Sunday, 29 May 2016

Whether defence of forgery can be considered by court if there is no pleading in that respect?

Ordinarily, the burden to prove forgery is on the party
alleging forgery in view of provision of Section 102 of Evidence Act
(illustration – b). In suit for specific performance of Contract, when
there is no specific pleading about forgery, such defence need not be

considered by the Court (Order 6 Rule 4 of CPC). 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
SECOND APPEAL NO. 132 OF 2015
 Shakuntala W/o Yeshwant Bhujange,
VERSUS
 Chandrakant S/o Hiraman Bhujange,
 CORAM : T. V. NALAWADE, J.
 DATE : 30TH SEPTEMBER, 2015.
Citation; 2016(2) ALLMR342



 The instant appeal is filed against the judgment and decree
passed in RCS No. 120 of 2000, which was pending in the Court of
Joint Civil Judge Junior Division, Ambajogai and also against the
judgment and order in Reg. Civil Appeal No. 19 of 2014, which was
pending in the Court of District Judge - 3, Ambajogai.
2. Heard learned Counsels appearing on behalf of the
respective parties.
3. The suit was filed by respondent No. 1 - Chandrakant for
relief of specific performance of contract of sale of agricultural land
against the appellants, which was in respect of portion of three acres
land out of survey No. 290, situated at village Chanai. The defendantYashwant,
who was alive on the date of the suit, was a brother of
father of the plaintiff.
4. It is case of the plaintiff that, the defendant, under
agreement dt. 26th February, 1997, had agreed to sale the suit property
to the plaintiff for consideration of Rs. 60,000/-. It is contended that,
on the date of the agreement, the amount of Rs. 59,000/- was given by
plaintiff to defendant and the remaining amount was to be paid at the
time of registration of sale deed. It is contended that, the sale deed was
to be executed prior to 30th June, 1999 by the defendant under the
agreement.
5. It is the case of the plaintiff that, after the date of agreement,
he requested the defendant many a times to execute the sale deed
but, the defendant avoided to do so under one or the other pretext. It
is contended that, when the possession of the suit land was given to
plaintiff under agreement of sale, the defendant and his wife made
false contentions and filed suit for injunction against him in respect of
the suit land, bearing No. 150 of 1999. On the date of the present suit,
the said suit of injunction was pending. It is contended that, as the
plaintiff was in possession of the land, entry in revenue record was
made accordingly but dispute was created by defendant in respect of
the entry also. It is contended that, when defendant flatly refused to
execute the sale deed on 14th June, 2000 and when defendant and his
family members tried to interfere in the possession of the plaintiff
over the suit land and they arranged to file a chapter case against the
plaintiff, the plaintiff realized that there was no other alternative but to
file the suit for specific performance of contract. The relief of
permanent injunction was also claimed. It is the case of the plaintiff
that, he was always ready and willing to perform his part of contract.
6. The defendant – Yeshwant contested the matter by filing
written statement. He denied that, he had agreed to sell the suit
property to the plaintiff and the written agreement was made on 26th
February, 1997. The defendant denied that the possession of the land
is with plaintiff. The defendant, however, admitted that the plaintiff
had asked him to execute the sale deed and notice to that effect was
also sent.
7. It is the case of the defendant that, father of the plaintiff was
Karta of joint Hindu family, of which defendant was a member. It is
contended that, Gut No. 272 was purchased by defendant from his
own income. He contended that, he is suffering from paralysis and is
bedridden. He contended that, he used to give his thumb impressions
on the papers which the father of plaintiff used to bring to him as they
had the joint Hindu family. He contended that, as he was bedridden,
one Shaikh Farid was cultivating the suit land for him. He contended
that, when the plaintiff attempted to interfere in the possession of the
defendant over the suit land, a report was given to the police and
chapter case was filed against the plaintiff. He admitted that, he had
filed suit for injunction against the plaintiff in respect of the same
land. He contended that, by joining hands with revenue authority, the
plaintiff had managed to get his name entered in the revenue record.
It is the case of the defendant that, as he is demanding his share in the
joint family property, only in order to pressurize him and harass him, a
false suit is filed against him.
8. The issues were framed in the trial Court on the basis of the
aforesaid pleadings and both the sides adduced the evidence. Though
some other contentions were made by the plaintiff to show that the
