Sibghat Ullah Khan, J.@mdashHeard Learned Counsel for the parties.
2. This is defendants'' second appeal arising out of a suit (O.S. No. 20 of 1969) for specific performance of an agreement for sale dated 14.02.1966 alleged to have been executed by defendant appellant No. 1, Smt. Jamuni in favour of plaintiffs respondents. The suit was dismissed by Munsif, Basti on 29.01.1972 with special cost of Rs. 500/- to be paid by the plaintiffs to the defendant No. 2 in addition to the normal cost of the suit.
3. It was pleaded in the plaint that through the alleged agreement dated 14.2.1966, Smt. Jamuni agreed to sell all her property consisting of bhoomidhari and sirdari agricultural land as well as house for Rs. 3000/- in favour of plaintiffs out of which Rs. 1500/- was paid as earnest money. It was further pleaded that talks of agreement had started six months before. Defendant appellant No. 1 gifted her entire property through registered gift deed to her daughter defendant appellant No. 2 on 13.09.1968. Defendant No. 1, Smt. Jamuni died on 21.01.1969 just after filing of the suit and was substituted by the defendant No. 2 her daughter.
4. The case of the defendant was that the alleged agreement was rank forgery. Plaintiffs are cousin brothers of late husband of Jamuni and father of defendant No. 2, Smt. Kailashwati and according to the written statement they wanted to usurp the property. Smt. Jamuni filed application for acquiring bhumidhari rights after depositing requisite amount, objections were filed by the plaintiffs against the said application which were rejected.
5. The trial court specifically mentioned that against the application which Smt. Jamuni had filed for acquiring bhoomidhari rights the plaintiffs filed objections stating therein that the land was given to her only by way of guzara (maintenance) and that she had no right to acquire bhoomidhari right therein. The proceedings for acquisition of bhoomidhari right took place in 1968. In objections plaintiffs nowhere stated that some agreement for sale had been executed in their favour by Smt. Jamuni. Plaintiff Bhagwati in his oral statement could not give any explanation that why he filed objections questioning the very right of Smt. Jamuni and why he did not say anything about the agreement in the said proceedings. He pleaded ignorance about the said proceedings. Trial court also held that alleged thumb mark of Smt. Jamuni on the agreement was not got examined by any expert. Trial court mentioned that even from the naked eye the undisputed thumb impression of Smt. Jamuni and thumb impression on the alleged agreement for sale were quite different and "it was conceded even by the plaintiffs'' counsel that the two marks were not of one and the same thumb impression."
6. The trial court further held that the stamp paper on which agreement was written was purchased on 12.08.1965. In order to cover the gap, it was stated by the plaintiffs in the plaint that talks of agreement for sale had started in August, 1965. However, plaintiff Bhagwati in his oral statement stated that talks of agreement took place about 15 days before the execution of the agreement. From this wild discrepancy the trial court held that plaintiff was a liar.
7. The trial court mentioned some further circumstances to hold that no agreement as alleged was executed. Against the judgment and decree passed by the trial court, plaintiffs filed Civil Appeal No. 117 of 1972, which was allowed on 24.02.21978 by III A.D.J., Basti and suit for specific performance of agreement for sale was decreed. This second appeal is directed against judgment and decree passed by the lower appellate court. This second appeal was admitted on 05.12.1978 on the following substantial questions of law:
(i) Whether there was compliance of Section 16-C of the Specific Relief Act, if not its effect?
(ii) Whether the provisions of Section 41 of Transfer of Property Act were attracted in the present case?
In my opinion two more substantial questions of law are involved in this second appeal requiring consideration, which are as follows:
(iii) Whether the findings of the lower appellate court that agreement was in fact executed by Smt. Jamuni are erroneous in law?
(iv) Whether the relief of specific performance is barred by Section 16(b) of Specific Relief Act?
8. I propose to decide these questions first. The trial court categorically held that thumb impression of Smt. Jamuni on the agreement did not tally with her thumb impression and even the plaintiffs'' counsel conceded the said fact. The lower appellate court did not touch this aspect of the matter.
9. Regarding purchase of stamp paper six months before execution of the agreement the lower appellate court stated that vendor cheated plaintiffs. This finding is without any basis. Neither any such case was taken by the plaintiffs nor any plausible reason was given by plaintiffs as to why stamp vendor noted wrong date on the stamp paper. On the back of the first stamp paper of Rs. 3.5 on which agreement for sale was written, stamp vendor has written that the stamp was sold to Smt. Jamuni and not to any of the plaintiffs as stated by them. Lower appellate court completely ignored the vital circumstance which had been taken into consideration by the trial court to the effect that in the plaint it was stated that talks of compromise/ agreement started six months before the date of agreement while one of the plaintiffs in his oral statement stated that talks started only 15 days before of the execution of the agreement.
10. Lower appellate court also illegally brushed aside the most important fact and circumstance to the effect that against application of Smt. Jamuni for grant of bhoomidhari right plaintiffs had filed objections claiming their own right in the land in dispute and had not said anything regarding agreement. Similar objections were taken by them at the stage of mutation when name of defendant No. 2 daughter of Smt. Jamuni was being mutated in the revenue records after the gift deed by Smt. Jamuni in her favour.
11. If a court arrives at a finding by ignoring relevant piece of evidence and taking into consideration irrelevant aspect of the matter, judgment is vitiated in law and liable to be set aside in second appeal vide
12. The suit was barred by Section 16(b) of Specific Relief Act, which is quoted below:
16. Personal bars to relief.--Specific performance of a contract cannot be enforced in favour of a person-
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or.
13. The plaintiffs acted in fraud of the agreement for sale and wilfully acted at variance with that and in subversion of the relation intended to be established by the agreement/ contract. By filing objections in proceedings for grant of bhumidhari sanad to Smt. Jamuni they denied title of Smt. Jamuni.
14. Accordingly, third and fourth substantial questions of law are decided against the respondents and in favour of appellant. In view of this it is not necessary to decide the first two substantial questions of law. Second appeal is therefore allowed with special cost of Rs. 10,000/-. Judgment and decree passed by the lower appellate court is set aside. Judgment and decree passed by the trial court dismissing the suit is restored.
