Karnataka High Court
Mariam Hussain W/O. Zaheed Hussein vs Syedani W/O. Late Syed Mustafa And Ors. on 1 March, 2007
Equivalent citations: ILR2007KAR2715, 2007(5)KARLJ530, 2007 (4) AIR KAR R 102, 2007 A I H C 2272, (2007) 4 CIVILCOURTC 778, (2007) 5 KANT LJ 530
Author: N. Kumar
Bench: N. Kumar
JUDGMENT N. Kumar, J.
1. This is a second defendants second appeal challenging the concurrent findings recorded by the Courts below that the plaintiff has, established the agreement of sale and therefore he is entitled to the decree for specific performance,
2. The subject matter of the suit is the land bearing Sy.No.51, measuring 8 acres and 30 guntas situated in Bellahalli Villege, Yalahanka Hobli, Bangalore North Taluk. The plaintiffs case is that he is in the possession, and enjoyment of the suit schedule property for more than 30 years. The defendant is none other than his elder brother. The defendant managed to secure the pahani entries in respect of the suit schedule property in his name as he was the eldest in the family. On the basis of such entries, he attempted to interfere with the plaintiffs possession. On 16.9.1978, the defendant and his children started felling the casurina trees raised by the plaintiff in the suit schedule property. They also assaulted the plaintiff which resulted in hospitalisation of the plaintiff. Plaintiff preferred a complaint to the police, Investigation was taken up. At that stage, defendant stated that he had obtained a decree against the plaintiff. The plaintiff earning to know of this, made enquiries and then came to know that an ex-parte decree had been passed against him in OS 672/73 on 3.1.7.1978. The plaintiff contended that no suit summons was served on him in the said suit. On the basis of an endorsement of refusal, the decree has been obtained. Plaintiff filed Misc. Case No. 180/78 for setting-aside the said exparte decree and he is prosecuting the matter. It is during the pendency of the said Misc. case, several well-wishers interested in both the parties, convened panchauath on 18.11.1978 at the village. In the said meeting the defendant in no uncertain terms admitted that plaintiff alone has been in possession of the suit schedule property. He further under took to execute a sale deed in favour of the plaintiff for a total consideration of Rs. 8000/-. He received the entire sale consideration of Rs.8000/- in cash on the same day.
The terms of the said agreement are reduced to writing. In terms of the agreement, the plaintiff also purchased the necessary non-judicial stamp papers and requested the defendant to execute the sale deed. The defendant evaded to do so. In view of the aforesaid agreement entered into, the plaintiff contends that the decree passed in OS 672/78 is no longer binding on him, it is not enforceable. The defendant is harassing the plaintiff. Police have colluded with the defendant. Therefore the plaintiff is constrained to seek for a declaration about the non-excitability of the judgment in 08 672/78. As he has paid the entire consideration under the agreement and the admission by the defendant about the plaintiffs undisputed possession over the property, he is entitled to a decree for specific performance of the agreement. He is always ready and willing to perform his part of the contract. It is the defendant who is evading to perform his part of the contract. Subsequently, the plaintiff filed an amendment application to amend the plaint to faring on record the subsequent event. Subsequent event was that during the pendency of the above suit, with a view to defraud the plaintiff of the fruits of the judgment and decree to be passed in the above case and with ulterior motive, the defendant has sold the plaint schedule property in favour of Mrs Mariyam Hussain w/o Mr Zahed Hussin for a sum of Rs.49,000/- under a registered sale deed dated 18.8.1983. The said sale deed is not binding on him. The purcheses was made a party to the suit as second defendant. Therefore he sought for a declaration that the decree in OS 672/78 dated 31.7.1978 is infructuous, in-executable and no longer binding on the plaintiff and for a direction to the defendant to execute the sale deed in terms of the agreement dated. 18.11.1978 and for consequential relief of permanent injunction.
3. After service of summons, the first defendant entered appearance and filed his written statement. He denied the plaintiffs possession over the schedule property for more than 30 years. It was his specific case that defendant's correct name is Syed Basha and not Pasha. He was a permanent tenant under Jodidar Murthuza Sab in respect of the suit schedule land and also other Sy Nos., as all of them belong to the erstwhile Jodi of Bellahalli Village. The defendant and the plaintiff had became divided long before and there was no interest of each other in their respective propertied. They remained separate and lived separately.
They ceased to be a family as pleaded in the plaint. The pahania came to be entered in the name of the defendant as. he was and is the actual cultivator of the suit schedule land. After the abolition of inams in the State of Mysore, defendant filed an application under sec.9 of the Act for grant of occupancy rights of the suit schedule property along with other sy.nos.51, 52, 54, 60 and 70. By an order dated 5.7.1965, the Special Deputy Commissioner for Abolition of Inams, Bangalore, treating the defendant as a permanent tenant, granted occupancy rights, he also waived premiums payable. As the plaintiff did not have any interest in the said property, he did not intervene in those proceedings nor did he challenge the grant of occupancy rights in favour of the defendant, till today. The katha has been made out in his name. He has been paying tax regularly. At the time of the change of katha, the land was actually measured and the suit schedule property measured 8 acres 30 guntas. When the plaintiff who has no right over the property, tried to obstruct the enjoyment of the property by the defendant, he was constrained to file a suit in OS 672/78. The plaintiff refused to receive the suit summons. Service was held sufficient. After examining the first defendant and his witnesses, the Court granted a decree on 30.7.1978 restraining the plaintiff from interfering with defendants possession over the suit schedule property. No appeal was. filed. However, the plaintiff has filed an application under Order 13 Rule 9 of Chit Procedure Code for setting-aside the same and it is pending consideration. The order of injunction sought for in the petition was refused The said decree is fully binding on the plaintiff. The defendant specifically overfed that there was no panchayath conversed at any time, much less during the proceedings in Misc. Case No. 180/78. the defendant never admitted that the plaintiff has been in possession of the suit schedule land. He never under took to excecute the sale deed in favour of the plaintiff far a total sale consideration of Rs.8000/-. He has not received any consideration. He has not entered into any such agreement to convey the suit land to the plaintiff. Plaintiff has managed to fabricate the alleged agreement. The suit property is worth more than Rs.50,000/-. There is no necessity for him to collude with the police to harass the plaintiff. On a complaint given by the first defendant, police after investigation have filed a charge sheet against the plaintiff in accordance with law. He further stated that when he came to know that, the plaintiffs name was entered in the RTC Pahanis, he filed a petition to the Tahsildar to remove the name of the plaintiff and to enter his name.
