Dubagunta Subrahmanyam, J.
1. This appeal is filed by defendants 1 to 3 in O.S. No. 466 of 1975 on the file of the Principal District Munsif, Kowur against the judgment and the decree dated 30-10-1989 in A.S. Nos. 19 and 24 of 1982 on the file of the Subordinate Judge, Kowur modifying the judgment and decree dated 28-12-1981 made by the Principal District Munsif, Kowur in the above suit.
2. Necessary facts for disposal of this appeal are as follows :
The 1st appellant-1st defendant and Veera Raju (P.W. 9) are own brothers. They got divided and possessed separate properties. The 1st defendant (the defendants hereinafter will be referred to as D-1, D-2 and D-3) is the owner of the plaint B-schedule property, P.W. 9 is the owner of plaint A-schedule property. According to the respondent-plaintiff, on 20-4-1974 D-1 and P.W. 9 agreed to sell their respective properties to the plaintiff for a total consideration of Rs. 10,000/-, on that day D-1 received Rs. 3,000/- as part sale consideration and P.W. 9 received a sum of Rs. 2,000/-as part sale consideration and both of them Jointly executed sale agreement, Ex. A-1 in favour of the plaintiff. He also pleaded that subsequently D-1 and P.W. 9 received separately the balance of sale consideration payable to them and made part payment endorsements. The possession of the suit property was not delivered to the plaintiff on the date of Ex. A-1 agreement. It is the further case of the plaintiff that after part payments were made towards Ex. A-1, at the time of last payment endorsement D-1 and P.W. 9 delivered possession of the suit property to him. He also pleaded that P.W. 9 executed a registered sale deed conveying plaint-A schedule property to the plaintiff and in spite of several demands, D-1 refused to execute a registered sale deed in favour of the plaintiff in pursuance of Ex. A-1 sale agreement. D-2 and D-3 in the suit are not the parties to the sale agreement Ex. A-1. D-1 filed written statement categorically denying execution of Ex. A-1 agreement as well as receipt of sale consideration from the plaintiff. According to the defendants, D-1 sold plaint B-schedule property to D-2 and D-3 under separate sale deeds. The plaintiff wanted a decree for specific performance against all the defendants. It appears that his interim application for temporary injunction in his favour was dismissed by the trial Court. Subsequently he filed an amendment petition with a plea that subsequent to the dismissal of interim Injunction application the defendants have trespassed into the suit property. He sought the additional relief for recovery of possession from all the defendants. On the pleadings of both the parties the trial Court settled appropriate issues for trial. Both the parties adduced oral and documentary evidence in support of their respective pleas. The trial Court opined that D-1 executed sale agreement, Ex. A-1. It disbelieved one part payment endorsement said to have been made by D-1. It decreed the suit against D-1 alone. In the Judgment the trial Court did not state that the suit is dismissed against other defendants viz., D-2 and D-3. However, the decree drafted by the trial Court in pursuance of the judgment indicated that the trial Court dismissed the suit against D-2 and D-3. Aggrieved by the Judgment of the trial Court D-1 preferred one appeal before the lower appellate Court. Aggrieved by the dismissal of the suit against D-2 and D-3, the plaintiff preferred another appeal. Curiously the lower appellate Court delivered two separate Judgments in the two appeals. The lower appellate Court ought to have delivered a common judgment in both the appeals clubbing both the appeals together inasmuch as both the appeals arise out of one and the same suit and judgment. This procedure adopted by the lower appellate Court is to be deprecated. The lower appellate Court dismissed the appeal preferred by D-1. It allowed the appeal filed by the plaintiff. Aggrieved by the two judgments of the lower appellate Court, all the defendants jointly filed the present Second Appeal.
3. At the time of admission of this appeal the learned Admission Judge treated the following grounds formulated in the memo of appeal as substantial questions of law that arise for consideration in the present appeal.
'1. The Courts below committed a palpable error in thinking that the execution of Ex. A-1 by the first defendant is proved by the evidence of P.Ws. 2, 3 and 9. Far from proving the execution, the evidence of P.Ws. 3 and 9 totally belies it. The lower appellate Court misread and misconstrued the evidence of P.Ws. 3 and 9.
2. In any case, the Courts below ought to have seen that the plaintiff is disentitled to the equitable relief of specific performance, as he did not come to Court with clean hands. The trial Court found that the part payment of Rs. 440/- alleged to have been made on 16-6-1974 is not proved, likewise there is no satisfactory evidence to prove the other payments also which are alleged to have been made to the 1st defendant. The appellate Court did not give any finding on this aspect. On the face of the finding recorded by the trial Court it must be held that the plaintiff is disentitled to the relief of specific performance.
3. For the self same reasons the finding of the trial Court that the plaintiff was put in possession of the land pursuant to the agreement of sale and that he is entitled to the provision (perhaps protection under) of Section 53-A of the Transfer of Property Act is erroneous and unsustainable. The appellate Court failed to consider or give any finding on this aspect. The very fact that the plaintiff has converted the suit into for possession by amending the plaint clearly shows that he was never put in possession of the land.'
