2005 PLP 2020 (YLR)

Appellants on 5-1-1988, brought a suit for specific performance against respondents Nos.1 and 2; respondents Nos.3 and 4, were subsequently, arrayed as defendants, who had purchased the property from respondent No.1, during the pendency of the suit and are the main contestants. The claim of the appellants is that, respondent No.1, through an agreement dated 1-11-1986, agreed 'to sell his agricultural land measuring 12 Kanals, for a total consideration of Rs.60,000, which was duly paid, at the time of the execution of the agreement, and the possession of the said property, was also delivered to him, but for certain reasons, finalization of the sale was postponed and during this period, respondent No.1, with mala fide intention, sold the property to respondent No.2, who further alienated the same in favour of the respondents Nos.3 and

4. Respondents Nos. 1 and 2, filed their separate written statements; they denied the execution of the agreement to sell and respondent No.2, took up the defence of being the bona tide purchaser. However, they both subsequently, disappeared from the scene and never appeared in the Court; the main contestants as stated above, are respondents Nos.3 and

4. Anyhow, issues were framed and the crucial issue remains, whether defendant No.1, did execute an agreement to sell in favour of the appellants. In order to prove the same, the appellants examined the stamp vendor, who allegedly sold the stamp paper, on which, the agreement to sell dated 1-11-1986, was executed, P.W.2, is the pupil of the scribe, who has stated that his senior has drafted the agreement to sell, whereas P.W.3 and P.W.4, are the marginal witnesses. On the conclusion of the trial, learned Civil Judge, allowed the suit, holding that the agreement to sell is established to have been executed and therefore, decreed the suit. This judgment and decree, when challenged in the appeal by respondents Nos.3 and 4, has been set aside and the suit has been dismissed.

2. Learned counsel for the appellants contends that there was sufficient evidence on the record, to prove the agreement to sell and the reversal of the findings by the learned Appellate Court, on the crucial issues, are on account of misreading and non-reading of the record. He has reiterated his submission by discussing and referring to the evidence, about the proof of the said agreement to sell.

3. I am afraid, the above contentions have no force, for the reasons that the stamp vendor has failed to prove that the stamp paper was purchased by respondent No. 1, he has not produced his register envisaging the sale of the stamp paper. Even if the register was consigned to the record room, the same should have been summoned by the appellants.

4. As regards the P.W.2, the pupil of the scribe is concerned, the scribe was alive; even if he was indisposed, he could have been examined by the Local Commission. Likewise, his record i.e. register was not summoned. In the presence of the alleged scriber, who was alive to examine some other person for the proof of the agreement to sell, obviously, is hit by the rule of withholding the best evidence.

5. For the P.W.3 and P.W.4, one of them is closely related to the appellants; moreover, there are certain discrepancies in the testimonies of both the witnesses, which have been highlighted by the Court of appeal. Moreover, when questioned in the Court, learned counsel for the appellants, has not been able to give a plausible reason as to why, the entire consideration when paid, at the time of the alleged execution of the agreement to sell, the sale was not finalized, by getting the mutation attested or sale-deed registered. Further, the alleged change of possession is not proved on the record by any documentary evidence, rather possession remained with the seller, which ultimately through defendant No.2, who is the first purchaser from defendant No.1, was delivered to respondents Nos.3 and 4; the reason now given 'that sale could not be finalized on account of some pre-emption matter, suffice it to say that this is not the case set out by the appellants, and it is settled law that no person can be allowed to make out a case beyond the scope of his pleadings. The first Court of appeal, being a Court of fact, had the ample jurisdiction to reappraise and re-appreciate the evidence and come to a different conclusion than the trial Court. This is exactly what has happened in the present case, therefore, when no misreading and non-reading has been pointed out, and the impugned judgment and decree is not shown to be contrary to law, I do not fined this to be a fit case for interference in the second appeal. Dismissed. M.I./S-136/L Appeal dismissed.