- (1.) THESE are two connected appeals against the same judgment of the Dist. Judge of Chittorgarh. Appeal No. 72 is by Kalu Ram and his sons Nathu Lal & Mangi Lal, and raises the entire matter in this Court. Appeal No. 72 is by Magan Lal, and is only with respect to costs. We shall first deal with Appeal No. 72. The appellants of this appeal, namely, Kalu Ram, Nathu Lal and Mangi Lal, were plaintiffs in the trial court. They filed a suit for specific performance and injunction against Gordhan and Magan Lal. The suit related to a house which was the property of Gordhan. The case of the plaintiffs was that Gordhan had agreed to sell this house to them for Rs. 1,999/- and Rs. 650/- out of this amount had been paid at his instance to one Kan Mal already. Later, however, Gordhan changed his mind, and thereupon it was agreed between Gordhan and the plaintiffs that the house would be mortgaged to the plaintiffs for Rs. 1,450/ -. Gordhan also agreed that if he ever sold the house, he would sell it in the first instance to the plaintiffs at a price to be assessed by five panchas. After this agreement, a mortgage deed was executed on the 19th of June, 1946. On the same day a separate agreement, Ex. P. 3, was also executed incorporating the term as to the sale in favour of the plaintiffs. It so happened that a few months later, namely, in November, 1946, somebody made a report of lavarsi in connection with this house. Thereupon Gordhan asked the plaintiffs to take the sale of the house, and fight out the lavarsi proceedings. On this, another agreement was made between Gordhan and the plaintiffs on the 28th of January, 1947. By this agreement it was settled that the plaintiffs would purchase the house for Rs. 2,521/- minus the mortgage money and such sum as the plaintiffs might advance to Gordhan for fighting the lavarsi proceedings after those proceedings had terminated in favour of Gordhan. In the meantime, however, Gordhan had executed a sale deed on the 20th of January, 1947, in favour of Magan Lal for a sum of Rs. 2,499/ -. This sale deed was presented for registration on the 31st of January, 1947, by Magan Lal. On the 1st of February, 1947, the plaintiffs served a notice on Magan Lal, which he got on the 2nd of February, 1947. Thereafter, on the 23rd of February, 1947 the present suit was instituted by the plaintiff. We may add that the sale deed in favour of Magan Lal was registered on the 15th of July, 1947, after Magan Lal had filed a suit in that behalf.
(2.) MAGAN Lal's defence was very simple. He said that the alleged agreement of 19th of June, 1946, which was the sheet-anchor of the plaintiffs' case, was a fictitious document which was brought into existence sometime after the sale deed in his favour had been executed on the 20th of January, 1947, in order to defeat his rights under that deed. He also alleged collusion between Gordhan and the plaintiffs in this matter. Two issues were framed in the trial court, of which the main issue was whether this agreement of the 19th of June, 1946, was genuine or not. The trial court came to the conclusion that the agreement had been executed, but dismissed the suit on the ground that its terms amounted to a clog on the equity of redemption. The plaintiffs went in appeal, and the appellate court upheld the dismissal of the suit, but on a different ground, namely, that the agreement of the 19th of June, 1946, had not been proved to have been executed on the date on which it purported to have been executed. It is clear that once this agreement of 19th of June, 1946, fails, the plaintiffs cannot claim any preference over Magan Lal on the basis of their agreement of 28th of January, 1947, as that was executed eight days after the sale in favour of Magan Lal. A number of points of law have been argued at great length before us. But before we go into these questions, we have to decide the question of fact that has been raised about the agreement of 19th of June, 1946. The argument on behalf of the plaintiff-appellants is that the finding of the lower appellate court is not binding on us because that court, in arriving at the conclusion that the agreement had not been proved to have been executed on the 19th of June, 1946, ignored clear evidence on the record in support of the agreement. There is ample authority for the view that where the first appellate court ignores clear evidence on the record and arrives at findings in spite of that evidence, it is open to the High Court in second appeal to look at that evidence, and come to a finding of fact itself. We must say that the judgment of the lower appellate court on this question of fact is not satisfactory, and even if it may not have completely ignored the evidence that was led, it certainly does not deal with it, and merely decides the question of fact on certain probabilities. We have, therefore, gone into the evidence ourselves with the assistance of learned counsel on both sides and are satisfied that though the judgment of the lower appellate court on this point is not satisfactory the conclusion at which it has arrived is correct. We may briefly give the reasons for this conclusion at which we have also