S. S. BYAS, J. - (1.) THIS is a vendor-defendant's appeal from the judgment and decree of the learned Additional District Judge (1), Alwar dated October 14, 1982, by which the plaintiff's suit for specific performance of a contract of sale in respect of immovable property viz. Khatedar Rights in the agricultural lands was decreed with costs.
(2.) PLAINTIFF Balmukand brought a suit for specific performance of a contract of sale against the defendant in the court of District Judge, Alwar on August 19, 1980. The case set up by him was that the defendant is a Khatedar tenant of the seven fields described in para 1 of the plaint. On July 1,1979, she made an agreement with the plaintiff to sell her Khatedari rights of these fields to him for a sum of Rs. 20,000/- and executed agreement (Ex. 1) on the same day in his favour. The price was paid to her in full by him at that very time and she put him in possession of the fields. As per terms of the agreement, she was to obtain "no dues certificate" from the Co-operative Society and execute the sale deed in his favour as and when he required her to do so and get it registered. After some time in, in the month of Kartik, he called upon her to execute the sale-deed but she did nothing. He then served a notice in writing to her on July 2, 1980 reiterating his demand for the execution of sale-deed and its registration. The attempt proved abortive. He, thereupon, instituted the suit and claimed the following reliefs :- (1) The defendant be directed to execute the sale-deed in his favour and get it registered; and (2) in case, his possession over the fields was not established, the possession over them be delivered to him. The suit was resisted by the defendant on a complete and categorical denial. All the material averments of the plaintiff were traversed and it was pleaded that her deceased-husband was the Khatedar tenant of the fields in dispute. On his death, the tenancy rights devolved on her and her three daughters-Gulkandi, Bhoti and Govindi. She denied that she entered into an agreement with the plaintiffs to sell her Khatedari rights of the fields in dispute to him for a sum of Rs. 20,000/- or executed agreement (Ex. 1) in his favour. It was further stated that her daughter Bhoti relinquishing her rights in these fields in favour of her another daughter Gulkandi. The fields were, thus, in possession of Gulkandi, who was cultivating them. The plaintiff and his son once confined her in a room. If her thumb impression was taken on any paper by the plaintiff while she was in her confinement, it had no legal sanctity. The case came for trial before the learned Additional District Judge, who raised the following issues :- (1) Whether the defendant made an agreement to sell the fields described in para 1 of the plaint to the plaintiff for a sum of Rs. 20000/- on 1. 7. 79 and received the amount of Rs. 20000/- thereunder and whether she executed the agreement and affixed her thumb impression on it and delivered the possession of the fields to the plaintiff ? (2) Whether the three daughters of the deceased Shri Moti (defendant's husband) are his heirs in addition to the defendant and whether Shri Moti gave the fields in dispute to Gulkandi for cultivation and whether she was in their possession, and if so, with what effect on the suit ? Both the parties led oral and documentary evidence. On the conclusion of trial, the learned District Judge answered both the issues in the plaintiff's favour. The suit was consequently decreed in terms prayed for. Aggrieved against the said judgment and decree, the defendant has come up in appeal. I have heard the learned counsel for the parties and gone through the record carefully. In assailing the judgment and decree, the first contention raised by the learned counsel for the defendant is that the whole approach of the court-below was erroneous. It was argued that agreement (Ex. 1) was wrongly taken as executed by the defendant. The defendant is an old and illiterate village woman and as such heavy burden lay over the plaintiff to dispel all the doubts about the execution of Ex. 1. The court below did not properly scrutinise the evidence. The evidence adduced by the plaintiff was not solid and convincing to prove that agreement (Ex. 1) was executed by her. In reply, learned counsel for the plaintiff supported the findings of the learned trial judge and submitted that in addition to the direct evidence, there was an admission of the defendant (made in some litigation with her daughter Gulkandi) to the effect that she had made the agreement to sell the tenancy rights to him. I have taken the respective contentions into consideration. Ex. 1 is the agreement of sale, which has been made the basis of the suit. The plaintiff has examined himself and four witnesses to prove the agreement and execution of Ex. 1. Plaintiff Shri Balmukand (P. W. 1) deposed that the defendant made an agreement to sell her khatedari rights in the fields in dispute to him for a sum of Rs. 20,000/ -. Her daughter Govindi was also present at the time of the agreement. The full amount was paid in the village to her. Next day, agreement Ex. 1 was