S.N. Deedwania, J.
1. This is a second appeal by defend ants-appellants Bherulal and Ambalal against the Judgment and decree, dated November 1, 1969 of the learned Additional Civil judge, Udaipur, dismissing their appeal against the judgment and preliminary decide petted by the learned Munsif Magistrate, Kanore, In favour of the plaintiffs respondents for redemption of the suit property.
2. The facts relevant to the disposal of this second appeal are these According to the plaintiffs-respondents, Brijlal mortgaged with possession the suit-shop with the defendants by a registered mortgage-deed on 12-10-59 for a sum of Rs. 700/-. Brijlal then sold this shop to the plaintiffs on 23-10-62 under a registered sale deed. On 6-7-65, plaintiffs served a notice on the defendants for redemption of the shop and thereafter filed a suit. It appears that Brijlal had died before filing the suit and, therefore, it was filed against defendants-appellants Bherulal and Ambalal sons of the mortgagor of the suit-shop. It was not disputed by the appellants that the shop was mortgaged with Brijlal However, the right of the respondents to redeem the property was disputed on the ground that on 11-11-61 Brijlal and Govinddas sold this property to them for a sum of Rs. 1200/- and took a sum of Rs. 300/- and agreed to execute a registered sale-deed. On 11-10-66, Govinddas and Banshilal executed a registered sale-deed in favour of appellants. Issue No. 1 and 2 raised on the pleadings of the parties were to the following effect:
1. whether Bherulal entered into an agreement for sale of the suit-shoo from Brijlal and Govinddas and If so, what is its effect on the suit.
2. what is the effect on the suit of the sale of the suit property on 11-10-66 for a sum of Rs. 1200/- in favour of defendants by Banshilal and Govinddas sons of Brijlal.
3. The learned Munsif held that the registered sale deed, dated 11-10-66 in favour of the appellants by the sons of Brijlal was of no effect in view of Section 52 of the Transfer of Property Act With regard to Ex A/1, the learned Munsif was of the opinion that the agreement Ex. A/1 and the receipt Ex A/2 were not executed by Brijlal and, therefore, the respondents were entitled to a preliminary decree for redemption. The lower appellate court agreed with the aforesaid findings of fact arrived at by the learned Munsif Magistrate.
4. I have heard the learned Counsel for the appellants and none was present on behalf of tire respondent and perused the record of the case carefully.
5. It was strenuously argued by the learned Counsel for the appellants that the findings of fact arrived at by both the courts below were vitiated, at those were based on conjectures and imaginary inferences. The evidence was not properly appreciated and some of the important circumstances were left out of consideration. I have considered the argument advanced by the learned Counsel for the appellant carefully. The findings whether Ex.A/1 and Ex.A/2 were executed, by Brijlal are pure findings of fact and only question for determination is whether those are based on surmises and conjectures. The learned Munsif while coming to the conclusion that Ex.A/1 and Ex.A/2 were not executed by Brijlal inter aha observed:
1. Ex. A/1 was executed on a stamp paper of the value of Rs. 5/- while ought to have been executed on the stamp of Re 1/- or Rs. 1.50 n p. The defendants did not give any explanation in this regard.
2. There was contradiction in between the statement of DW1 Bherulal and DW3 Girdharilal who stated that Ex. A/1 was written at his house, while DW1 Bherulal seated that it was written at the house of Gordhandas.
3. The tenor and language of the sale-agreement Ex. A/1 dated November 11, 1961 it suspicious, in as much as, no date for the registration of sale deed was fixed.
4. The regular sale deed Ex. A/3 was executed on 11-10-66 by Banshilal and Govinddas sons of Brijlal after suit for redemption of the property had been filed.
5. Ex.5 was the sale-deed of another shop executed by Brijlal in favour of Bherulal. In the sale-deed dated 4-12-64 Brijlal admitted that the suit-shop was in the possession of defendant Bherulal as a mortgage.
6. In Ex. A/1 dated November 11, 1961, it is mentioned that Brijlal had become old and infirm and, therefore, entire business of the family was being locked after by Govinddas. It was also executed by Brijlal and Govinddas. while the later documents sale-deed Ex. A/1 dated November 11, 1961 and sale-deed Ex. 5 dated December 4, 1954 were executed by Brijlal alone.
