The execution of an agreement must be proven with clear evidence, including signatures and witness credibility, to enforce specific performance.

ORDER

1. This appeal is directed against judgment and decree dated 17.11.2018 passed by Additional District No.1, Bikaner (?the first appellate court?), whereby, the appeal filed by the respondents against the judgment and decree dated 13.11.2007 has been allowed and the decree for specific performance passed by the trial court has been set aside.

2. The suit for specific performance was filed by the appellant ? plaintiff inter alia with the submissions that respondent ? Gangaram was in requirement of Rs.35,000/- for his personal and household expenses and, therefore, for the agriculture land comprising in Khasra No.594 admeasuring 11.34 hectare, an agreement to sale dated 14.5.2001 was entered into and it was agreed that the sale deed would be executed in five months. When the defendant was required to get the sale deed registered, he started avoiding and on 3.11.2001 refused. It is claimed that the plaintiff was ready and willing to purchase the stamps and pay the registration fees and, therefore, prayed that sale deed be got registered in his favour and the possession of the land be handed over to him.

3. Written statement was filed denying the execution of the agreement. It was claimed that the same was fraudulent and concocted and that the same did not fall within the definition of an agreement and, therefore, the suit be dismissed.

4. Based on the averments of the parties, the trial court framed four issues on 5.2.2003. Whereafter on 19.8.2004, two more issues were framed. On behalf of the plaintiff, two witnesses were produced and the agreement was exhibited. On behalf of the defendant, two witnesses were produced and report of expert was produced as Ex.A/1. One more document i.e. death certificate of Kishannath was produced.

5. After hearing the parties, the trial court came to the conclusion that the plaintiff from his evidence and that of Narayannath and from cross-examination of Sahiramnath has proved that the defendant had executed the agreement after receiving Rs.35,000/- and placed his thumb impression from which, Sahiramnath and Kishannath signed as witnesses, which was admitted by Sahiramnath. The plaintiff was always ready and willing to perform his part of the contract.

6. The issue regarding the agreement being concocted was decided against the defendant. On the admissibility of the document, it was found that as the deficient stamp duty alongwith penalty has been paid, the objection had no substance. Ultimately, the suit was decreed alongwith costs for specific performance of the contract.

7. Feeling aggrieved, the defendant filed first appeal. The first appellate court after hearing the parties decided the appeal issue-wise and came to the conclusion that the document (Ex.1) only bears the thumb impression of the transferor and signature / thumb impression of transferee was not there. In absence of signatures / thumb impression of the transferee on Ex.1, the execution of the document was found suspicious.

8. It was indicated that the absence of signatures / thumb impression of the tansferee has not been explained. The plaintiff has failed from his evidence to prove that the document was executed by defendant after receiving Rs.35,000/-. The court also found that the agreement dated 14.5.2001 show Sahiramnath and Kishannath as witnesses, whereas, Kishannath had died prior to 14.5.2001. The court did not accept the plea that Kishannath, who had witnessed the agreement was different from one who had died on 13.12.1997. The statement of PW/2 Narayannath was not believed by the appellate court and as oath commissioner, who had certified the agreement (Ex.1) was not produced, the appellate court came to the conclusion that the plaintiff had failed to prove the execution of the agreement and on account of its finding on the said aspect, reversed the finding recorded by the trial court on issue no.1.

9. On the aspect of readiness and willingness, it was found that no concrete evidence was produced to indicate the readiness