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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3091 OF 2023
Savitri Shekuram Jadhav ]
Age - 64 years, Occu. - Household, ]
R/o. Village Dahivadi, Tal. Tasgaon, ]
District – Sangli. ]… Petitioner
JUDGMENT
1. Subhash Namdev Shinde, ] Age – 54 years, Occu. - Agriculture, ] R/o. Village Lengare, ] Tal. Khanapur, Dist. Sangli ] ]
2. Dilip Sadashiv Shinde ] Age – 57 years, Occu. - Agriculture ] ]
3. Sitaram Sadashiv Shinde ] Age - 49 years, Occu. - Agriculture ] ]
4. Yesabai Sadashiv Shinde ] Age – 59 years, Occu. - Household and Agril. ] ]
5. Bhagirathi Prakash Yadav ] Age – 59 years, Occu. - Household and Agril. ] No[2] to 5 R/o. Village Lingare, ] Tal. Khanapur Dist. Sangli. ]… Respondents ***** Mr. Prajakt M. Arjunwadkar a/w. Mr. Dhananjay A. Utture:- Advocates for Petitioner. Mr. Amol Suryawanshi a/w. Mr. Ganesh Desai:- Advocates for Respondent No.1. ***** CORAM: S. M. MODAK, J. DATE: 17th DECEMBER 2024 ORAL ORDER:-
1. Heard learned Advocate Mr.Arjunwadkar for petitioner/ defendant No.5 and learned Advocate Mr.Suryawanshi for respondent No.1/ plaintiff.
2. Rule. Rule is made returnable forthwith. By consent of the parties, petition is taken up for final hearing.
3. The only issue arisen in this petition is whether “the present petitioner is having right to insist for examination of her alleged thump impression on the agreement for sale which is registered on 19th April 2001” (page No.18). She has expressed her desire vide application dated 11th November 2019 (page No.54) which was rejected by the trial Court as per the order dated 13th November 2024. It is by the Court of Judicial Magistrate First Class, Vita. The said order is challenged by the defendant No.5 by way of this Petition. Background facts
4. There are two Suits filed by the parties against each other. The details are as follows:-
(i) Regular Civil Suit No.329 of 2012 filed by the present petitioner against in all 6 defendants. Present respondent No.1 is defendant No.1 therein. Following are the reliefs sought:- (a) It be declared that the agreement for sale dated 19th April 2001 executed by the defendants No.2 to 6 (as vendors) in favour of defendant No.1 as a purchaser is not binding on the plaintiff. (b) There are ancillary reliefs. The material averments find place in paragraph No.4 of the plaint. The plaintiff - Savitri has averred that she has never executed an agreement for sale dated 19th April 2001.
(ii) There is Regular Civil Suit No.346 of 2012 filed by one
Subhash/ respondent No.1 against in all six defendants. The present petitioner - Savitri is defendant No.5. The plaintiff has sought for specific performance of registered agreement for sale dated 19th April 2001 and for other ancillary reliefs.
5. The trial Court has framed issues in both the Suits and the respective plaintiffs have started with their evidence also. So in a Suit filed by plaintiff - Savitri she is seeking declaration and whereas in a Suit filed by the plaintiff – Subhash, he is seeking specific performance. Both of them wants to refer the agreement for sale from a different perspective. The trial Court rejected the application for following reasons:- (a) The disputed agreement for sale was produced on record on dated 11th December 2012. The defendant No.5 was aware of existence of that instrument. (b) The plaintiff – Subhash has filed his evidence affidavit on 18th January 2016 and he was also cross-examined by defendant No.5 – Savitri on 15th October 2019.
(c) The defendant No.5 was having ample opportunities from the time of filing of Written Statement till filing of evidence affidavit by the plaintiff. However, she has not raised any objection for long time and only after cross-examination she has filed present application.
(d) The defendant No.5 can prove her pleadings by other options.