arrived. The main witnesses for the plaintiffs on this point were Gordhan, vendor, Kesari Mal, scribe of the document, Ex. P. 3, Nand Ram, an attesting witness of that document, and Nathu Lal, plaintiff himself. It is the case of the plaintiffs that after the talks about the sale deed fell through on the 19th of June, 1946, they and Gordhan agreed that the house should be mortgaged in favour of the plaintiffs, and that Gordhan should execute an agreement to the effect that if he ever sold the house, he would give first preference to the plaintiffs. We think that when such an agreement had been arrived at between Gordhan and the plaintiffs, the terms of the agreement should also have found place in the mortgage deed itself, and there was no necessity of a separate agreement about the sale. Further, even if, for some reason, it was thought fit to have a separate agreement for the sale, we think that this separate agreement could also have been written simultaneously with the mortgage deed. But the evidence of Nand Ram, attesting witness, is that the mortgage deed was written out at about 10 or 11 A. M. , while the agree-ment. Ex. P. 3, was scribed at about 5 P. M. Normally, if the two deeds had been written out at the same time, one would find that the same witnesses attested both but as there was some space of time between the execution of the two deeds, there are different witnesses is the two deeds. The defen-dent's case is that the second deed was executed months after the first in order to defeat his claim, and we think that the circumstances, which we have pointed out above, go to support the defendant's case. Another circumstance, which was pointed out by learned counsel for the defendant, is the contradiction between Nathu Lal, plaintiff and the other witnesses as to the date on which this document, Ex. P. 3, was executed. The document itself bears the date 19th of June, 1946. The evidence of Gordhan and others also is that it was executed on the same day on which the mortgage deed was executed. But Nathu Lal, plaintiff, when he was questioned, was definite both in his examination-in-chief and cross-examination that the document, Ex. P. 3, was executed after the registration of the mortgage deed. Now the mortgage deed was admittedly presented for registration and registered on the 20th of June, 1946. Under these circumstances, Nathu Lal's evidence would make it appear that this document, Ex. P. 3, was executed on the 20th of June, 1946. It was urged by learned counsel for the plaintiff that this is a case of failure of memory. We can quite see that in a case of this kind where a document is alleged to have been fabricated and it is found that there is contradiction as to the date of execution, the only explanation possible is failure of memory. But taking the other circumstances, which we have pointed out above, and some more, which we will point out just now, we are not prepared to accept that this was due to a failure of memory. We are disposed to the view that this contradiction has appeared because the document was really prepared at a later stage in order to defeat the rights of Magan Lal defendant. In addition to the arguments, which we have already mentioned, we may refer to the reasons given by the learned District Judge in support of the view that this document, Ex. P. 3, is not genuine. In the first place, he points out that this document is on unstamped paper, and could, therefore, have been prepared at any time. In the second place, this document has not been referred to in the agreement of the 28th of January, 1947, though one should have naturally expected some reference to it in that agreement, because that agreement really superseded this document, Ex. P. 3. He has given a third reason, namely, that there is no mention in the agreement of 28th January, 1947, that the price which was settled in that document was arrived at with the help of panchas or otherwise. These reasons, mentioned by the learned District Judge, taken along with the reasons which we have already given leave no doubt in our mind that Ex. P. 3, was certainly not executed on the 19th of June, 1946. It was very easy to bring it into existence after the 20th of January, 1947, because Gordhan had apparently colluded with the plaintiffs. We are, therefore, not prepared to place any reliance on this agreement of 19th of June, 1946. Once this agreement goes, the plaintiffs can have no case against Magan Lal, for the agreement of 28th of January, 1947, was made after the sale deed in favour of Magan Lal had been executed on the 20th of January, 1947. In view of this finding, we do not think it necessary to consider the points of law which have been raised in defence to meet this alleged agreement. The appeal of the plaintiffs, therefore, fails and must be dismissed, and is hereby dismissed with costs. This leaves us with the appeal of Magan Lal. The learned District Judge is silent in his judgment on the question of costs. We see no reason in this case for depriving Magan Lal defendant of his costs. Magan Lal's appeal is, therefore, allowed, and he will get his costs of the first appellate court as well as of this Court. . ;