4. Points :--The learned advocate for the appellants contended that the evidence adduced by the plaintiff did not establish that D-1 executed the sale agreement Ex. A-1. He also contended that the evidence categorically discloses that all the brothers of D-1 sold their respective extents of land to the plaintiff and the said fact shows that even if the agreement Ex. A-1 is true, the sale by D-1 is a distress sale and, therefore, the Court should not grant a decree for specific performance. At this juncture itself it is necessary to point out that D-1 in his written statement did not take the plea that it is a distress sale. When D-1 did not take such a plea in his written statement, the contention raising a pure question of fact at the time of hearing of Second Appeal cannot be entertained and decided in a Second Appeal.
5. Further such a plea is not based on any pleading. In this regard the learned counsel for the appellants relied upon two decisions. The first decision is the decision of the Calcutta High Court in Sen Mukherjee and Co. v. Chhaya Banerjee, : AIR1998Cal252 . In para 36 of the judgment their Lordships as they were at that time stated the circumstances, conditions and incidents to be taken into consideration in granting or withholding the relief of specific performance. Para 36 of the judgment reads as follows :
'In granting or withholding the relief, the Court should take the following circumstances, conditions and incidents into consideration :
(1) The contract must be certain, unambiguous and upon a valuable consideration;
(2) The contract must be perfectly fair in all its parts;
(3) The contract must be free from any fraud, misrepresentation, imposition or mistake;
(4) The contract must not impose an unconscionable or hard bargain;
(5) The performance of the contract must not impose any hardship on the defendant, such as he could not foresee;
(6) The contract must be capable of specific execution through a decree of the Court.'
Another decision relied upon is a judgment of this Court in M.A. Jabbar v. L.I.C. House Building Employees Society, : 2000(2)ALD2 . In this judgment the learned single Judge of this Court laid down the instances where the relief of specific performance can and cannot be enforced. For the purpose of disposal of this Second Appeal, in my considered opinion, it is not necessary to extract the principles of law laid down in the above decision of this Court. Both these decisions would not come to the aid of the first appellant-D-1 inasmuch as he did not raise the plea that even if Ex. A-1 is a true document the sale is a distress sale. It is also contended that hardship to be caused to D-1 by granting the decree of specific performance is to be taken into consideration. There is no dispute regarding the said proposition. But hardship to be caused to D-1 is to be established by D-1. It is not shown to this Court that hardship would be caused to the 1st defendant if the suit is decreed after the Court finds that the sale agreement Ex. A. 1 is genuine and supported by valid consideration. Therefore, the contention relating to distress sale and hardship is to be rejected.
6. The learned counsel for the respondent-plaintiff seriously contended that both the Courts below concurrently recorded a finding of fact that Ex. A-1 is a genuine document executed by D-1 and, therefore, in a Second Appeal this Court is not entitled to set aside the said concurrent finding of fact recorded by the two Courts below. In this regard he placed reliance upon two decisions of the Supreme Court. The Supreme Court in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, : AIR1999SC864 , held that the question whether finding of fact reached by the Courts below is against the weight of evidence or not, is a question which will remain in the realm of appreciation of evidence and does not project any question of law, much less, any substantial question of law and the High Court in a Second Appeal is not entitled to re-appreciate the evidence. Another decision is a decision of the Supreme Court reported in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, : [1999]2SCR728 . The Supreme Court held as follows in the above decision :
'It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for Interference in second appeal when it is found that the appellate Court has found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.'
In the above decision the Supreme Court laid down certain principles of law in which in a Second Appeal the High Court can interfere with the findings of fact recorded by the two Courts below. One of the principles in which High Court hearing a Second Appeal can interfere with a finding of fact recorded by the Courts below is that the conclusions of the two Courts below are based upon inadmissible evidence or arrived at without evidence.
7. I am thus satisfied that if this Court finds that the conclusions of the trial Court regarding the genuineness of Ex. A-1 sale agreement are based upon inadmissible evidence or arrived at without evidence, this Court is certainly entitled to set aside the findings of fact recorded by the trial Court and first appellate Court. The plaintiff pleads that D-1 for valuable consideration agreed to sell plaint B-schedule property to the plaintiff and executed sale agreement Ex. A-1. It is for the plaintiff to prove that Ex. A-1 is a genuine document and D-1 agreed to sell plaint B-schedule property to the plaintiff for valuable sale consideration. Burden of proof lies solely on the plaintiff to prove the above facts. As already noticed in his written statement D-1 categorically denied the execution of sale agreement, Ex. A-1. His evidence is also to the same effect during the course of trial. There are two attesters to the sale agreement, Ex. A-1. There is a scribe for the sale agreement, Ex. A-1. The scribe of Ex. A-1 is stated to have died prior to the commencement of trial. Therefore the plaintiff could not examine the scribe. The plaintiff examined one of the attesters of Ex. A-1 as P.W. 2. He did not examine the other at-tester of Ex. A-1. No reasons are given by the plaintiff for not examining the other at-tester. P.W. 9, who is the brother of D-1 is said to be a joint executant of Ex. A-1 along with D-1. As D-1 denied the execution of sale agreement, at the instance of the plaintiff. Ex. A. 1 was sent to Finger Print Expert for comparison of the disputed thumb mark of D-1 with the specimen thumb marks of D-1. The expert gave the opinion that the thumb mark in Ex. A-1 is the thumb mark of D-1. The finger print expert was examined as P.W. 2 by the plaintiff. Both the Courts below relied upon the evidence of P.Ws. 2, 3 and 9 to arrive at the conclusion that the document Ex. A-1 is genuine document executed by D-1.
