ORAL JUDGMENT
1] The trial court passed a decree for specific performance of Amendment as per
Court's order dt.
23.11.07
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contract of repurchase of the suit property on 20.09.1995 in Regular Civil Suit No.330 of 1989. This is reversed by the lower Appellate Court by its judgment and order dated 22.08.2000 in Regular Civil Appeal No.99 of 1995 and the suit has been dismissed. Hence, the original plaintiff is before this court.
2] The plaintiff was the owner of the suit property and he has sold it to the defendant by registered sale-deed dated 15.03.1989 at Exh.89. According to the plaintiff before executing the sale-deed there was an agreement to sale executed on 14.12.1988 containing the clause of repurchase of the suit property by the plaintiff. The claim for specific performance of contract of repurchase of the suit property by the plaintiff was therefore, based upon written agreement dated 14.12.1988. The trial court recorded the finding that oral agreement of repurchase of the suit property has been established. The lower Appellate Court has recorded the finding that the plaintiff has failed to produce on record the agreement to repurchase dated 14.12.1988 and the oral evidence of the contract of repurchase of the suit property is not admissible in evidence under Section 92 of the Indian Evidence Act, 1872. The appeal is allowed and the suit is, therefore, dismissed.
3] On 26.02.2004 this Court passed an order as under:
"Heard. Admit on the substantial question of law as
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framed in ground Nos. (b), (c), (f) & (g)."
4] Ground Nos.B, C, F and G stated in the memo of appeal are reproduced below:
B] Whether learned Lower Appellate Court erred in reversing judgment of trial court by merely considering part of evidence of 14 witnesses examined by plaintiff and without giving any reason as to how appreciation of evidence by trial court of 14 witnesses of plaintiff which includes relative of defendant and findings about money lending transactions as well as issue of reconveyance is absolutely illegal and erroneous.
C] Whether learned Lower Appellate Court erred in reversing the findings of trial court on the issue of money lending, without framing issue in that regard in the first appeal.
F] Whether learned Lower Appellate Court erred in law in considering defence of Respondent/Defendant, particularly when he in his evidence at Ex. 81, denied signature on written statement Ex. 10 ?
G] Whether Ex. 1-, written statement filed by Defendant after his denial of signature on W.S. in the deposition Ex. 182 ?
5] The undisputed factual position is that the plaintiff has not claimed that there was an oral agreement of repurchase of the property
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between the plaintiff and the defendant. The plaintiff has specifically pleaded that the contract for repurchase of the property was reduced into writing by way of agreement dated 14.12.1988. The trial court ought to have held that bar to admit such evidence contained in Section 92 of the Evidence Act was attracted and the oral evidence was not admissible. The suit agreement is not produced on record. The lower Appellate Court has recorded the finding that though the case of the plaintiff was that the said agreement was in the custody of the defendant, no notice to produce such agreement was given and the permission to lead secondary evidence was also not sought by producing any copy of such agreement dated 14.12.1988. The lower Appellate Court has therefore, held that the applicability of the proviso (2) below Section 92 was excluded and in terms of Section 92 of the Indian Evidence Act, oral evidence of repurchase of the property was not admissible.
6] In para 23 of the judgment of the lower Appellate Court, the finding is recorded as under:
23] Now let us see the case of the respondent that in the Isar pawati (agreement of sale) dated 14-12-1989, condition of reconveyance was recited. If in the agreement of sale dated 14-12-1988 recital about reconveyance was embodied then in the sale-deed ex. 89 also it could have been
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mentioned. The condition of reconveyance on repayment of loan is not mentioned in the sale-deed dated 15-03-1989 (Ex.89). There is also no evidence as to why in the sale-deed ex.89 the said condition of reconveyance is not embodied. The court has held that the condition of reconveyance on payment of loan is also not mentioned in the sale-deed dated 15.03.1989 at Exh.89.
6] In para 33 the lower Appellate Court has held as under:
33] I have gone through the ruling cited by Shri Phirke, learned counsel for the respondent. On going through it, one thing is clear that oral evidence under section 92 Evidence Act, is admissible in evidence. However in the present I have already mentioned that there is no evidence on record to show that there was oral agreement on 14-12-1988 in between the parties for execution of reconveyance deed on repayment of loan amount raised by the respondent. On the contrary it appears that on the date of sale transaction dated 15-03-1989 the suit land was transferred and possession was delivered to the appellant and, therefore, question of reconveyance does not arise. Unless there is execution of agreement of sale in favour of appellant, there could not be any question of reconveyance. If it is assumed that there was oral agreement on 14-12-1988 or on 15-03-9189 for reconveyance of the sale deed then also there is no oral evidence put forth by the respondent. (Emphasis supplied)
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8] In view of the aforesaid finding of fact none of the substantial question of law framed by this Court arises for consideration. The second appeal is dismissed.
JUDGE
NSN
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