executed. It was written by P. W. 2 petition writer Shri Biharilal at his house in the presence of P. W. 2 Kalu, P. W. 4 Gulkandi and P. W. 5 Bachusingh. It was read over to the defendant. She affixed her thumb impression on every page of Ex. 1. The above persons also put their attestation on Ex. 1. P. W. 2 Biharilal is the scribe of Ex. 1. He is a petition writer by profession. He deposed that the parties approached him to write an agreement of sale. The defendant had agreed to sell her land to the plaintiff for a sum of Rs. 20,000/ -. She admitted before him that she had already received the amount of Rs. 20,000/- from the plaintiff. On her request, he wrote agreement Ex. 1. The defendant affixed her thumb impressions marked 'x' on every page of Ex. 1. At that time, Shri Kalu (P. W. 3), Govindi (P. W 4) and Bachusingh (P. W. 5) were also present. They put their attestation on Ex. 1. He positively stated that Ex. 1 read-over to the parties. The defendant admitted its correctness. P. W. 3 Kalu stated the same facts. According to him the plainiff paid the amount of Rs. 20,000/- to the defendant in his presence. He further stated that the agreement was written in his presence. The defendant appended her thumb impressions on it. He also attested the agreement by placing his thumb impression on it. P. W. 4 Govindi is the real daughter of the defendant. She deposed that agreement of sale was made in her presence. Her mother agreed to sell the land in dispute to the plaintiff for a sum of Rs. 20,000/ -. The amount of Rs. 20,000/- was paid to her by the plaintiff in her presence. Next day the agreement was written in Tehsil Laxmangarh by the petition-writer. It was written on the request and at the instance of the defendant. The defendant affixed her thumb impressions on the agreement. She also put her thumb impression on it as an attesting witness. P. W. 3 Kalu and P. W. 5 Bachusingh were present at that time and they also put their attestation on the agreement. P. W. 5 Bachusingh is also an attesting witness of Ex. 1. He too deposed the same facts. All these witnesses were cross-examined at length but nothing could be elicited from them, which may make their testimony unworthy of belief or credence. The petition-writer P. W. 1 Biharilal is an independent person. It is difficult to imagine that he would forge a document for no apparent reasons. P. W. 3 Kalu and P. W. 5 Bachusingh are the residents of defendant's village It has not been shown that they bear any grudge or animus against the defendant. P. W. 4 Govindi is the real daughter of the defendants, The testimony of these witnesses has not been shaken or shattered in cross-examination. The learned judge accepted as true what they testified. I find no good and cogent reasons to take a different view.
(3.) THERE is then a clear admission made by the defendant in her written statement Ex. 4. Mst. Gulkandi filed a suit for declaration against her mother (defendant) and sisters Bhoti and Govindi (P. W. 4 ). The certified copy of the plaint is Ex A/2. In this suit, the defendant submitted written statement Ex. 4. In para 3 of the additional pleas of Ex. 4 the defendant made a clear admission that she had already sold her khatedari rights of the fields in dispute to the plaintiff on July 1, 1979 for a sum of Rs. 20,000/- and had executed a document in pursuance thereof on the same day in his favour. It was argued that Ex. 4 should not be read in evidence as its execution has not been proved. Now, Ex. 4 is a certified copy of the written statement. Pleadings are no doubt private documents. As such, the written statement, not being a public document in terms of Section 74 of the Evidence Act, its execution should be proved by the party wishing to read it in evidence. In the instant case, there is sufficient evidence to show that written statement Ex. 4 was filed by the defendant. Defendant Mst. Bhudi (D. W. 1) admitted in cross-examination that her daughter Gulkandi had filed a suit against her and she appeared in the Revenue Court in that suit. D. W. 2 Gulkandi, who is the daughter of the defendant, admitted in her cross-examination that she had filed a suit against her mother and sisters for partition. In that suit, her mother (defendant) filed the written statement. She further admitted that in that written statement, her mother (defendant) admitted to have sold the fields in dispute to the plaintiff. Ex. A/2 and Ex. A/3 are the certified copies of the plaint and judgment respectively. Taking Ex. A/2 and Ex. A/3 together, it can be safely said that written statement Ex. 4 was filed by the defendant. Admissions are substantive evidence by themselves in view of Sections 17 and 18 of the Evidence Act, though they are not conclusive proof of the matters admitted. The rigor of an admission can be avoided by its maker by showing that it was falsely made or was made with some ulterior motive. But so long it has not been avoided, it is binding on its maker. In the instant case, the defendant simply denied to have filed written statement Ex. 4. She gave no explanation to avoid her admission made therein. A bare denial is not sufficient to avoid an admission. ;