The burden of proof under Section 68 of the Indian Evidence Act and the discretion to grant specific performance under Section 20 of the Specific Relief Act, 1963 are essential in determining specific performance cases.

JUDGMENT :

M.S. JAWALKAR, J.

1. Heard finally learned Counsel for both the parties at the stage of admission.

2. Present appeal is filed by the appellant, being aggrieved by the judgment and decree passed in First Appeal No. 260/2014 by learned Ad-Hoc District Judge-7, Nagpur, on 21/04/2016 and thereby dismissed the appeal with cost.

3. This Court while issuing the notice has framed the following substantial question of law vide order dated 12/09/2018:

“In the light of the evidence on record, whether the discretion to grant the relief of specific performance has been rightly exercised by the Courts?”

4. The case of the plaintiff in brief is as under:

Defendant is owner of agricultural land bearing S. No. 72/1, P.H. No. 4 situated at Mahuli, Tah-Parsheoni, Dist.- Nagpur. Defendant agreed to sell the suit property to the plaintiff for valuable consideration of Rs. 5,51,000/- as per agreement to sell dated 09/10/2005. The sum of Rs. 5000/- was paid by the plaintiff through cheque dated 10/10/2005. Balance consideration amount was to be paid in installment Rs. 1,75,000/- in total was paid to the defendant from time to time against which defendant acknowledged the receipt. Defendant agreed to get the land measured and obtained all the certificates necessary for the purpose of sell transaction, but he failed to do so and therefore lastly plaintiff issued registered notice on 16/12/2006. It was received by the defendant on 20/12/2006. Defendant failed to reply it and further to execute the sale deed by accepting the remaining amount of consideration which constrained plaintiff to file the suit for specific performance of the contract and damages valued of Rs. 5,36,000/-.

5. Defendant appeared in the said matter and filed its Written Statement and submitted that there was no such agreement to sell the suit property for consideration of Rs. 5,51,000/-. He also denied the receipt of Rs. 1,75,000/- from time to time from plaintiff. According to the defendant, amount of Rs. 70,000/- was only paid on 09/10/2005 and thereafter no amount was paid at any point of time. It was a transaction of hand loan of Rs. 70,000/- only and against this amount, agreement to sell was reduced on stamp paper for the purpose of security with assurance that plaintiff will not act upon it.

6. It is further submitted that signatures of the defendant were obtained on blank stamp paper and used as money receipt. The amount of consideration shown is less than market value. The defendant tried to refund the amount but plaintiff refused to accept it. On this defence, defendant prayed for dismissal of the suit.

7. After considering the matter before it the learned Lower Court observed that plaintiff has discharged the initial burden of execution of the agreement as defendant has not denied signing of the document of agreement scribed. Burden is on the defendant to show that it was a loan transaction which defendant has failed to discharge. Therefore, learned lower court decreed the suit with cost and directed to the plaintiff to deposit the remaining balance consideration of Rs. 3,76,000/- and also directed the defendant to execute the registered sale deed in favor of plaintiff.

8. Being aggrieved and dissatisfied by the aforesaid judgment of learned lower court the defendant preferred an appeal before the learned ad-hoc district judge-7, Nagpur. The learned appellate court gave the concurrent finding as that of the learned lower court and dismissed the appeal with cost. The aforesaid finding is the subject matter of challenged in the present appeal.

9. It is the contention of the learned counsel for the appellants that the learned courts below erred in admitting the agreement dated 09/10/2005 in evidence without getting it proved by witnesses and scriber. Specifically under the situation when the defendant has categorically denied the same in his written statement at Exh.17. It is further contended that the Courts below have not properly and lawfully exercised the discretion as r