The burden of proof shifts to the defendant to prove her case once the plaintiff proves the execution of the agreement to sale, payment of part consideration, and readiness to perform.

JUDGMENT

R. M. Joshi, J. - This appeal is filed under Section 100 of the Code of Civil Procedure taking exception to the judgment and decree passed in Reg. Civil Appeal No. 111/2015 dated 13/12/2021 confirming judgment and decree passed in Special Civil Suit No.58/2008 dated 17/08/2015 by Jt. Civil Judge, Senior Division, Dhule.

2. Appellant is the original defendant in the suit filed by plaintiff for specific performance of contract. It is case of the plaintiff that defendant is owner of plot No. 19 of survey No. 20/2 of Shri Maharana Pratap Co-operative Society Ltd. Dhule. The defendant agreed to sell suit plot by agreement to sale dated 07/04/2003 for total consideration of Rs.15,51,000/- out of the said consideration earnest money of Rs.1,51,000/- was paid on the date of execution of agreement to sale. The balance amount was to be paid after within three years. However, plaintiff paid additional sum of Rs.50,000/- in the year 2008. In the year 2008 plaintiff found that the defendant is avoiding to execute sale deed and hence suit came to be filed.

3. Defendant by filing written statement denied the intention to sell suit plot. Amongst other contentions, it is her case that her husband was a drunkard and he borrowed sum of Rs.1,51,000/- from plaintiff and obtained her signatures on blank papers. She also claimed that the loan amount is already repaid. It is further case of the this defendant that the suit property is given on rent to Ishwar Bhavsar and she is no more in possession thereof.

4. Before Trial Court on behalf of plaintiff, his son, as a constituted attorney, led evidence at Exhibit 64. Plaintiff also examined Pundlik at Exhibit 69. He relied upon agreement to sale (Exhibit 73), notice issued to the defendant (Exhibit 58), envelope (Exhibit 71) and power of attorney (Exhibit 74). Defendant failed to cross-examine plaintiff and his witness nor led any evidence before the Trial Court.

5. Learned Trial Court by passing judgment and decree dated 17/08/2015 decreed the suit holding that the plaintiff has proved the execution of agreement to sale of suit property by defendant and also his readiness and willingness to perform his part of the contract. The Trial Court also considered and recorded the findings on the issues in respect of the objection raised about non joinder of the parties and that the suit property is in the possession of the tenant. Trial Court did not find those contentions to be an impediment in granting the decree of specific performance in favour of plaintiff.

6. Defendant challenged the said judgment by preferring RCA No.111/2015. The said appeal was heard and order dated 17/03/2020 came to be passed by affirming finding of Trial Court but thereafter drawing conclusion that defendant needs to be given an opportunity to cross-examine plaintiff and his witness allowed parties to lead evidence. Thereafter parties to the appeal including present appellant filed joint pursis (Exhibit 25) seeking permission to lead her evidence before the First Appellate Court. It is matter of record that though the defendant has cross-examined plaintiff but failed to lead evidence and closed the evidence with the pursis. Thereafter the First Appellate Court passed judgment and decree dated 13/12/2021 whereby the judgment of the learned Jt.CJSD was upheld. Being aggrieved by the said judgment present appeal is preferred by the defendant.

7. Learned counsel for the defendant submits that the learned First Appellate Court has committed serious error of law in initially dismissing the judgment and decree passed by the Trial Court by judgment and order dated 17/03/2020 and later reversing the same by upholding the decree by passing impugned judgment. He further contended that since the First Appellate Court has after recording of evidence afresh went on to record findings of the fact for the first time and thus the present appellant has lost his right to prefer first appeal against said findings. It is a submission that in the sec