Case Note & Summary
The petitioner, Narmadabai Baburao Harde, filed two writ petitions under Article 227 of the Constitution of India challenging the concurrent judgments and decrees passed by the trial court and the first appellate court in a suit for specific performance of an agreement to sell. The petitioner claimed that the respondents had agreed to sell certain agricultural land to her for a consideration of Rs. 1,50,000 and executed an agreement on 15th June 1998. She paid Rs. 50,000 as earnest money and was put in possession. The respondents failed to execute the sale deed, leading to the suit. The trial court dismissed the suit, holding that the plaintiff failed to prove the execution of the agreement. The attesting witness was not examined, and the scribe's testimony contradicted the plaint regarding the date of payment. The first appellate court confirmed the dismissal. The High Court, in writ jurisdiction, examined whether the concurrent findings were perverse. It noted that the plaintiff did not examine the attesting witness without any explanation, and the scribe stated that the agreement was executed on a different date than pleaded. The court held that the findings were based on proper appreciation of evidence and not perverse. The writ petitions were dismissed, upholding the concurrent findings.
Headnote
A) Specific Performance - Agreement to Sell - Burden of Proof - The plaintiff failed to prove the execution of the agreement to sell as the attesting witness was not examined and the scribe's testimony was inconsistent with the plaint case. The court held that the plaintiff must prove the agreement with cogent evidence, and failure to examine the attesting witness without explanation raises an adverse inference. (Paras 1-10) B) Civil Procedure - Concurrent Findings - Writ Jurisdiction - The High Court in writ jurisdiction under Article 227 will not interfere with concurrent findings of fact unless they are perverse or based on no evidence. The court found that the findings of the trial court and first appellate court were based on proper appreciation of evidence and not perverse. (Paras 11-15) C) Evidence Act - Attesting Witness - Section 68 - Where an attesting witness is available but not examined, the execution of the document is not proved. The court held that the plaintiff's failure to examine the attesting witness without any explanation is fatal to the case. (Paras 8-10)
Issue of Consideration
Whether the concurrent findings of fact by the courts below in a suit for specific performance of an agreement to sell are perverse or suffer from any legal infirmity warranting interference under Article 227 of the Constitution of India.
Final Decision
Both writ petitions are dismissed. The concurrent findings of the trial court and first appellate court are upheld. No order as to costs.
Law Points
- Specific performance
- burden of proof
- concurrent findings
- writ jurisdiction
- appreciation of evidence
