B.PRASAD, J. - (1.) This Special Appeal has been filed against the decision of the learned single Judge in Civil First Appeal No. 60/73 decided on 5th March, 1992. The proceedings were initiated on filing of Civil Original Suit No. 57/1965 in the Court of Additional District Judge. Udaipur. The suit was for specific performance of contract entered in between the parties. After trial, the trial Court was of the opinion that plaintiff has not been able to make out a case for ordering specific performance of contract. The trial Court found that the document Ex. 2 dated 7-12-62 was a false and forged document. It was concluded that Rs. 15.000/- received by the defendant was an independent loan transaction. It was repaid with interest to the plaintiff on 21-5-65 by holding the receipt Ex. A/2 to be genuine. The trial Court also concluded that there was no transferable right vested with the defendant on the day when agreement was entered in between the parties. Since, there was no transferable right vested in the defendant, the suit for specific performance of the contract would not lie and in view of the aforesaid finding of the trial Court, the trial Court dismissed the suit for specific performance. The trial Court also found that Rs. 15000/- were repaid, therefore, suit for recovery of money on the basis of promissory note was also dismissed. However, the suit was decreed for Rs. 1000/-, the amount which was paid by the plaintiff to the defendant at the time of execution of the agreement Ex. 1. Apart from the relief of re-payment of Rs. 1000/-, rest of the suit was dismissed.
(2.) Aggrieved by the decision of the trial Court, a first appeal was filed in this Court. The learned single Judge while deciding the appeal noticed that most important document which was important to adjudicate the controversy was Ex. 2, the agreement dated 7-12-62 and receipt Ex. A/2, dated 21-5-65 but they were not available on record. The learned single Judge also noticed that opinion of the handwriting expert Shri C. S. Servate along with relevant photographs on which he has based his opinion was not available on record. The learned single Judge observed that on the basis of the pleadings of the parties, it is apparent that there was no dispute on the fact that on 30-11 -62, an agreement was executed in between the parties. By this agreement, the defendant agreed to sell Plot No, 8 situated at Suraj pole, Delhi Gate Scheme, Udaipur, The sale consideration was fixed as Rs. 34.000/- out of which Rs. 1000/- was paid by the plaintiff to the defendant on that day. It has been noticed that on 7-12-62, a sum of Rs.15,000/- was paid by the plaintiff to the defendant and a promissory note Ex. 3 was executed by the defendant. In this connection, notices were sent and their receipts Ex 5 and Ex. 6 are also not disputed by the defendant. The defendant in reply to the notice Ex. 6, admitted the document dated 8-5-63. The defendant has also not disputed that Ex. A/7 the allotment letter for Plot No. 8 was issued in favour of the defendant. This document was shown to the plaintiff when document E. 1 was executed in between the parties. Above facts have been noticed by the learned single Judge in his judgment, as admitted facts.
(3.) Apart from the abovementioned facts, it has been noticed by the learned single Judge that there is a serious dispute between the parties qua certain points. They relate to the execution of Ex. D/2. It is-also disputed whether advance of Rs. 15.000/- was an independent transaction of loan or an advance as consideration of agreement to sale of the plot in question and the said agreement was kept alive. As claimed by the defendant, Rs. 15.000/- was re-paid on 21- 5-65 for which document Ex. A/2 was executed. In this connection, it has been disputed that if Rs. 15,000/- was not returned with interest on 21-5-65, then whether the plaintiff would be entitled to recover this amount. Learned single Judge proceeded on the basis of the admitted and disputed facts and observed that main challenge of the appellant is on the findings of Issue Nos. 7(a) and 7(b). Learned single Judge was of the opinion that on the basis of the record, it was not proved that sum of Rs. 15,000/- was re-paid. Learned single Judge also found that the opinion of the -handwriting expert of the defendant is not conclusive. Finally, the learned single Judge came to the conclusion that two -facets of evidence suggested by the defendant are highly contrary to the normal course of human conduct and held that it is difficult to believe that the payment of money was made by the defendant to the plaintiff without asking for the promissory note which is alleged to have been executed in consideration thereof. The promissory note having remained with the plaintiff the payment as alleged by the defendant was not found proved by the learned trial Court. The learned single Judge was also of the opinion that the agreement sub-aisted in between the parties is a valid agreement and reversed the finding on Issue Nos. 7(a) and 7(b).;