Accordingly, alter enquiry the Tahsildar passed an order restoring the name of the first defendant on 27.6.1981. Aggrieved by the same, plaintiff preferred an appeal before the Asst. Commissioner which came to be dismissed on 14.9.1951. The appeal against the order of the Deputy Commissioner also came to be dismissed on 5.11.1982. A further revision to the Karnataka Appellate Tribunal by the plaintiff was also dismissed. All these clearly go to show that the first defendant is in possession of the property and plaintiff is not in possession. The second defendant also hits filed a written statement on similar lines, supporting the first defendant.
4. During the pendency of the suit, first defendant died. His legal representatives were brought on record. The legal representatives have filed a written statement, contending that the deceased plaintiff and the deceased defendant and two more brothers by name Syed Mohammed and Syed Johni filed form no.7 claiming occupancy rights, in respect of the suit schedule property. The land tribunal was pleased to reject their claim first and grunted occupcoacy right only to the defendant in respect of the suit schedule property.
Challenging the said order, Writ Petition 35963/82 was filed before the Hon'ble High Court which was tranaferred to the Karnataka Land Appellate Tribunal, Bangalore District and it came to he dismissed. Misc. Case filed by the deceased plaintiff to set-aside the exparte decree in OS 672/78 is allowed but the said order is a nullity as the Civil Court had no jurisdiction to pass the said order. Plaintiffs have not acquired any right what-so-ever under the alleged agreement of sale dated 18.11.1978 or under any document. The akkkeged agreement is concocted, crested and manipulated by the plaintiffs with ulterioi motive. The first defendant being the absolute owner of the property has sold the schedule property to the second defendant under a sale deed dated 18.8.1982. The revenue officials have given a finding that it is the first defendant who is in the possession. It was contended that the first defendant has not executed any agreement of sale either on 18.11.1978 or of any other date. The said agreement do not bear the signature of the deceased plaintiff. There is no offer and acceptance of the alleged sale transaction. The alleged agreement of sale is not a concluded contract. In the absence of the concluded contract, the alleged agreement of sale cannot be enforced and the suit based on the said agreement is not maintainable. The alleged right of the plaintiff is not hereditary and the legal representatives have not inherited. any such right.
5. In the meanwhile, the plaintiff also died and his legal representatives were also brought on record. Plaintiffs have also filed a rejoinder to the amended written statement. They admit the proceedings initiated by the 1st defendant in the revenue courts to get his name restored in respect of the schedule land and they contend the dismissal of the appeals and revisions of the deceased plaintiff do not show that the plaintiff is not in possession or that the first defendant is in possession. They reiterated their earlier stand.
6. On these aforesaid pleadings, the trial court framed the following issues:
1. Whether the plaintiff proves that he is in possession and enjoyment of the schedule property as alleged in para.2 of the plaint?
2. Whether the plaintiff proves that on 18.11.1978 a panchayat was conveyed by the well-wishers of the parties and that the defendant admitted his possession over the suit schedule property and that he agreed to execute a sale deed in his favour for consideration of Rs.8000/- and received the entire consideration of Rs.8000/- in pursuance of the said agreement' on 18.11.1978? if so,
3. Whether the decree in OS 672/78 is not hinding on the plaintiff?
4. Whether the plaintiff proves that, the defendent has unlawfully interfered with his possession?
5. Is the plaintiff entitled to the declarmation and infunction and for specific performance of the agreement?
6. To what order and decree? Issues 4(A) & 4(B) frammed on 7.12.1985 4(A) Whether defendant no. 2 is purchaser of suit schedule property during pendency of the suit?
4(B) Whether the plaintiff is entitled for the reliefs against defendant no. 2?
7. The plaintiff Syed Mustafa was examined as PW1. He also examined 4 other witnesses as PWs 2 to 5, produced 15 document which are marked as EXS.P.1 to P. 15. On behalf of the defendants, the son of the deceased first defendent was examined as DW1, the son of second defendant was examined as DW2 and he has produced 42 documents which are marked as Exs.D. 1 to D 42.
8. The trial Court on consideration of the aforesaid documentary and oral evidence on record, held that the plaintiff has proved that he is in possession and enjoyment of the schedule property as alleged in paragraph 2 of the plaint. Further it held that the plaintiff has proved that on 18.11.1978, a panchayath was convened by the well-wishers of the parties and that the defendant admitted his possession over the suit schedule property and that he agreed to execute a sale deed in his favour for consideration of Rs. 8000/- and received the entire sale consideration of Rs.8000/- in pursuence of the said agreement on 18.11.1978. It further held that the decree in OS 672/78 is not binding on the plaintiff and that the plaintiff has proved the interference by the defendant and therefore the plaintiff is entitled to the relief of declaration and specific performance as sought for. ft further held that the second defendant is the purchaser of the suit schedule property during the pendency of the suit and therefore the plaintiff is entitled to relief even against second defendant. Thus, it decreed the suit of the plaintiff as prayed far.
9. Aggrieved try the said judgment and decree, legal representatives of the first defendant did cot prefer any appeal. However it is the second defendant who preferred the regular appeal. The lower appellate court on reappreciation of the entire evidence on record formulated the following points for consideration:
1. Whether the appellant prows that the finding recorded by the trial Court on issue No. 1 to 4 and 4(A) and 4(B) am erroneous and improper and hence the impugned judgment and decree passed by the court below is Hable to be set aside?
2. What order?
The Lower Appellate Court held that no case for interference with the judgment and decree of the trial court is made out. Therefore it dismissed the appeal. Aggrieved by these two judgment and decrees, the second defendent is in second appeal.
10. The following substantial questions were framed at the time of admission of this appeal:
1 Whether the findings of the Courts below that the plaintiff is entiffed to specific performance is contrary to the pleading and the materials an record and therefore is perverse?
2. Whether the findings of the Courts below that the second defendant being a purchaser during the pendency of the suit is not a bona fide purchaser for value is contrary to the materials on record and is perverse and arbitrary?
After hearing the learned counsel for the parties the Court formuleted the following Additional substantial question of law.
3. Whether the concurrent finding recorded by the court below that Ex.P1, the agreement of sale is duty executed by 1st defendant is based on statements which am in the nature of admissions, would constitute admission under section 18 of the Evidence Act, as the maker of the statements had no proprietary interest in the subject matter of the suit on the date of statement The learned counsel were heard on the said substantial question of law also.
