Tarun Kumar Gupta, J. - (1.) PLAINTIFF is the appellant against this judgment of reversal. PLAINTIFF filed a suit being Title Suit No.9 of 1984 in the Court of learned Civil Judge (Senior Division), Second Court, Bankura for specific performance of the contract. According to plaintiff she sold out the suit property at a consideration of Rs.9,999/- to the defendant on 30 th January, 1981 when defendant executed an unregistered agreement stating that if said principal amount would be paid to him 2 within the month of Magh, 1399 B. S. by the present plaintiff then he would execute a deed of reconveyance in favour of the plaintiff and that on failure on his part plaintiff would be at liberty to file a case for specific performance of contract. It is further case that plaintiff collecting the consideration money approached defendant in the month of Poush, 1390 B. S. to execute the Kobala in favour of plaintiff in terms of said agreement dated 30 th January, 1981 but without any result. It is further case that plaintiff sent an advocate?s notice dated 19 th December, 1983 to the defendant asking him to be present at Gangajal Ghati registration office on 18 th January, 1984 for execution of said Kobala in favour of the plaintiff in terms of said agreement dated 30 th January, 1981 but defendant did not turn up in spite of receipt of said notice on 21 st of December, 1983. Accordingly, plaintiff filed said suit for specific performance of contract alleging that she was all along ready and was still ready and willing to perform her part of contract namely payment of consideration money.
(2.) THE defendant filed a written statement denying material allegations of the plaint and contending inter alia that though defendant purchased the suit property from plaintiff through a Kobala dated 30 th January, 1981 on payment of market price of Rs.9,999/- but he did not execute any agreement either on that date or any subsequent date agreeing reconveyance of the suit property to the plaintiff. It was further case that plaintiff?s son Swapan Kumar Mahanta had developed a bitter 3 relation with the defendant during a joint business of running a bus and that he managed to procure an alleged agreement with forged signature of the defendant. It is further case that defendant was running a business in the suit property and later on he inducted his brother Felaram as a tenant in the suit premises for running a business and that suit was liable to be dismissed with cost. On the basis of the pleadings of the parties several issues were framed by the learned Trial Court. Both parties also adduced evidence both oral and documentary. Learned Trial Court was of the opinion that the agreement of reconveyance was not a forged one as alleged by the defendant and that it was enforceable in law and accordingly passed a decree of specific performance of contract in favour of the plaintiff.
(3.) IN the appeal being Title Appeal No.95 of 2002 preferred by the defendant, learned Additional District Judge, Second Court, Bankura, however, allowed the appeal by setting aside the judgment and decree of Trial Court. At the time of hearing of the Second Appeal, filed at the instance of the plaintiff, the following substantial question of law was formulated upon which learned counsels of the parties argued. 4 (1) Whether learned Lower Appellate Court substantially erred in law in coming to the conclusion that the agreement dated 30 th of January, 1981 was not at all legal agreement and that it was procured and forged one though the evidence on record was to the contrary. Mr. Mahendra Prasad Gupta, learned counsel for the appellant, submits that learned Lower Appellate Court set aside the judgment and decree of learned Trial Court without considering material evidence on record. According to him, both Kobala and agreement of reconveyance were executed on 30 th January, 1981 and that most of the witnesses of Kobala were also witnesses of the agreement of reconveyance. He further submits that though those witnesses gave specific evidence in Court about execution of said agreement of reconveyance dated 30 th January, 1981 by the defendant in their presence and their evidence remained unshaken during cross-examination, but learned Lower Appellate Court did not even discuss their evidence. According to him, learned Lower Appellate Court ignored their specific evidence just by observing that they were relations and known persons of the plaintiff. He further submits that though the disputed agreement of reconveyance was forwarded to the hand writing expert for opinion on comparing with admitted signatures of the defendant, and the hand writing expert gave a specific report stating 5 that signatures appearing on the deed of reconveyance were the signatures of the person making those admitted signatures (defendant), but learned Lower Appellate Court did not even discuss as to why he discarded said report of hand writing expert who was admittedly an independent witness. In this connection he has referred case laws reported in (2009) 13 SCC page 229 (L. N. Aswathama and another versus P. Prakash)and (2011) 4 SCC page 240 (H. Siddiqui versus A. Ramalingam to impress upon this Court that learned First Appellate Court should not reverse the wellreasoned findings of learned Trial Court on the basis of conjectures and surmises, and / or without analyzing the relevant evidence in entirety. Learned counsel for the appellant has further submitted that when defendant took the specific plea that the signatures appearing on the agreement of reconveyance were forged ones or that fraud was practised then he should have proved the same. According to him, even no objection was raised when said agreement of reconveyance was proved by plaintiff?s son (P.W.1) and admitted into evidence (Ext.1). According to him, at the later stage there was no scope of raising objection against said exhibited document (Ext.1). In support of his contention he referred a case law reported in 2009 (10) SCC page 239 (P.C. Thomas vs. P. M. Ismail and others). According to him, learned Lower Appellate Court gave unnecessary stress on the fact of non-examination of plaintiff though explanation was given, on some 6 minor change in the wordings of the schedules of the kobala and agreement of reconveyance, and made out a third case that plaintiff?s son Swapan Kumar Mahanta with his men manufactured said deed of reconveyance keeping the plaintiff (his mother) in dark and that case was also filed by him using the name of the plaintiff. Accordingly, he prays for setting aside the impugned judgment of learned Lower Appellate Court and restoring the judgment and decree of learned Trial Court. Mr. Jiban Ratan Chatterjee, learned senior counsel for the defendant, on the other hand, submits that though it was alleged that both Kobala (Ext.A) and agreement of reconveyance (Ext.1) were executed on the same date i.e., 30 th January, 1981 but deed writers were different and that schedule of the two deeds were also not exactly worded in same language and that the witnesses of the deeds were relations or known persons of plaintiff and that all those things justifiably raised great suspicion in the mind of learned Lower Appellate Court. He further submits that when the suit property was sold out to the defendant in 1981 with the market price then it is unthinkable that a prudent man will execute an agreement of reconveyance for selling back said property at the same price if he was approached within about 10/11 years particularly when he purchased said property for running his business. He further submits that admittedly plaintiff was the best witness but she was not examined and her son against whom there was specific allegation by the defendant in 7 his written statement was examined and accordingly learned Lower Appellate Court rightly drew an adverse inference for holding back the best witness namely the plaintiff.;