Concurrent findings of forgery in sale agreement upheld; no interference in second appeal absent perversity.

JUDGMENT

The appellant, who was the plaintiff in O.S. No. 43 of 2005 on the file of the Principal Subordinate Judge, Tenkasi, has preferred the present Second Appeal.

2. The suit was instituted for specific performance based on a sale agreement dated 01.04.2003. According to the plaintiff, the defendant agreed to sell the suit property for a total consideration of Rs.1,55,000/-, out of which a sum of Rs.1,50,000/- was paid as advance. A period of six months was stipulated for payment of the balance amount of Rs.5,000/-. It is the further case of the plaintiff that, upon the defendant’s failure to execute the sale deed, a legal notice dated 07.03.2005 was issued, followed by the filing of the suit on 24.03.2005 seeking specific performance, and in the alternative, refund of the advance amount. 3. The defendant, resisting the suit, denied the execution of the sale agreement in toto. It was contended that there was only a monetary transaction between the parties and that certain blank signed papers had been handed over in that connection, which were subsequently misused and fabricated into the alleged sale agreement. The defendant also specifically denied receipt of the advance amount.

4. The trial court framed the necessary issues. The plaintiff examined himself as P.W.1 and one attesting witness as P.W.2, and marked three documents. On the side of the defendant, D.W.1 was examined and no documentary evidence was adduced.

5. Upon consideration, the trial court recorded a categorical finding that the suit sale agreement was a forged document and that the plaintiff had failed to establish both execution of the agreement and passing of consideration. Consequently, the suit was dismissed. Aggrieved by the same, the plaintiff preferred A.S. No. 9 of 2007 before the I Additional District Court, Tirunelveli, along with I.A. No. 56 of 2007 seeking reception of additional evidence. The First Appellate Court, on a re-appreciation of the entire evidence, dismissed the application for additional evidence and concurred with the findings of the trial court. It was held that the sale agreement was fabricated and that the plaintiff had not approached the court with clean hands. Accordingly, the appeal was dismissed. Challenging the concurrent findings, the present Second Appeal has been admitted on the following question of law:

“Whether the Courts below erred in holding that the Ex.A1, the agreement sale was not intended to be acted upon as stated by the defendants / respondents?”

6.Submissions:

6.1. The learned counsel for the appellant contended that both courts below erred in disbelieving the plaintiff’s case despite the oral evidence of P.W.1 and P.W.2 supporting the execution of the sale agreement. It was argued that in the absence of any documentary evidence on the side of the defendant to substantiate the alleged loan transaction, the courts below ought to have accepted the plaintiff’s case. It was further submitted that minor discrepancies or suspicions in the document cannot, by themselves, be a ground to reject an otherwise proved agreement.

6.2. Per contra, the learned counsel for the respondent submitted that both courts, upon proper appreciation of the evidence, have concurrently found that the document in question is a forged one. It was further contended that the very appearance and contents of the sale agreement, particularly the second page, disclose material alterations and fabrication. In the absence of satisfactory proof of execution and consideration, the dismissal of the suit was justified.

7.This Court has carefully considered the rival submissions and perused the entire materials available on record, including the judgments of the courts below.

8. Consider