11. Learned counsel for the appellant Sri Ashok Harnahslli assailing the judgment and decrees of thus Courts below contended a reading of the plaint, as a whole, would show that the plaintiff is asserting his title to the suit schedule property and he do not admit that the first defendant is the owner of the suit schedule property. If that being the case, the question of first defendant entering into an agreement of sale agreeing to convey the property in favour of the plaintiff would not arise and this aspect has been completely missed by both the Courts, and erroneously decreed the suit of the plaintiff. Secondly, he contended the evidence an record clearly paint out that no panchayath was conversed as contended by the plaintiff and no panchayath took place which resulted in suit agreement coming into existence and that first defendant executing the same. Thirdly, be contended the material on record clearly shows the first defendent was in peaceful possession and enjoyment of the property from the date of the grant which is Suppoted by revenue records and other record and the Courts below have completely ignored this material evidence on record in recording a finding that the plaintiff is in possession of the property, Lastly he contended in Ex.P.7 it, purports to contend the admission by the first defendant about execution of the suit agreement. If the entire evidence is read as a whole, it is clear that the word "not" is missing and therefore it cannot be taken as an admission at al1. Even otherwise, the said admission is said to be on 7.8.1984 on which day the first defendent had no proprietary interest in the suit schedule property and therefore his admission contrary to the stand taken in the written statement and against his interest, would not constitute an admission under section 18 of the Evidence Act. Similarly, he contended the admissions of DW1 regarding the signatures found in the suit document which in made 14 years after the date of the ante of the schedule property in favour of second defendant is not an admission under sec. 18 of the act as on that day, he had no proprietary interest in the property. If these admissions are excluded, the other material on record do not prove the execution of the suit agreement. In that view of the matter, the Courts below committed serious error in decreeing the suit of the plaintiff.
12. Per contra, Sri. Jaykumar S. Patil, learned Senior Counsel appearing for the L.Rs. of the plaintiffs contended that the suit is based on an agreement which came into existence in a panchayath. When the defendants have denied the very existence of the document, what the plaintiff was expected to prove is, due execution of that agreement. The plaintiff has produced the original document and got it marked as Ex.P-1, which has come from proper custody, This is a primary evidence which he is expected to produce. In so far as proof of execution of the agreement is concerned, P.W-1 has identified the signature thereon. The other witnees to the said document who have been examined also have spoken about the signature of D-1 to the said document. Coupled with that D-l, son, who is examined as D.W1-1 to the said document also has identified his father's signature. Thierrfore, Ex,P-l stands proved. Once Ex.P-1 is proved, the contents are also proved. Therefore, the Courts below committed no error in decreeing this suit of the plaintiff. Further he submitted that the question whether the suit agreement is duly executed or not being a purely question of fact, when two fact finding authorities have concurrently recorded a finding, it is not open to this Court in second appeal to interfere with the said finding of fact and no substential question of law do arise for consideration in this second appeal. Alternativaly, he submitted that, assuming that both D-1 as well as D.W-1 had no proprietary interest in the suit schedule property on the date they deposed, in the sale deed executed by them in favour of the second defendant, they have undertaken to indemnify the second defendant for any breach of the terms of the sale and therefore they have retained the interest to that extent of indemnifying the second respondent and thanefore it cannot be said that they had no interest at all. further he submitted that the evidence given in proof of signature cannot be construed as evidence given in respect of interest in immovable property and therefore the said evidence was admissible and the Courts committed no error in acting on the same. Lastly, he contended that even if the evidence of D.W-1 is to be excluded, the other material on record clearly establishes the due execution of the agreement. Therefore, he submits that no case for interference is made out.
13. As it was contended that this Court has no jurisdiction in second appeal to interfere with the concurrent finding of fact namely EX.P-1 the agreement of sale, stands proved, it is necessary to look into the law governing exercise of the power by this Court under Section 100 off CPC.
14. The Supreme Court in the case of Madan Lal v.MST, Gopi and Anr. , held that in an appeal against the concurrent finding of foot, whore both courts below ignored the weight of preponderating circumstances and allowed their judgments to be influenced by inoconsequential matters, the High Court would be justified in re-appreciating the evidence and in coming to its own independent conchisions.
15. The Supreme Court in the case of Dilbagrai Punjabi v. Bharad Chandra, , held that the High Court while hearing the appeal under Section. 100.civil P.C. has no jurisdiction to resppraise the evidence and reverse the conchusion reached by the first appellate Courts but at the same time its power to interfere with the finding cannot be denied if when the lower appellate Court decides an issue of fact a substantial question of law arises. The Court is under a duty to examine the entire relevent evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding.
16. The concurrent finding of fact cannot be interfered with by the High Court in a routine and casual manner by subsisting its subjective satisfaction in the place of the lawer Courts AIR 1999 SC 3067, Karnataka Board of Wakf v. Anjuman-K-Ibmail Madris-Un-Niswan.
17. The Supreme Court in the case of Hafaeat Hussain v. Abdul Majeed , held as under:
No dubt, it has been repestealy pointed out by this Court that concurrent findings recorded by the trial Judge as well as the Ist Appellate Judge on proper appreciation of the materials an record should not be disturbed by the High Court, while exercising second appellate jurisdiction, but at the same time, it is not an absolute rate to be applled universally and invariably since the exceptions to the same also were often indicated with equal importance by this Court, ond instances am innumerable where despire such read and necessiry warranting such interference, if the second appellate court mechanically declined to interfere, the matter has been even relegated by this Court to the second appellate court to properly deal with the claims of parties in the second appeal objectively keeping in view the parameters of consideration for interference under Section 100 of the Civil Procedus code.
18. The Supreme Court in the case of Krishna Mohan Kul @ Nani Charan Dul and Anr. reported in AIR 2003 SC 4351, held that the scope for interference with concurrent finding of fact while exercising jurisdiction under Section 100, CPC is very limited, where the trial Court and/or the first Appellate Court misdirected themselves in appreciating the question of law and placed the onus on the wrong party certainly there is a scope for interference undar Section 100, IFC after formulating a subatontial question of law,"
19. In the case of Neelakantan and Ors. v. Mallika Hrgum , Supreme Court held that, the findings of fact recorded must be set aside where the finding has no basis in any legal evidence on record or is based on a misreading of evidence or suffers from any legal infirmity which materially prejudices the case off one of the parties.
20. The Supreme Court in the case of Yadarao bajiba shrawane (dead) by l.rs v. Nanilal Harakchand Shah (Dead) and Ors. , has held as under:
The position is well setttled that when the judgment of the final Court of facts is based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is also well settied that admission of parties or their withnesses are relevant pleces of evidence and should be giver due weightage by Courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal.
