The importance of proving the signature or thumb impression of the defendant on the agreement for sale as mandated by the Indian Evidence Act, 1872.

JUDGMENT :

1. This appeal under section 100 of the CPC is from plaintiffs in the original suit. Respondents herein were the defendants in the original suit. The appellants assail the concurrent judgments of the courts below.

2. Sri Palatla Venkateswara Rao is the younger brother of Smt. Pakanati Annapoornamma. The younger brother filed O.S.No.21 of 1990 seeking for specific performance of an agreement for sale dated 07.02.1969 praying the court to direct his elder sister/ the defendant to execute registered sale deed in his favour in terms of the agreement for sale and he also sought for a permanent injunction from interfering with his peaceful possession and enjoyment of the plaint schedule property. His elder sister came up with a counter claim wherein she disputed the agreement for sale with his brother and contended that he was in permissive possession of the plaint schedule property looking after the property on her behalf and was paying to her the profits from the property after making due deductions of expenses and in the recent past, he stopped doing that and therefore he should be directed to pay Rs.12,675/- to her towards rent or damages. During the pendency of the suit, the sole defendant died and her legal representatives, 2nd and 3rd defendants were brought on record. 4th defendant claiming to have got the estate bequeathed in his favour by the deceased under a registered will also came on record. During the pendency of the suit, the sole plaintiff also died. His legal representatives came on record as plaintiff Nos.2 to 5. The suit went for trial before the learned Senior Civil Judge, Peddapuram. The learned trial court framed the following issues for trial for finding the truth of the disputed facts :

1. Whether the suit agreement of sale dated 07.02.1969 is true, valid and supported by consideration and is binding on the defendant?

2. Whether the plaintiff is in possession of the plaint schedule property under the suit agreement of sale as contended by him or whether he is in possession of them for management on behalf of defendant?

3. Whether the plaintiff is entitled for specific performance of the suit agreement of sale and for the relief of permanent injunction prayed for?

4. Whether the defendant is entitled for profits on the plaint schedule property for the years 87-88, 88-89 and if so to what amount?

5. To what relief?

3. There was evidence of PWs.1 and 2 and Exs.A1 to A33 and Exs.C1 and C2. As against it, there was evidence of DWs.1 to 5 and Exs.B1 to B11. On considering the entire evidence on record and the contentions raised on both sides, the learned trial court held that, the agreement for sale dated 07.02.1969/Ex.A1 was not true and was not valid and was not supported by consideration and was not binding the defendant or her successors. It observed that plaintiff was in possession of the property but his possession was not under Ex.A1 agreement for sale. It held that as the agreement for sale was not proved, the plaintiff was not entitled for specific performance. It refused to grant any perpetual injunction in favour of the plaintiff. It believed the version of the defendants and their evidence and found that their counter claim for rent or damages is true and allowed the counter claim directing the plaintiffs to pay Rs.12,675/- to the defendants. It directed the plaintiffs to pay the suit costs.

4. Aggrieved plaintiffs invoked Section 96 of the CPC challenging the trial court judgment dated 17.11.1998 in O.S.No.21 of 1990. The said appeal in A.S.No.229 of 1998 was before the learned Principal District Judge, Rajahmundry, East Godavari District. In the said appeal, the plaintiffs not only impugned the judgment of the trial court dismissing their suit for specific performance but they also impugned granting the relief for money in the counter claim laid by the defendants. Be it noted a single appeal was filed as against the suit as well as the counter claim. It seems before the learned first appellate cour