of them that he signed on a blank paper and the statement made by the other that when he signed the agreement in question, the signature of defendant respondent was not there is not believable. I am of the view that defendant Raghuvirshing duly executed the document Exhibit P. 3 and there was failure on his part to go ahead with the same. As noticed above, the findings recorded by the trial Court after due appreciation of evidence did not call for interference.\n<\/p>\n<p>28. This appeal is accordingly allowed. The judgment and decree passed by the first appellate Court is set aside. The plaintiffs would be at liberty to get the deed executed through court in case the defendant fails to execute the same within a period of four months from today. The plaintiffs shall deposit the sale consideration within a period of three months from today.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madhya Pradesh High Court Shripat Rao And Ors. vs Raghuvirsingh And Ors. on 4 July, 1994 Equivalent citations: AIR 1995 MP 113 Author: T Doabia Bench: T Doabia JUDGMENT T.S. Doabia, J. 1. The plaintiffs were successful in the trial court but were unable to convince the lower appellate court. The verdict having gone against [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-149013","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Shripat Rao And Ors. vs Raghuvirsingh And Ors. on 4 July, 1994 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shripat-rao-and-ors-vs-raghuvirsingh-and-ors-on-4-july-1994\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shripat Rao And Ors. vs Raghuvirsingh And Ors. on 4 July, 1994 - Free Judgements of Supreme Court &amp; 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