Therefore, the law on the point is well settled. The concurrent finding recorded by the trial Judge as well as the First Appellate Judge on proper appreciation of the material on record should not be disturbed by the High Court while exercising its second appellate jurisdiction. However, it is not an absulate rule to be applied universally and invariably. When the Courts below ignore the weight of proponderating circumstances, allow the judgments to be influenced by inconsequential matters, when their judgment. is based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring the material evidence, or misdirected themselves in appreciating the question of law and place the onus on the wrong party, or when their finding has no basis in any legal evidence on record or on a misreading of evidence or suffers from any legal infirmity, the High Court would be justified in reapprecisting the evidence and coming to its own and independent conclusion. However, the High Court should not in routine or casual manner by substituting its subjective satisfaction in place of the lower courts, interfere with the concurrent finding of fact.
21. Let me examine the findings of the Court below keeping in mind the aforesaid legal principles to find out whether a case for interference is made out.
22. From, the aforesaid facts set out above, it is clear that the relationship between the parties is not in dispute. It is also clear that the plaintiff and the first defendent were not the members of the joint family. The material on record shows that the suit schedule property were inan lands. The first defendent made an application under section 9 of the Act for grant of occupancy rights. Admittedly, the deceased plaintiff did not make any application for grant of occupancy rights in respect of the said land. The suit schedule land was granted to first defendant by Special Deputy Commissioner, Banglore, on 05.07.1965 along with the other lands in Sy.Nos.51, 52, 54, 60 and 70 in case No. 19/ 60-61, under Section 5 of the Act, treating him as permanent tenant. He paid the premium, His name was muteted in the revenue records. He has been paying taxes regularly. At the time of making out katha, the property was measured and it was found that it measured 8 acres 30 guntes. However, somewhere in the year 1980, plaintiff's name appeared in the mutation register in respect of the suit schedule property. On coming to know of the same, the first defendant made an application to the Tahsildar to delete his name. Accordingly, the Tahaildar after enquiry passed an order deleting the name of the plaintiff in column 12(2) of the RTC and inserted the name of first defendant by order dated 27.05.1981. Aggrieved by the said order, the plaintiff' preferred an appeal to the Assistant Commissioner. Appeal came to be dismssed on 14,09,1981. Against the said order, the plaintiff preferred a second Appeal to the Special Deputy Commissioner, Bangalore, which came to be dismissed on 05.11.1982. The plaintiff preferred a revision to the Karnataka Appellate Tribunal which also came to be dismissed. That is how those proceedings have reached the finality.
23. It is also on record that, complaining that the plaintiff ia interfering with the first defendants possession over the suit schedule property, he filed ft suit in O.S.No-672/78, on the file of the Addl Second Munsiff. Bangalore. Suit summons were refused by the plaintiff. The Court held that the service is sufficient, recorded the evidence of first defendant and his witness, after going through the oral and documentary evidence on record, decreed the suit on 30.07-1978 restraining the plaintiff from interfering with the first defendant's possession and enjoyment over the suit schedule property. The plaintiff filed Misc. No. 180/78 for setting aside the said order. Now the said Mise. No. is allowed and that exparte decree and injunction is set aside. It is submitted that subsequently, the said suit came to be dismissed for non-prosecution.
24. It is in this background we have to appreciate the case of the plaintiff. A reading of the plaint clearly shows that, he is claiming possession of the suit schedule property 30 years prior to the date of the suit. He do not whisper his source of tile to the property. It is his specific case that the first defendant being his elder brother, managed to get the mutation entries made in his name. Now the proceedings referred to supra shows that there is no truth in the said allegation. the suit schedule property was granted to the first defendant. On the basis of the said grant, his. name was mutated and that mutation was challenged by the plaintiff in. all forume and failed. Therefore, it is clear that the plaintiff who ii seeking relief of specific performance of an agreement of sale is not admitting the first defendant's title to the suit schedule property. It is his specific case that because of this dispute between the brothers, a panchayath was held on 18th November 1978, during the pendency of the Miscellenecus case, at the instance of several well wishers interested in both the parties. In order to appreciate this case of panchayath being convened, who were the panchayathdars, what transpired in the panchayath and what is the agreement entered into, it is necessary to look into the evidence on record.
25. The plaintiff examined himself as P.W-1. In the evidence recorded on 01.09.1989, he has deposed that the suit property came to his share in the partition, a case which is not pleaded by him in the plaint. However, he admits that Bellahalli is a Jodi Village. The suit land was earlier Jodi property. The said property was re-granted in favour of the first defendant. He is cultivating the lands personally. He has been cutting the survey trees once in five years When the first defendant and his son wanted to cut the survey trees, the dispute arose between the parties, which resulted in assault, criminal case and admission of the plaintiff to the hospital It is during the pendency of the Miscellaneous case, the elder of the village interfered and panchayath was held. According to him the panchayath was held in Bellahalli school. The Chairman of panchayath, Nagaraj Vice Chairman of the panchayath, Mahaboob the SubInspector of Police, Nagaraj, Akbnr Ali- member of the Panchayath, Syed Mohemood, Nanjundappa, Syed Gulab and Chairman of Hosakote Panchayath - Muniswamappa, were all present at the panchayath. In that panchayath it was decided that the plaintiff has to pay Rs. 8,000-00 to the defendant and the first defendant should execute corrveyance deed. The proceedings of the panchayath was reduced into writing on white paper. Ex.P-1 is the agreement entered into. The secretary of the panchayath, one Venkatarao is the scribe of Ex.P-1. The scribe also has signed the said document, After execution of Ex.P-1 it was deposited with the Chairman Nagaraj. The plaintiff paid Rs. 8,000-00 to the first defandent. On the date of Ex.P-l, the Chairma, Vice Chairman, first defendant, plaintiff and Syed Pasha went to the Sub-Registrar's office for registering the sale. The first defendant purchased stamps for for which the plaintiff paid the amount and the sale deed was drafted on the same day which is marked as Ex.P-2. The Secretary, V Venkatarao drafted the sale deed which runs to four sheets. After drafting, the first defendant went away and did not enter the sub-Registrar office for registering the sale deed. Thereafter, a legal notice was issued as per Ex.P-3, Reply was sent as per Ex.P-4. Then he filed Mis. Petition, which was allowed. The ordccr passed in Mis. Case is confirmed by the High Court. He has further deposed that the first defendent also had lodged a complaint against him, which was registered as C.C.No.3744/80 which came to be dismissed. In the said proceedings, he has given evidence as per Ex.P-7. The second defendant is the resident of Bangalore. He has purchased the land adjoining the plaintiff's land prior to the dispute between him and the first defendant.