property bearing Gut No. 272 was purchased in the name of defendant
by father of plaintiff and the consideration was paid by the father of
the plaintiff, this contention need not be considered in the suit filed for
relief of specific performance of contract. Both the Courts below have
held that the plaintiff has proved the execution of the document of
agreement dt. 26th February, 1997 and also the contentions that the
consideration of Rs. 59,000/- was paid to the defendant and defendant
had put the plaintiff in possession of the suit property. The point of
readiness and willingness is also proved by the plaintiff.
9. The ld. Senior Counsel for the appellant submitted that, the
substantial question of law needs to be formulated on the point of
proof of the execution of so called document of agreement of sale. He
submitted that, the evidence given by the witnesses of plaintiff is not
consistent with regard to the place of execution and also as to the
person who was involved in preparing the document and this
inconsistency is not considered and, therefore, the findings of the
Courts below on this point are perverse. He also submitted that, the
substantial question of law needs to be formulated with regard to the
findings given by the Courts below on the point of possession. The ld.
Senior Counsel further submitted that, as the agreement of sale was
not registered under Registration Act, this document could not have
been used for any purpose and on that point also, the substantial
question of law needs to be formulated.
10. The plaintiff has examined himself to adduce evidence on
the agreement of sale. His evidence shows that, in his presence the
document was written, defendant put his thumb impression on the
document and one receipt with regard to passing of consideration was
also given by defendant. He has given evidence that, under this
document, possession was given to him on the date of agreement. He
has given evidence that as he was in possession and he had started
cultivation of the land, after enquiry made by revenue authority, his
name came to be entered in column 7-B of the 7/12 extract. He has
given evidence on cause of action and on attempts made by him for
getting the sale deed executed. Most part of consideration was paid
under the agreement and the defendant admittedly refused to
execute the sale deed in reply given to the notice and so there is no
need to discuss more the evidence on the point of readiness and
willingness.
11. Hiraman Bhujange - father of plaintiff is examined by
plaintiff as his witness and his evidence is similar to that of the
plaintiff. His evidence shows that, they had gone to the premises of
Court for executing the document and one Bhatlavande had scribed
the document on the basis of the information supplied by the
defendant. There is some inconsistency in the evidence of Hiraman as
he has deposed that, Shri. Narare, who was their Advocate, had helped
them in preparing the document though the same was scribed by
Mr Bhatlavande. However, the evidence is consistent as to the place
where the the document was prepared.
12. Shivaji Hirve, one attesting witness, who has signed both
the documents, agreement and receipt, has given evidence that these
documents were prepared at the instance of defendant and one
Advocate Shri. Narare had helped the parties to prepare those
documents. The evidence of father of plaintiff and these witnesses
show that the consideration was paid to the defendant through
Advocate Narare. The learned Senior Counsel for appellant submitted
that, plaintiff has given evidence that amount was given to the
defendant directly and, therefore, there is some inconsistency. Ld.
Senior Counsel submitted that the plaintiff ought to have examined
Advocate Narare when the evidence of aforesaid nature was given by
the plaintiff.
13. Bhatlavande, the scribe, has given evidence that he wrote
contents of the agreement as also the receipt as per the instructions
given by the defendant. He had signed on the two documents, as they
were scribed by him. Though he has not taken the name of Advocate
Shri. Narare, not much can be made out due to the circumstance as he
scribed the documents and there are signatures of this witness on both
the documents.
14. The aforesaid evidence shows that the plaintiff gave
evidence to prove both the documents. Though the agreement was not
registered, there is a separate evidence of agreement of sale and
payment of consideration. For collateral purpose, these documents can
be used.
15. During pendency of the suit, defendant died and his L.Rs.
i.e. his widow and issues were brought on record. His wife has stated
in the evidence that, as there was joint Hindu family, her deceased
husband - defendant used to give thumb impressions on any
documents which were being brought by father of plaintiff. Thus, she
has not specifically denied that the two documents like the agreement
of sale and receipt bear the thumb impressions of her deceasedhusband.

