SINGHAL, J. - (1.) BY this special appeal the judgment and decree passed by the learned Single Judge dated 30. 11. 1990 has been challenged.
(2.) THE facts of the case are that the respondents (plaintiff) filed a suit in the court of Additional District Judge, Kishangarhbas on 5. 2. 1987 for specific performance of contract which was dismissed on 23. 1. 1990. THE following issues were fra-med which was decided in favour of defendants, now appellants before us. 1- D;k izfroknh us viuh vkjkth [kljk ua- 263 jDok 8 ch?kk 4 fclok Dk vk/kk fgllk fnukaD 25-9-1976 Dks oknhx. k Ds crksj jgu fD;k vksj eksDs ij tkDj oknhx. k Dk Djkj fn;ka 2- D;k fnukaD 22-1-1983 Ds izfroknh us 2 ch?kk tehu 12]000@& :i;s esa oknhx. k Dks cspDj eqgk;nk c;ukek rlnhD Djkus Dk DjDs iwjh jDe izkir Dj bDjkj ukek o jlhn fy[kok Dj vius glrk{kkj o vaxwbs Dj uksvsjh ls rlnhD Djk fn, vksj Dctk Hkh oknhx. k Dks ns fn;k rfkk fqj vius firk Dk vaxwbk canj Dh miflfkfr esa yxok fn;ka 3- D;k fnukaD 31-5-86 Dks izfroknh us ,D bDjkj ukek vkjkth [kljk uecj 263 jDck pkj ch?kk 2 fclok Dk fy[kk ftlDs vkjkth Dks Dqy jDe 25]000@& rD ;D 23]000@& :i;s uDn izkir Dj o 2000@& :i;s oDr O;ukek ysuk r; Dj eqgk;nk fy[kokDj vius glrk{kj Dj fn,a 4- D;k fnukaD 31-5-86 Dks Dkfct nks ch?kk vkjkth Dk lksnk Hkh 12]000@& esa eksf[kD :i ls Djk fn;sa 5- D;k oknhx. k Dk c;ukek Djkus Ds fy, cDk;k jDe vnk Dj ges'kk rs;kj Fks o gs ysfDu izfroknh us xkwao Ds yksxksa Ds cgDkos esa vkDj fnukaD 9-1-87 Dks c;ukek Djkus ls buDkj Dj fn;ka 6- D;k izfroknh fo'ks"k gtkz 2000@& :i;s ikus Dk vf/kDkjh gsa 7- vuqrks"k** The first appeal was allowed and the finding recorded from issue Nos. 1 to 6 were decided in favour of the plaintiff. So far as first issue is concerned, it was found that the land was mortgaged by Ex. 3 as the plaintiff Jagram PW 1 has not stated as to whether it contains the signature of the defendant Chajju Ram. The Mortgage-deed could not have been executed without registration. The order of thetrial court was up-held on this ground. So far as this issue is concerned, it is not in dispute before us and this appeal is challenged on rest of the issues. The submission of the learned counsel for the appellants is that neither there was any execution of agreement for mortgage deed as alleged by the plaintiff and the Khatedar of the disputed land was Mangla Ram who has expired and Chaju Ram had no authority to sign such an agreement for mortgage of land. The plaintiff has prepared forged document. The first agreement for sales is said to have been executed on 22. 9. 1983 for 2 Bighas in respect of Rs. 12,000/- while the second agreement is alleged to have been executed on 31. 5. 1986 for 4 Bighas and 2 Biswasof land for Rs. 25,000/- out of which Rs. 23,000/- are said to have been received and on that very day remaining 2 Bighas of land of Khasra were said to have been agreed to be sold by verbal agreement. The entire story of the plaintiff is said to be based on fraud and the trial court was justified in dis-believing the witnesses. The conduct of the plaintiff had been contrary to normal human conduct. The trial court wasjustified in dis-believing the oral and documentary evidence of the plaintiff and dismissing the suit. The learned Single Judge was not justified to reverse the finding of fact recorded by the trial court. Attention has been drawn to the various statements recorded and the alleged written agreement also. Learned counsel for the appellants has relied the decision given in thecase of Madhusudan Das vs. Smt. Narayani Bai and Others (1) wherein following observations were made: ``in an appeal against a trial court decree, when the appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. ''
(3.) RELIANCE has been placed on the decision of this court in the case of Janki-dass & Anr. vs. Mahant Dhangir & Ors. (2), wherein following the decision given in the case of Kedarnath vs. Sitaram (3), it was held that in an appeal u/s. 18 it would be open to the court of appeal to consider all the points necessary to be investigated for the determination of the contention of the correctness of the decree under appeal, and that such consideration could not be limited to any particular questionof fact or law, although on a question of fact, they would be extremely slow to interfere where there had been concurrent decision of courts below on such a question. Another decision given in the case of Suraj Narain vs. Gordhan (4) is also referred in the case of Jankidass where it was observed as under: ``in the absence of any such limitation in Section 18 (1) of the Rajas- than High Court Ordinance, it cannot be argued on the analogy of Sec. 100 of the Civil Procedure Code that the High Court would not be entitled to examine in appeal the findings of fact arrived at by the Judge against whose judgment, the appeal is directed. It would not be inappropriate if in an appeal against the judgment of a single Judge the High Court goes into facts and, where necessary, even interfers with findings based on them. Of course, in doing so, the Court will always keep in view the salutary principle that ordinarily it should not interfere with findings of fact, unless the findings are manifestly erroneous and against the weight of evidence on record. '' On the basis of the above proposition of law it is submitted that the Division Bench in special appeal is entitled to interfere with the finding of fact. The decision given in the case of Dr. K. C. Sikroria vs. Smt. Saria Sikroria (5), is also relied wherein it was observed that the jurisdiction of this court in an special appeal under section 18 of the Rajasthan High Court Ordinance has to be exercised sparingly, but that cannot possibly means that injustice can be perpetuated. The interference in the findings arrived at by the Court given while exercising the powers under Section 96 CPC is only warranted when the findings of fact arrived at by the trial Judge are not based on the impressions he gathers from the demea-nour of witnesses, and in that situation it becomes the duty of the Appellate Court to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from provided circumstances. ;