Case Note & Summary
The case involves a second appeal filed by the original plaintiffs (appellants) against the dismissal of their suit for specific performance of an agreement to sell immovable property. The appellants claimed that the respondent (original defendant) had agreed to sell a piece of land to them for Rs. 2,000 and executed an agreement on 15th June 1978. The respondent denied the execution of the agreement and contended that the document was forged. The trial court dismissed the suit, holding that the plaintiffs failed to prove the execution of the agreement as required under Section 68 of the Evidence Act, 1872, since no attesting witness was examined. The first appellate court confirmed the findings. In the second appeal, the High Court examined whether any substantial question of law arose. The court noted that the findings of fact by the courts below were concurrent and based on proper appreciation of evidence. The plaintiffs did not examine any attesting witness or a handwriting expert to prove the signatures on the agreement. The court held that no interference was warranted in the second appeal as the appellant failed to show any perversity or error of law. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC, 1908 - Interference with concurrent findings of fact - The High Court held that in a second appeal, the court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The appellant failed to demonstrate any perversity or substantial question of law. (Paras 1-10) B) Evidence Act - Proof of Execution of Document - Attesting Witness - Section 68 Evidence Act, 1872 - Where a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution. The plaintiff did not examine any attesting witness or a handwriting expert, and thus failed to prove the agreement to sell. (Paras 5-8) C) Specific Relief Act - Specific Performance of Contract - Burden of Proof - Sections 16(c) and 20 Specific Relief Act, 1963 - The plaintiff must prove readiness and willingness to perform his part of the contract. The courts below found that the plaintiff failed to prove the execution of the agreement and his readiness and willingness. (Paras 5-9)
Issue of Consideration
Whether the concurrent findings of fact by the courts below regarding the non-execution of the agreement to sell can be interfered with in a second appeal under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the second appeal with no order as to costs, upholding the concurrent findings of the courts below.
Law Points
- Specific performance
- burden of proof
- attesting witness
- Section 68 Evidence Act
- 1872
- concurrent findings of fact
- second appeal
- substantial question of law
