9911796707
TMI Blog2010 (10) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration of Rs.10,000/- only and delivered the possession to him. In pursuance of the said sale deed dated 24th April, 1986, the respondent is in possession of the suit land. The appellant subsequently served a legal notice upon the respondent in the year 1991-1992 demanding the reconveyance of the suit property on the ground that registered sale deed executed in favour of respondent dated 24th April, 1986 was a conditional sale deed and appellant had a right to repurchase the sale land for the same consideration of Rs.10,000/- within a period of ten years from the date of execution of the sale deed. 2 3. The respondent did not make any response to the said legal notice, thus, the appellant filed Original Suit No. 122 of 1992 before the court of Munsiff and JMFC Court, Mulbagal, seeking the relief of specific performance. The said Suit was contested by the respondent contending that there was an absolute sale deed in his favour and it was not a conditional sale deed, the term of reconveyance had been fraudulently inserted by the appellant after the execution of the document. Manipulation had been done at several places in the said sale deed after the execution and the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for reconveyance was without the consent and knowledge of the respondent; therefore, he cannot be bound by the said terms. In case of contradictions between the oral evidence of the witnesses of both the sides, the First Appellate Court should not have re- appreciated the entire evidence and thus, there was no occasion for the First Appellate Court to reverse the findings of fact recorded by the trial court. The judgment and order of the High Court does not require any interference, the appeal lacks merit and, accordingly, is liable to be dismissed. 7. We have considered the rival submissions made by learned counsel for the parties and perused the record. Undoubtedly, the High Court can interfere with the findings of fact even in the Second Appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the re- appreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances. (Vide Rajappa Hanamant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow many years the suit land has to be repurchased and the word Avadhi was written in the margin after completion of the document. The last part i.e. Ex. D-2 was added after the execution of the sale deed i.e. Ex. P-4, thus, it was evident that the appellant and his scribe inserted the word Avadhi in Ex.P-4 and also inserted the portion Ex.D-2 and it is so evident even to the naked eyes. In view of the aforesaid findings, the suit was dismissed. The First Appellate Court had unnecessarily laboured to find fault with the trial court's judgment and without realising that there was contradiction in the oral testimony of two marginal witnesses, re-appreciated the entire evidence and reached the contrary conclusion. The High Court realising that the findings of facts recorded by the First Appellate Court were perverse, proceeded with appreciation of evidence and came to the conclusion that the trial court was right in holding that the word Avadhi had been inserted at three places in the margin and last part of the sale deed Ex.D-2 in Ex.P-4 had been added subsequent to the execution of the sale deed. The findings so recorded by the High Court are based on a proper appreciation of evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unusual manner. The entire sale deed has been scribed in double space while the part Ex.D-2 is in single space. It was necessary to do so as the parties had already signed the document. Had it been written in ordinary course, it could have gone below the signatures of the parties in the sale deed. Therefore, it is crystal clear that such insertion had been made to convert the absolute sale deed into a conditional sale deed. Thus, we are of the view that the trial court and the High Court have rightly believed the testimony of the respondent that there was no mention of Ex.D-1 and D-2 in Ex.P-4 and the appellant was not entitled for reconveyance of the suit property. The manner in which interlineations have been made in the document itself reveal that addition was made subsequent to the execution of the document otherwise there was enough space to insert such a clause in the same manner in which the entire sale had been scribed. This particular clause had to be squeezed in a small space and to adjust the same before the signature already made by the appellant. The First Appellate Court committed grave error in not properly appreciating the evidence of D.R. Rathna Murthy (PW.1) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a revenue entry and does not refer to the title of the land. Had it been the case of conditional sale deed enabling the appellant to repurchase the land any time within ten years, the respondent could not have spent huge amount of his life savings for improving the land, nor would he have dug a Well in the suit land spending twenty thousand of rupees. The aforesaid circumstances make it clear that the respondent had never agreed for reconveyance. 15. The interlineations had been made at four places in the sale deed. Word Avadhi had been mentioned at three places in the margin of the sale deed. The appellant did not attest the said word by putting his signatures at the time of registration. Attestation testifies/certifies the genuineness of the document. Attestation and execution are different acts, one following the other. Execution includes delivery and signing of the document in the presence of the witnesses and also the whole series of acts or formalities which are necessary to render the document valid. Attestation of sale deed is imperative. In the instant case, we find that the animus to attestation remain totally absent. It is settled legal proposition that the document ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
