The necessity for proving the execution of a reconveyance deed and the implications of a hostile attesting witness under the Indian Evidence Act.

JUDGMENT

The legal heirs of the original plaintiff in O.S.No.273 of 1990 on the file of the Subordinate Judge, Periyakulam, have filed this appeal challenging the dismissal of the suit in O.S.No.273 of 1990 by the impugned judgment dated 21.10.2013.

2. For the sake of convenience and brevity, the parties herein after will be referred to as per their status/ranking before the trial Court.

3. The brief averments made in the plaint are as follows:-

The suit scheduled property belonged to one S.R.V.Moogaiya.

S.R.V.Moogaiya executed a sale deed dated 17.02.1980 in favour of the first defendant for sale consideration of Rs.49,000/-. S.R.V.Moogaiya entered into reconveyance agreement with the first defendant on the same day itself on condition that the first defendant should receive the amount of Rs.49,000/- from the said S.R.V.Moogaiya within 10 years (17.12.1990) from the date of the agreement and thereafter, executed the sale deed in favour of the said S.R.V.Moogaiya. However, after 10 years, the said S.R.V.Moogaiya was unable to make the payment. But the said S.R.V.Moogaiya obtained a sum of Rs.10,000/- as advance from the plaintiff and made over the agreement to the plaintiff. Since the first defendant refused to receive the agreement amount from the plaintiff and execute the sale deed in favour of the plaintiff, the plaintiff has filed the present suit.

4. The brief averments made in the written statement are as follows:-

The first plaintiff specifically denied the execution of reconveyance deed and he never received the amount in respect of reconveyance deed. S.R.V.Moogaiya executed a sale deed in favour of him for sale consideration of Rs.49,000/- on 17.02.1980. From that day onwards, he was in possession and enjoyment of the property. During the pendency of the suit, he sold the property to the remaining defendants.

5. Based on the above said pleading, the trial Court has framed the following issues:-

i)Whether the plaintiff is entitled to get the relief of specific performance?

ii) Whether the document dated 17.12.1980 can be modified?

iii) Whether the reconveyance agreement is true? iv) Whether the reconveyance agreement is binding on the plaintiff?

v) Whether the value of the reconveyance agreement pointed out by the defendant is huge? vi) What other reliefs the plaintiff is entitled to?

6. The learned trial judge, on the basis of the rival pleadings, framed the necessary issues and the plaintiffs to prove the case examined the first plaintiff himself as P.W.1 and another witness was examined as P.W.2 and marked Ex.A1 & Ex.A7 and also on the side of defendants, the first defendant examined himself as D.W.1 and marked Ex.B1 to Ex.B3 and the Court examined C.W1 as witness and marked Ex.C1 to Ex.C4.

7. The learned trial judge after considering the evidence on record, dismissed the suit by giving a finding that the plaintiff is not entitled for specific performance and dismissed the suit by the impugned judgement dated 21.10.2013.

8. Challenging the same, the present appeal has been preferred by the appellant.

9. During the pendency of this appeal, the first respondent/the original plaintiff died and his legal heirs were added as parties.

10.1. The learned counsel for the appellants would submit that even though the sole attesting witness has turned hostile, the remaining evidence clearly proved the execution of the agreement and the same was not properly considered by the learned trial Judge.

10.2. The learned counsel for the appellants would further submit that the learned trial Judge even though framed the number of issues, he addressed only the issue of execution of agreement and ha