26. It is his specific case in the cross examination that in partition with his brothers he got 20 acres of land including the suit land. He denied his knowledge about the application made by his brother before the Special Deputy Commissioner for grant of occupancy right in respect of several other survey numbers. He admits the proceedings before the Tahsildar. Assistant Commissioner and the Karnataka Appellate Tribunal. He admits that after division of the property about 45 years ago, he and his brothers have started living separately. It may be in the year 1944. According to him,, the panchayath was convended at about 11.00 am. It is the first defendant who brought the panchayathdars P.S.I who has signed in Ex.P-1 brought the Chairman of the village. The Village Accountant signed in Ex.P-1 is the Village Accountant. He says that he cannot identify the signatures in Ex.P-1 since he do not know how to read and write English. He cannot identify any of the signatures in Ex. P-1, since he is an illiterate.
27. Accordingly to him Ex.P-1 and 3 were executed on the same date. He kept Rs. 8,000-00 in his HOUSE. He had kept about 15,000-00 in his house. The Secretary of the Village Panchayath brought the stamp paper. He purchased the stamp papers from the Sub-Registrar;s Office, Bangalore. He further deposed that he do not know the date of Ex.P-1 and he cannot say the date and mouth of Ex. P-1. On the date of Ex.P-1 only the negotiations took place. According to him Ex.P-1 aaad P-3 are executed on the same day. Ex.P1(d) is struck off by one Akhar Ali, the brother of Guljar Ali who had signed.
28. He has examined P.W-2, one of the attesting witness to Ex.P-1 by name Nanjundappa. He has deposed that the suit property is in possession of the plaintiff since 30 years. He has seen him cultivating the lands. About 15 or 16 years back, one day he had been to Konmur village. There, he heard that in Bollahalli the plaintiff and the first defendant had quarreled and the police had visited the village. Out of curisity, as he knew the plaintiff, in order to know his condition, he went to Bellahalli. He went near the school building, there were about 20 to 30 persons assembled in the school building. The plaintiff, defendant, Sub-Inspector of Police, village Accountant, Chairman of the village and other police were gathered there. A panchayath was held and it was decided in the panchayath that the plaintiff should pay a sum of Rs. 8,000-00 to the defendant and the defendant has executed an agreement in respect of the land in farvour of the plaintiff. He is one of the witness to the agreement Therefore he is the panchayathdar. He has affixed his L.T.M on the agreement. The said agreement is at Ex.P-1. He was the only person who has affixed his LT.M and the other persons have signed on the agreement. In his presence the defendant and his children affixed their signatures on the agreement. The Secretary and the S.L chairman of the village panchayath and Vice Chairman also have signed on the agreement. It was agreed by the parties that the defendant has to execute a registered sale deed in favour of the plaintiff. In his presence the plaintiff paid a sum of Rs. 8,000 00 to the defendant and thereafter he has signed the document. In the cross examination, he has deposed that the panchayath was held on Sunday, he had gone to that panchayath at 10 a.m. Basha had invited him to panchayath. No body was present at that time. Panchayath started after he reached there. Basha had hold him that there is some galata in his house and that he had invited him to advice parties and he did not inform about the panchayath to anybody else at Kammur village. When he reached the panchayath place, two persons of Kannur were present and the Chairman was also there. He does not know about the other two persons. About 10 to 15 members of Bellahalli village were present. He cannot give their names. He do not know the scribe of the document. Pyarusab read over and explained the document to him. Same body signed at the first instance and he do not knew them. He affixed his L.T.M after the signature of the scribe. He do not know whether the deceased plaintiff had signed the document or not. The said document was written between 10.30 am and 11 am. The panchayathdars, himself and Sub-Inspector had decided the value of the land. Thereafter, plaintiff went to his house and brought the money. On the date of panchayath a police complaint was lodged. Due to the complaint the Sub-Inspector was present there. He do not know whether constables were present or not. The S.I. was in uniform. He came to know that the complaint was filed against the deceased first defendant. Immediately, after affixing his LTM it was attested by somebody else, and he do not remember his name. After the execution of the document all of them returned back to their house. Except the agreement, no other document was executed on that day.
29. P.W-3 the Superintendent of Police, has deposed that he knows about Ex.P-1 which is an agreement of sale executed by the deceased first defendant in fevour of deceased plaintiff. According to him, the said agreement was executed on 18.11.1978. He identifies Ex.P- 1. He says that he is one of the witnesses to Ex.P-1. He identifies his signature of Ex. P-1(a). He further admits that Ex.P-1 was executed at Bellahalli school building before the village panchayathdaras. The pecnchayath Chairman and others such as document write and witnesses have signed Ex.P-1. He identified the signature of the deceased defendant which is at Ex.P-1(a). He admits that there are several complaints, counter complaints between the deceased plaintiff and the defendant. Criminal cases were registered against the defendant and he has deposed that plaintiff was in prossession of the property during his period. In cross examination he has deposed that he do not remember whether there was any complaint by any of the parties on the data of execution of Ex.P-1. According to him Bellahalli was a factuious village. In his routine course, he visited that village on that day. He was in uniform. He had been to that village on that day on his official duty. He do not remember as to whether he had gone alone or along with his staff on that day. There was no prior intimation to him about the panchayath. When he went there, the panchayath had already commenced. Before he went to the spot, he was not aware of the proceedings of the panohayath. The document was written only after he went there. The panchayathdars who wane present at that time gave instructions to draft the Agreement. It was written on Sunday. There were no talks about execution of another document on that day itself. Gulzar Ali who was one of the signatory to the agreement struck of his signature and returned back as he has name urgent work in the temple. He was not present till the completion of the patiduayath. He had signed the document after it was drafted. He do not know whether the plaintiff had signed the agreement or not. The President of the pandiayath was the first signatory to the document. The first defendment has signed as a second witness to the document. After the signature of the panchayathdars, the first defendant has signed the document. Syed Gulzar Ali, Pyaru Sab, Syed Akbar Ali and his brother Mehamood, Vice President-Nagaraju and the document writer have also signed on the document. The said Nagaraju drfted the agreetment as per Ex.P-1. Regarding payment of amount is concerned, it was decided in his pretience only. On the date of agreement itself, money was brought from the house and paid to the defendant. He do not remember who had identified the LTM of P.W.2. He do not know the experience of Nagaraj in deed writing who had drafted Ex.P-1. There were no notes prepared earlier and Straight away the agreement was drafted on a white paper as per the decisions of the panchayathars. PW-2 came to the spot after he reached there.
