Case Note & Summary
The petitioner, Malaga Realtors Private Limited, filed a writ petition under Article 227 of the Constitution of India challenging the judgment and decree dated 30/09/2017 passed by the District Judge, Pernem, Goa, in Regular Civil Appeal No. 10/2015. The appeal arose from the judgment and decree dated 30/04/2015 of the Civil Judge, Senior Division, Pernem, in Special Civil Suit No. 11/2012/A, which dismissed the petitioner's suit for specific performance of an agreement to sell dated 05/05/2008. The petitioner claimed that the respondents, as owners of property bearing Survey No. 35/1 at Hassapur, Pernem, had agreed to sell the property for Rs. 1,50,00,000 and received an advance of Rs. 25,00,000. The respondents denied the agreement and alleged that the signatures were forged. The trial court dismissed the suit on the ground that the petitioner failed to prove the execution of the agreement, as the attesting witnesses were not examined and the handwriting expert's report was inconclusive. The first appellate court confirmed the findings. The High Court held that the concurrent findings of fact were based on evidence and not perverse, and therefore declined to interfere under Article 227. The writ petition was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Writ Jurisdiction - Article 227 of the Constitution of India - Interference with Concurrent Findings - The High Court in exercise of its supervisory jurisdiction under Article 227 will not interfere with concurrent findings of fact unless they are perverse or based on no evidence. The petitioner failed to prove the execution of the agreement to sell as the attesting witnesses were not examined and the handwriting expert's report was inconclusive. (Paras 1-10) B) Evidence Act - Proof of Execution - Section 68 of the Indian Evidence Act, 1872 - Attesting Witness - For proving a document required by law to be attested, at least one attesting witness must be called. The plaintiff's failure to examine any attesting witness or the handwriting expert resulted in the agreement to sell not being proved. (Paras 5-8) C) Specific Relief Act - Suit for Specific Performance - Burden of Proof - The plaintiff must prove the agreement to sell and its terms. The concurrent findings of the courts below that the agreement was not proved were based on proper appreciation of evidence and cannot be disturbed. (Paras 9-10)
Issue of Consideration
Whether the High Court under Article 227 of the Constitution should interfere with concurrent findings of fact by the trial court and first appellate court dismissing a suit for specific performance of an agreement to sell.
Final Decision
The writ petition is dismissed. The concurrent findings of the courts below are upheld. No order as to costs.
Law Points
- Specific performance
- burden of proof
- attesting witness
- Section 68 Evidence Act
- Article 227
- concurrent findings
- writ jurisdiction