(e) Once the terms of agreement are reduced into writing, no other evidence can be adduced to disprove contents of the instrument. The only exception is provided in proviso 1 to 5 to Section 92 of the Indian Evidence Act, 1872 (Evidence Act). (f) The burden lies on the plaintiff to prove that the defendants have executed an agreement for sale. Submissions
6. According to learned Advocate Mr. Arjunwadkar, the evidence of an expert is relevant as per Section 45 of the Evidence Act. He tried to submit that the provisions of proviso to Section 92 of the Evidence Act are not relevant. Even he tried to contend that burden to prove nonexecution by the defendant No.5 lies on the plaintiff – Subhash. Whereas learned advocate for respondent No.1 supported the order and submitted that the agreement for sale is a registered document. It has got more evidentiary value than an unregistered agreement for sale. According to Mr. Arjunwadkar, agreement for sale is not compulsorily registrable as per the Indian Registration Act 1908 (Registration Act).
7. This Court feels the reasoning given by the trial Court are erroneous. This Court is inclined to set aside the said order for following reasons:-
(i) The trial Court has overlooked the fact of filing of the Suit by the petitioner - Savitri challenging the agreement for sale and it is pending. She has denied execution of said agreement.
(ii) At two places she has clarified her stand:-
(a) by making necessary averments in her plaint (b) by making necessary averments in the Written Statement filed to the Suit filed by Subhash.
(iii) As per procedure followed for trial of the Suit, the stage of recording of evidence comes at a later stage. First the pleadings are to be completed.
(iv) The petitioner – Savitri is aware about the burden which lies on her shoulder. She is not only the defendant but she is plaintiff also. The copies of the issues framed in both the Suits are not made available. But if we go by law of pleadings and the provisions of Evidence Act, the burden generally lies on a party who pleads a particular fact. In a Suit filed by the plaintiff – Savitri she has averred that she has not executed the agreement for sale. Naturally the burden will lie on her. Merely because the plaintiff – Subhash has also sought for specific performance of that agreement, it does not mean that the plaintiff – Savitri is relived from proving said fact because by asking the plaintiff – Subhash to discharge the burden through execution, she is not going to be benefited. She has to stand on her own foots.
(v) Both the Suits are at the stage of recording of evidence. No doubt the application for examination was filed in a Suit in which she is a defendant. In fact in her Suit there is burden on her to prove non-execution.
(vi) It is true as per the Evidence Act when there is a documentary evidence the original has to be produced. It is also principle of Evidence Act if a party wants to believe the Court about the document, there can be no evidence other than the document itself. It is also principle of Evidence Act that party cannot adduce oral evidence to prove contrary to contents of document. There are only certain exceptions. One of the exception is “when the party is disputing the execution of that document”. So that is how the proviso (1) to Section 92 of Evidence Act comes into picture. The fact may be proved which will invalidate the document. In this case there is a challenge to execution of the document.
8. For all above reasons the trial Court has committed an error in rejecting the application. It has to be allowed. Hence the following order is passed:- O R D E R
(i) The order dated 30th November 2021 passed by the
(ii) The application filed by the defendant No.5 – Savitri
(iii) The defendant No.5 - Savitri Jadhav is at liberty to suggest the name of the expert and the trial Court, after hearing both the sides, fix the name of expert. The charges will be born by the defendant No.5 – Savitri Jadhav.
(iv) The petitioner/ defendant No.5 is at liberty to produce documents having her admitted thumb impressions for the purpose of comparison. The trial Court to pass necessary directions.
(v) The appointed expert is at liberty to go through the
(vi) The trial Court to pass necessary directions to the expert about examination.
(vii) If there is an issue about the procedure and the findings by the expert, both the parties are at liberty to agitate their grievances before the trial Court and not before this Court.
9. The Rule is made absolute in the above terms.
10. Writ Petition is allowed. [S. M. MODAK, J.] VISHNU KAMBLE