30. Than we have the evidence of P.W-4. He has stated that he knows about the panchayath add the examination of the agreement by the deceased defendant in favour of the deceased plaintiff. He was present when the agreement was written. He has affixed his signature as witness to the said agreement. He has identified his signature. According to him, the said agreement was written in the primary school of Bellehalli. Nagaraj, Chairman and Vice Chairman-Mahboob, Sub-Inapector govindaraj and many people were present. They have signed it. He has deposed that he knows Kannada and his signature is at Ex.P(a). One Nanjundappa has affixed his thumb impression and he was also present on that day. When the panchayath was held and agreement was written, he was the Chairman of the village. The children of the plaintiff and the plaintiff had invited him for the panchayath. On the date of panchayath, it was decided in the pamchayath that the plaintiff should pay a sum of Rs. 8,000-00 to the deceased defendant and in turn the defendant has to execute a registered sale deed in respect of the suit property in favour of the plaintiff within 15 days. Accordingly the terms and condition were reduced to writing. The deceased plaintiff paid a sum of Rs. 8,000-00 to deceased defendant as per the terms of the agreement. He identifies his signature at Ex.P-1(f). In cross examination he has deposed that about 5 days earlier to the panchayath, the son of the plaintiff came to him end invited him to the panchayath. He was informed the date of panchayath by the son of the plaintiff.
31. P.W-5 identifies Ex.P-1 and says that he was present when it was executed. The plaintiff and his children Govindaraj, Muniawamappa, Namjundappa, Nagaraj, hinself and many villagers were assembled at that time. Defendant and his children executed P-1 in favour of the plaintiff. The defendant had agreed to sell the property to the plaintiff. The defendant had agreed to execute the registered sale deed in favour of the plaintiff within 15 days. The deceased defendant had affixed his signature at Ex.P-1 in his presence which is at ExP-1(a). The children of the defendant also have signed the said document. According to him, the plaintiff had kept ready the drafted sale deed, but the defendant failed to execute the registered sale deed. The original sale deed was prepared near Taluk Office. He was present on that day. The defendant was present and he gave instructions for drafting the original sale deed. On that day, the children of the first defendant were not present.
Therefore, the first defendant told that the document will be registered in the presence of his children on next day and he returned back to village thereafter. He never turned up. In cross examination, he has deposed that there was a panchayath in the village and it was decided in the panehayath that the plaintiff was cultivating the suit land and the defendant has executed the Bale dead in favour of the plaintiff and accordingly, the plaintiff has paid Rs. 8,000-00 and the amount was paid by the plaintiff to the defendant and the defendant had executed the agreement. The agreement was executed in Bellahalli. The agreement was read over and explained (sic). Ex.P-2 was not written near the Taluk Office. They requested the defendant to affix the signature on Ex.P-2. He refused to do so on the pretext that his children have not come. The ponchayath was held on Sunday and he was in his house. The defendant Invited him to the panchayath. It was about 10 am and he do not remember who were present when he was invited to panchayath. At the time of panchayath the deceased defendent, his children, the plaintiff and children, Chairman Nagaraj, Vice Chairman Mahaboob, himself, Nenjundappa, Muniseamappa and other villages ere present. In the mean while, Sub-Inspector had also come there. The agreement was drafted on a white paper. It was written by one person of Ydlahenka. He do not know his name. He do not remember who gave instructions to draft the agreement. The signature of his elder brother Gulzar Ali was struck off. The Sub-Inspector had come there in uniform. Ho came there after he reached the spot. He him not seen whether the plaintiff has affixed his signature to the agreement. The scribe of the agreement read over the agreement after it was drafted.
32. The reason for setting out the evidence of these witnesses on which the plaintiff relies on is only to find out whether the Courts below who are the final Courts of facts have carefully considered these oral evidence on record. From the aforesaid oral evidence it is clear that the plaintiff has not stated in what circumstances, how and why the Panchayath was convened. He is unable to identify the signature in Ex P-1, since he do not know how to read and write. According to him the Secretary, Venkatarao, drafted the agreement as well as the sale deed. From the evidence of P.W-2, it ia clear that he was not a Panchayathar invited by the plaintiff find the first defendant. In fact, he was not aware of the pandhayath, He was only a curious on looker who went there be knew what is happening, as he had heard that the plaintiff and the first defendant had quarried and the police had visited the villege and therefore he is not the panchayathdar. His further evidence discloses that on the date of the panchayth, the Sub-Inspector was at the spot because of the complaint lodged against the first defendant. That explain his presence, not as a panchayathdar. On that day, no other document other than Ex.P-1 came to be executed and after the panchayath, everyone went back to their houses. It is clear that the Sub-Inspector- P.W-3 was also net the panchayathdar. He had no notice of the panchayath. He went to that village for his official work and than he came to know about the panchayath and then he want to the place where panchayath was taking place and he has also attested Ex.P-1. He says that Ex.P-1 is the only document which was drafted on that day. However, according to him the agreement was drafted by Nagaraj and not Venkartarao, the Secretary. The other two witness P.Ws.- 4 and 5 also state that it is Nagaraj who wrote the agreement in the primary school of Belahalli and it is children of the plaintiff who had invited him to the Panchayath. A reading of the aforesaid evidence makes it clear the except P.Ws-4 and 5, the other three witness were not aware of the panehayath at all, let alone they being requested to be the panchayathdars. The plaintiff it unable to identify the signature of any one on Ex P-1. If his evidence is to be believed according to him, the document is drafted by the village accountant by name venkatarao. According to other witnesses it is drafted by the scribe by name Nagaraju. Their evidence do not disclose who gave instruction to the scribe to draft. Their evidence do not disclose the discussion which took place in the panchayath, what was the rival contentions, what was the agreement entered into and in what content that agreement was reduced into writing. In fact, nobody speaks about the rival contentions between the parties at all. All of them admit the pendency of civil litigation, pendency of criminal case and police complaints between the parties. Before the validity of the agreement can be gone into, as it is the specific case of the plaintiff that in order to resolve the dispute between the parties, the panchayath was convened and in the panchayath, the dispute was resolved and then this agreement came into exurtence. If the evidence of these witnesses taken as a whole, it do not establish that as contended by the plaintiff that any penchayath was convened by the well withers interested in both the parties, any discussion took place, what was the dispute, what was the decision of the Panchayathdars, and whether parties agreed to such desecration and then excludes Ex.P-1, the alleged agreement of sale. On the controcy, P.Ws-2 and 3 were not aware of the panchayath, they came to the parichatyath on that day oar some other purpose and they were curious on-lookers. But at the time of drafting of Ex.P-1, they were present find attested the document P. W 4 saysthat he was requested to be present by the plaintiff and his children. P.W-5 saya that he was requested to be present by the first defendant and his children. Therefore, it is clear that this evience of five