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TMI Blog2011 (3) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... e-27 to him for a consideration of Rs. 40,000/- by receiving an advance of Rs. 5,000/-. (B) The said agreement was duly registered and according to the terms incorporated therein, the sale deed was to be executed on or before 30-12-1980. The respondent failed to take necessary steps to act according to the agreement. Thus, the appellant/plaintiff issued notice to the respondent on 5-3-1980 through his lawyer. (C) The appellant/plaintiff allegedly paid the balance amount on 15-5-1980. As the time limit for the execution of the sale deed had expired, and the sale deed was not executed, the appellant/plaintiff filed the suit for specific performance. (D) The respondent denied the execution of any power of attorney in favour of his brother with regard to alienation of the property. In fact the power of attorney had been given only for management of the property and not creating any right to transfer the same. (E) In view of the pleadings, the Trial Court framed issues and after conclusion of the trial decreed the suit vide judgment and decree dated 3-11-1998. 3. Being aggrieved, the respondent preferred Regular First Appeal No. 265 of 1999 before the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refunded to the purchaser together with the like amount of Rs. 5,000/- as liquidated damage for breach of contract. Thus, at the most, the appellant was entitled to receive a sum of Rs. 10,000/- but the question of decreeing the suit could not arise. The appellant had been a tenant. He never paid any consideration. Earlier there has been a prior sale of 1/3rd share in the same property (share of the brother of the respondent) in favour of D. Narendra and the appellant had filed the suit against him also claiming that the said part of the property could have been sold to him. The alleged payment of Rs. 65,500/- or Rs. 40,000/- as a sale consideration is nothing but mis-representation by showing forged receipts prepared by the appellant in collusion with the son of the alleged power of attorney holder at the time of litigation with D. Narendra. The appeal lacks merit and is liable to be dismissed. 6. We have considered the rival submissions made by learned counsel for the parties and perused the record. 7. Admittedly, there had been litigation between the appellant and other co-sharers when 1/3rd share of the said property was sold in favour of D. Narendra by the brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide : The Roman Catholic Mission & Anr. v. The State of Madras & Anr, AIR 1966 SC 1457; State of Rajasthan & Ors. v. Khemraj & Ors., AIR 2000 SC 1759; Life Insurance Corporation of India & Anr. v. Ram Pal Singh Bisen, (2010) 4 SCC 491; and M. Chandra v. M. Thangamuthu & Anr., (2010) 9 SCC 712). 11. The Trial Court decreed the suit observing that as the parties had deposed that the original power of attorney was not in their possession, question of laying any further factual foundation could not arise. Further, the Trial Court took note of the fact that the respondent herein has specifically denied execution of power of attorney authorising his brother R. Viswanathan to alienate the suit property, but brushed aside the same observing that it was not necessary for the appellant/plaintiff to call upon the defendant to produce the original power of attorney on the ground that the photocopy of the power of attorney was shown to the respondent herein in his cross-examination and he had admitted his signature. Thus, it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o examine whether documents produced in the Court or contents thereof have any probative value. 15. The Trial Court rejected the contention of the respondent that the appellant/plaintiff had paid more than what had been agreed in the agreement to sell, and hence changed the terms of agreement unilaterally, observing that in such a fact-situation it cannot be said that the terms of the agreement had been unilaterally altered by the appellant/plaintiff. Such a remark/observation could not have been made without any explanation furnished by the appellant, as under what circumstances the appellant-purchaser, without being asked by the respondent-seller, to enhance the consideration amount has paid more and it cannot be held to be natural human conduct in public and private business. Such conduct of the appellant remains most improbable. 16. The High Court while dealing with the First Appeal has framed only the following two issues : "(a) Whether the findings and reasons recorded on issue Nos. 1 and 2 and Addl. Issue Nos. 1 & 2 by the Trial Court in holding that defendants have not proved that they have not executed agreement of sale in favour of plaintiff and the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide : Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146; Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors., AIR 2007 S.C. 2380). 19. In B.V. Nagesh & Anr. v. H.V. Sreenivasa Murthy, JT (2010) 10 SCC 551, while dealing with the issue, this Court held as under : "The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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