16. Shakuntalabai has given evidence that her husband was sick
in the year 2000 and at that time, there was obstruction to the
possession and they were cultivating the land through one Shaikh
Farid. She has given evidence about the events like giving of notice
by plaintiff and giving of reply by her husband. In view of these
circumstances, not much can be made out from oral evidence of this
lady that, from 1995, her husband was bedridden and he was suffering
from paralysis. She admits that, even when her husband was sick,
he used to give thumb impressions on any document which was
brought by father of plaintiff.
17. It is not the case of the defendant that, plaintiff was not in a
position to pay such consideration. On the contrary, it is admitted fact
that, two acres portion of this land was already sold by defendant from
the same land to the plaintiff. That sale deed was never challenged. It
is not disputed that, revenue authority made enquiry and found that
plaintiff was cultivating the suit land and accordingly entry was made
of the name of the plaintiff in the revenue record. That entry is still
there though the defendant's widow has tried to say that they had
challenged the said entry by filing appropriate proceedings. On this
point, there is evidence of Shri. Shaikh Naseer, but the record
prepared by revenue authority has presumptive value. It appears that,
unnecessarily the officers of revenue department are examined by the
plaintiff to show that proper enquiry was made and then the name of
plaintiff was entered in the revenue record. The possession of plaintiff
over the suit property is a circumstance, which corroborates the case
of the plaintiff that there was the agreement of sale between the
plaintiff and the defendant. It is also admitted that, defendant had
filed a suit for relief of injunction but, the said suit was subsequently
withdrawn as no relief even interim was given by the Court to the
defendant in respect of the suit property.
18. The ld. Senior Counsel for appellant submitted that, the
burden was on plaintiff to prove that the disputed documents were
bearing thumb impression of deceased-defendant in view of the nature
of defence taken in the W.S. The ld. Senior Counsel placed reliance
on some observations made by Hon'ble Apex Court in the case of
Thiruvengada Pillai v. Navaneethammal & Anr. reported in AIR
2008 SC 1541. In view of the facts of said reported case, the Apex
Court observed that it was necessary for the party who was relying
upon the document to show that the document was not forged. The
Apex Court has also observed that, there was doubt about the
genuineness of the agreement and it was necessary to dislodge the
effect of evidence of some witnesses.
19. Ordinarily, the burden to prove forgery is on the party
alleging forgery in view of provision of Section 102 of Evidence Act
(illustration – b). In suit for specific performance of Contract, when
there is no specific pleading about forgery, such defence need not be
considered by the Court (Order 6 Rule 4 of CPC). In the present
case, there is a evidence of scribe and also of attesting witness. There
is implied admission of the widow about giving of thumb impressions
by her husband. In any case, she had no personal knowledge about the
execution of the documents. Further, there was one more transaction
made in the past by defendant in favour of plaintiff in respect of some
portion of the same land and so there was no room to have doubt
about the case of the plaintiff that he was in possession under the
disputed agreement.
20. Ld. Senior Counsel argued that, point of hardship ought to
have been considered by the Courts. This point was never raised by
the defendant or his L.Rs. On this point, the ld. Counsel for the
plaintiff/present respondent placed reliance upon the decision of the
Apex Court in the case of Prakash Chandra Versus Narayan
reported in ( 2012) 5 SCC 403. In this case, the Apex Court has laid
down that there needs to be a specific contention about hardship and
issue also needs to be framed on that point. In view of this position of
law, this Court holds that, at this stage, such contention made by the
defendant cannot be considered.
21. The findings given by the Courts below on the point of
agreement of sale made by defendant, on the passing of consideration,
on the point of possession of the plaintiff and on the point of readiness
and willingness of the plaintiff and also on the cause of action are
findings on fact and there are concurrent findings of the Courts below.
In view of these circumstances, this Court holds that there is nothing
in the present appeal, on the basis of which substantial question of law
can be formulated. Appeal stands dismissed.
22. Ld. Senior Counsel for the appellant requested for grant of
four weeks' time and to continue the interim relief for such period as
he wants to challenge the decision of this Court.
23. Interim relief is continued for a period of four weeks from
today.
 [ T. V. NALAWADE, J. ]





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