witnesses do not establish the case of the plaintiff that the well wishers interested in perties convened the panchayath to resolve the dispute. The discrepancy in the evedence of each one of the witness is too wide to be ignored. Not one witness corroborates the evidence of another witness. It is full of inconsistency. The evidence f none of these witnesses do infuse confidence which can be acted upon by the Court. The courts below has clearly misread the evidence, did not notice the glaring contradictions in the evidence are influenced by inconsequential matters, ignored the weight of preponderating circumstance and recorded finding which has no basis in any legal evidence. Therefore, the evidence of these witness neither establishes the convening of the panchayath, resolution of the dispute in the panchayath or excuution of Ex.P-1 in the said panchauyath. It is to be noticied here that Ex.P-1, is not a simple agreement of sasle entered into between the parties voluntarily where one party is interested in selling his property and the other interested in purchasing the property, after mutual discussion and negotiation agreed on a price and then reduce the terms in writing. It is a case of want of consensus ad-idem. Similiary execution of a document does not mean signing of a document. The word "execution" has a difinite connotation in law. The person signing the document must be aware of the contents of document and consciously sign the document in token of acceptance of the contents of the said document. If the execution of a dicument is denied it is for the party who alleges the due execution to prove by acceptable evidence that the executant affixed his signature to the document after being aware of the contents of the document and in token of its acceptance so as to bind him. When it is stated that the executant executed an agreement of sale it must be shown that the executant had agreed to sell the property end in token of acceptance of such agreement he has affixed his signature on the said agreement of sell. The evidence on record do not disclose that the defendant affixed his signature to the the suit document agreeing to sell the schedule property in favour of the plaintiffs or in view of the decision of Panchayadars or on the basis of what was agreed to in the said Panchayat. Therfore the finding of the courts below that the agreement of sale is duly executed by the first defendant, as it bears his signature on the document is illegal.
33. It is in this contest, it is necessary to see the evidence of D.W.1, the son of the first defendant.
34. It is to be remembered that prior to the filing of the suit a legal notice was sent. Reply was sent to the legal notice. The first defendant categorically denied convening of the panchayath, execution of any agreement and his signature in the said agreement. In the written statement which is filed in the court the said stand has been reiterated. After the death of the first defendant, his LRs who were brought on record also filed a written statement reiterating the said stand. D.W.1 was examined on 28.10.1986, 12 years after the execution of the sale deed in favour of the second defendant. In his examination in chief he has categorically stated that his father has not executed any agreement of sale in favour of the plaintiff on 18.11.1978 in respect of suit schedule property. But he admits that thee was a panchayath in respect of the suit schedule property in the school. He do not remember the proceedings of the panchayath. However, in cross examination, he admits that on 18.11.1978 the panchayath was convened in their village in the school in connection with the dispute between his father and the deceased plaintiff. He can identify the signature of his father. His father was an illiterate, he used to affix his signature in kannada. He identifies the signature of his father in the vakalath, which is marker as Ex.D-1(a). Thereafter, he identifies the signature of his father at Ex.P1(a) and his signature at Ex.P-1(b). He has deposed that Muniswamappa, Nagaraj, Syed Akbar Ali, Nanjundappa and Muniswamappa, were all present in that panchauath. His younger brother was also present and he can identify his signature. He states the also present and he can identify his signature. He states that there might have been an agreement on the date of panchayath and his father knows about it. On that date panchayath was convened in respect of the suit schedule property. One Sub-Inspector of Police was also present at that time and he do not remember his name. Ex.P-1 might have been written on the date of panchayath. Himself, his father and his brother had affixed their signature in the school on that day. The panchayathdars also signed on Ex.P-1 in their premises. His father might have signed an agreement of sale in favour of the plaintiff in respect of the suit schedule property, but his father knows about it. The fact of holding of panchayath was know to the entire village and also the nighbours of the land and their village is a small village. He father states that it sis true that his father has not delivered the property to the second sefendent. He do not know about the preparation of the sale deed in favour of the plaintiff by his father near the Sub-registrar's Office as per Ex.P-2. The second defendant had put up barbed wire fencing along with the stone pillars around the property. There is no barbed wire fancing to the suit schedule property. He admits that his father sold the suit property to the second defendant. He had deposed that there was no publication of litigation in respect of the suit schedule property in their village earlier to the sale in favour of the second defendant. The panchayath in the school was held on one Sunday. The panchayath was commenced from 10 am and completed by 12 pm. He do not know who is the scribe who wrote the document. The plaintiff did not publish the fact of panchayath after the panchayath. He denies having filed any written statement setting that the property was not delivered to the second defendant. Towards western side of the second defendant has constructed a farm house and has raised coconut trees, guava and sapota trees. He admits that immediately after the purchase of the land from his father towards western side of the suit schedule property, the second defendant has put up fence around property.
35. therefore, the son has given a go by to the stand taken by his father in the written statement. He has admitted the panchayath, signing of Ex.P-1 his father and himself signed the said agreement and he asserted possession was not delivered to the second respondent under the sale deed. The stand which is totally contrary to what has been pleaded by them before the Court affecting interest of the second defendant. In addition to that we have the evidence of D-1 on which reliance is placed which is at Ex. P-7. Ex-P7 is the certified copy of the evidence of D-1 which he has given in the criminal case filed against the plaintiff. The relevant portion on which reliance is placed is extracted hereunder for proper appreciation:
It is not true to suggest that we were (sic) cultivating the lands before the partition of our lands. We were separated about 30 years ago. It is true that I executed an agreement before the panchayathdars agreeing to sell S.No. 50 in favour of the accused no. 1 in the year 1978. It is not true to suggest that received Rs. 8,000-00 in the presence of panchayathdars in that respect. It is false to suggest that I delivered possession of the said land to -I on that day itself.
(Underlining by me)
36. Relying on this evidence and evidence of D.W.-1 it was contended that execution of Ex. P-1 is admitted and therefore the finding recorded by the courts below cannot be found fault with.
37. In so far as Ex.P-7 is concerned, the evidence is written in the writing of the learned Judge. If the entire evidence is read as a whole, the word 'not' is missing in that sentence, where the first defendant has admitted to have executed the agreement. In the earlier sentence and the subsequent sentence the word 'not' is mentioned. In this sentence the word 'not', is no mentioned. In the content in which the evidence is recorded, it is clear that it is a mistake committed by learned judge in not mentioning 'not' and it is read 'not', there is no admission at all.