8. I have very carefully considered the evidence of P.Ws. 2, 3 and 9. In my considered opinion, the appreciation of evidence made by the two Courts below is perverse. Their findings are not based on evidence available on record. In other words the findings are recorded without any evidence. I give the reasons for my conclusions. P.W. 9 is an important witness. He is one of the executants of Ex. A-1 document. He merely deposed that he executed Ex. A-1 Sale Agreement. But it was not elicited from him by the plaintiff that D-1 joined with him and jointly executed the sale agreement Ex. A-1. It is not elicited from him that D-1 received any sale consideration from the plaintiff. It is not also elicited from him by the plaintiff that at any time D-1 agreed to sell plaint B-schedule property to the plaintiff for any reason whatsoever. Therefore P.W. 9 did not at all depose that D-1 agreed to sell plaint B-scheduled property to the plaintiff. What all elicited in his chief examination is to the effect that he alone executed the sale agreement. Thereafter the alleged thumb mark of D-1 in Ex. A-1 was shown to the witness-P.W. 9. He deposed that it was the thumb impression of his elder brother viz., D-1. No further evidence was elicited from him to explain under what circumstances or for what reason the alleged thumb mark of D-1 found place in the sale agreement-Ex. A-1. In his chief examination it was further elicited that he cannot say why D-1 put his thumb mark and not his signature. In his cross-examination he deposed that D-1 has not put his thumb mark in his presence. No prudent man under any circumstances can say from the above evidence of P.W. 9 that P.W. 9 had spoken about the due execution of Ex. A-1, sale agreement by D-1 and passing of sale consideration. No Court can give a finding basing on such evidence of P.W. 9 that his evidence proved that D-1 agreed to sell plaint B-schedule property to the plaintiff. After P.W. 9 in his cross-examination stated that D-1 did not put his thumb mark in his presence, plaintiff did not seek the permission of the Court to cross-examine PW 9 treating him as a hostile witness. This is an important factor to be kept in mind.
8A. The two Courts below relied upon the evidence of the other witness P.W. 3. In his chief examination P.W. 3 did not depose that either D-1 or his brother P.W. 9 agreed to sell either plaint A-schedule property or plaint B-schedule property to the plaintiff. What all elicited in his chief examination is that Ex. A-1 bears his signature and D-1 put his thumb mark and his brother P.W. 9 signed before him and the other attestor. As already pointed out it is for the plaintiff to prove the due execution of Ex. A-1 agreement. In his cross-examination P.W. 3 deposed that by the time he went to the residence of the scribe of Ex. A-1, the document was already executed. He deposed that he met D-1 while he was returning after putting his thumb mark. He also further deposed that by the time he went to attest Ex. A-1, D-1 as well as P.W. 9 were not present there. Therefore, from his evidence no Court can give a finding that P.Ws. 3 and 9 had proved that D-1 executed the sale agreement, Ex. A-1 and received sale consideration. Keeping in view these strong circumstances 1 have observed supra that the findings of fact recorded by the two, Courts below are perverse findings. Both the Courts below conveniently ignored the crucial evidence of P.Ws. 3 and 9 regarding the execution of Ex. A-1 and gave a finding that D-1 executed sale agreement, Ex. A-1. Those findings are not based on legal evidence available on record.
9. Coming to the evidence of expert, P.W. 2, what all it can be said is that the thumb mark in Ex. A-1 is the thumb mark of D.W. 1. However his evidence is not a substitute for proof of due execution of Ex. A-1 document by D-1. D-1 admittedly is an illiterate person. When he categorically denied the execution of Ex. A-1 sale agreement, by mere solitary circumstance that the thumb mark in Ex. A-1 is the thumb mark of D-1, without any further proof, the Courts below are not entitled to give a finding that D-1 agreed to sell the suit property and accordingly executed Ex. A-1 agreement in favour of the plaintiff. It is already noticed that P.Ws. 3 and 9 did not at all depose that D-1 received any part of sale consideration from the plaintiff. Further the trial Court disbelieved one of the payment endorsements allegedly made by D-1 after executing Ex. A-1 sale agreement. Thus the two Courts below erred seriously in ignoring the legal evidence available on record I am of the view that the perverse findings of fact recorded by the two Courts below are liable to be interfered with by this Court, 1 accordingly hold these points against the respondent-plaint and in favour of appellants.
10. In the result the appeal is allowed and the judgments of the two Courts below are set aside. The suit in O.S. No. 466 of 1975 is dismissed with costs. The respondent-plaintiff shall pay to the appellants the costs in this Court as well as in the two Courts below.