38. Even otherwise, this evidence in reported on 07.08.1984, when the defendant had no interest in the suit schedule property. It is not in dispute between the parties that on 18.08.1982 during the pendency of the suit, the first defendant sold the suit property in favour of the second defendant under a registered sale deed dated 18.08.1982 which is marked as Ex.P-10. Both the first defendant when he was giving evidence on 28.10.1986, they had no interest in the suit schedule property. The question is whether these admission made by a person who had no proprietary interest in the property could be treated as admission so as to record a finding that the suit document is executed.
39. In this regard it is necessary to have a look at Section 18 of the Indian Evidence Act, which reads as under:
Admission by party to proceeding or his agent by (sic) in representative character; by party interested in subject-matter; by person form whom interest derived-Statements made by a party to the proceedings or by an agent to any such party, whom the court regards, under the circumstance of the case, as expressly or impliedly authorised by him to make them. Are admissions.
Statements made by parties to suits, suiting or sued in a representative character, are not admission, unless they were made while the party making them held that character.
Statements made by-
(1) persons who have any proprietary or pecuniary interest in the subject matter of the proceeding, and who make the statement in their character of persons so interested, or (2) persons from whom the parties to the suit have derived their interest in the subject-matter of the suit.
are admission, if they are made during the continuance of the interest of the persons making the statements.
40. In fact the learned Author Sri Woodroffe while interpreting this provision has observed as under:
Statement whether made by parties interested, or by persons from whom the parties to the suit have derived their interest, are admissions only if they are made during the conformance of the interest of the persons making the statements. It would be manifestly unjust that a person, who has parted with his interest in property, should be empowered to divest the right of another claiming under him, by any statement which he may choose to make.
41. Oudh Court in the case of J.C. Galstaun v. Abid Husain reported in AIR 1924 Oudh-page 1924, held as under:
This statement however is not admissible as an admission against the plaintiff under Section 18 of the Evidence Act. Statements made by persons from whom the parties to the suit have derived their interest in the subject matter of the suit are admissible as, admission, only when the admission are of a date prior to the date of the transfer. Statements made by persons in possession of property and qualifying or affecting their title thereto are receivable against the persons claiming though them by title subsequent to the admission.
42. The High Court of Jammu and Kashmir in the case of Hardatt Sharma v. Jaikishen Shamlal & Sons reported AIR 1983 J & K-page No. 36, held as under:
...True, Under Section 18 of Evidence Act, statements made by persons from whom the parties to the suit have derived their interest in the subject matter of the suit, are binding on such parties as their admission, nevertheless, before the same may bind them, it has further to be shown that the statements were made by those persons during the continuance of their interest in the subject matter, and obviously so, because, if would be highly unjust and improper to divest a person of his right in the property, lawfully acquired by him form another, on the basis of the latter's admission after his own interest in the property has ceased to exist.
43. The Madhya Pradesh High Court in the case of Chironjilal v. Khaton Bi reported in AIR 1995 MP-241 para 11:
Under Section 18 of the Evidence Act. The admission of a person could be an admission only if it would be made during the continuance of his interest but once he has parted with his interest in the property his admission in not admissible. That would be manifestly unjust that a person who has parted with his interest in property should be empowered to divest a right of another claiming in him by any statement which he may choose to make subsequently.
44. Therefore, it is clear that from the aforesaid statutory provisions, statement of law and the decisions that, statements made by the parties to the proceedings or their agents are admission in the suit. However, in order to become admission, the party should be a person interested in the subjected matter. The statement should be made in their character as persons so interested, then only their statement could be treated as admissions. Before the Court can act on the statement of a party to the proceedings and in holding that the said statement in an admission, the said statement should have been made by a person who has proprietary interest or a pecuniary interest in the schedule property so as to harm the interest of the person who owns the property on the date of the statement, cannot be treated as admission. If on the day of the statement were made he has no pecuniary or proprietary interest, the said statement cannot be treated as admission under Section 18 of the Indian Evidence Act. It would be manifestly unjust that a person, who has parted with his interest in property, should be empowered to divest the right of another claiming under him, by any statement which he may chose to make. Otherwise it encourages dishonesty, and the legal proceedings would loose its solemnity. "During the continence of interest" mentioned in Section 18 only means while the interest was subsisting and before that interest was parted with. Admission in order to be relevant must be made during the continuance of the interest of the person making them. Statements by person from whom the parties have derived interest are admissible only when the admission are of date prior to the date of the transfer. A purchaser to the purchase.
45. In this background, if we look at the evidence of D.W.-1, he has deposed before the Court 14 years after conveying the property in favour of the second defendant. He has given evidence contrary to the stand taken by them in the legal notice prior to the date of the suit and stand taken by them in the written statement and in fact, the stand taken by them in the examination in chief. Therefore, it is clear that much water had flown in these 14 years and D.W.-1 has joined hands with the plaintiff and has given evidence which is favourable to them so as to defeat the right of the second defendant to the suit schedule property.
46. Therefore, both the Courts committed serious error in acting on the so called admission of D.W.-1 in coming to the conclusion that the suit agreement bears the signature of the first defendant and therefore it is duly executed. As both the Courts below have not only misread the evidence on record, ignored the material evidence on record and relied on the evidence which is inadmissible in evidence and recorded the said finding though it is a concurrent finding of fact, this Court in its jurisdiction under Section 100 is duty bound to interfere with the said perverse finding in order to do justice between the parties.
47. The material on record disclose that this property was granted to the first defendant 30 years prior to the date of the suit. Mutation entries were made in his name. Attempt to delete the said mutation entry by the plaintiff was not successful. The defendant also obtained a decree of permanent injunction against the plaintiff. The material on record shows that he was cultivating the land and he has raised (sic) trees and on 18.08.1982 he has handed over possession of the property from that day till today. Ignoring all these material evidence on record only relying on the interested testimony of the plaintiff and his witness, whose evidence, as already stated do not infuse confidence, the courts below have recorded a finding that the plaintiff is in possession and the first defendant in not in possession. The said finding is perverse and capricious and cannot be sustained.
48. In that view of the matter the judgment and decree of the Courts below cannot be sustained, liable to be set aside and the suit of the plaintiff is liable to be dismissed.
Appeal is allowed. Judgment and decree of the Trial Court and Lower Appellate Court are set aside. Plaintiffs' (sic) is dismissed. Parties to bear their own cost.