7. The defendants did not reply to the notice for redemption given by the respondents to them.
6. The statement of D.W. 2 Ratanlal with regard to signature of Brijlal on Ex. A/1 was not reliable, though he claimed to be familiar with the signature of the latter. The reason given was that D.W. 2 Ratanlal could not identify the signature of Brijlal on Ex. A/2 Moreover, he was not an impartial witness because in a criminal case, son of Bherulal appeared on his behalf. The statements of PW 1 Jagdish and PW 3 Rampal were reliable and they stated that on Ex. A/1 and Ex. A/2 the signature of Brijlal were not in his hand-writing.
7. The learned Munsif Magistrate compared the signatures of Ex. A/1 and Ex. A/2 and sale-deed Ex. 2 and came to the conclusion on their comparison that the signatures of Brijlal on Ex. A/1 and Ex. A/2 are not in his hand writing and consequently forged. The learned appellate court also agreed with these observations generally and further noted:
1. that the conduct of the defendants was not fair in obtaining further (sic)ercortment by Banshilal on Ex. A/1 after the suit for (sic)sedexoption had been filed.
2. that in the written statement filed by the defendants, no reference what so ever was made to receipt, Ex. A/2.
3. that D.W.1 Bherulal in his statement admitted that he paid Rs. 200/- to Govinddas and Banshilal one year after the death of Brijlal at the time of Ex. A/2 dated 12-3-66 Thus, according to Bherulal, Brijlal died in or about the month of November, 1965 and could not have executed Ex. A/2 dated 12-3-66.
8. It was vehsmently argued by the learned Counsel for the appellants that both the courts below were in error in placing undue importance on the contradiction in the statement of D.W. 1 Bherulal and D.W. 3 Girdharilal. D.W.1 Bherulal stated that Ex. A/1 was written on 11-11-61 by Gordhanlal at his house. D.W.3 Girdharilal on the other hand, stated that he wrote Ex. A/1 at this house. This contradiction crept in, because probably the trial court wrote the name of Gordhanlal as scribe of Ex. A/1 instead of Girdharilal. I am not impressed with that argument. There is no reason to suppose that the statement of D.W.1 Bherulal was not correctly recorded by the trial court. Therefore, there is a further discrepancy inasmuch as, according to Bherulal scribe of Ex. A/1 was Gordhanlal while on the other hand, D.W.3 Girdharilal claimed to be its scribe.
9. It was argued by the learned Counsel for the appellants that two stamps were purchased on 6-11-61; one in denomination of Rs. 5/- and other of Rs. 20/- and the second stamp was utilised by the sale deed of the suit shop in favour of the respondents. If stamp of Rs. 5/- had been not utilised before this on 11-11-61, it would have also been utilised for the sale of the suit shopin favour of the respondents. This would conclusively establish that Ex. A/1 was not forged. I have considered the argument carefully but find it to be devoid of any force.
10. From a bare perusal of Ex. A/1, it is evident that it was not an agreement to sell but the sale deed of the suit-shop in favour of the appellants. Therefore, stamps worth more than Rs. 5/- were required to be used but a stamp for Rs. 5/- only was utilised for the sale-deed because no other stamp was available with Govinddas. There is no reason to suppose because other stamp of Rs. 20/- was utilised for the sate of the property in favour of the respondents, therefore, the inference was that the stamp of Rs. 5/- had already been utilised for execuring the sale-deed, Ex.A1. The greater probability it that one stamp value of Rs. 20/- purchased on 5-11-61 was utilised along with another stamp of Rs. 20/- and this stamp of Rs. 5/- remained blank with Govinddas. Therefore, though, Ex. A/1 was a sale-deed, it was written on a stamp of Rs. 5/- only. This probability is further strengthened by the fact that both Govinddas and his brother Banshilal did not enter into the witness box in support of the claim of the appellants. The learned Counsel for the appellants could not point out any other infirmity in the reasons given by the trial court and the appellate court in coming to a conclusion that Ex. A/1 and Ex. A/2 did not bear the signature of Brijlal.
11. It was lastly contended that the learned lower courts were not justified in relying upon the circumstance in discarding the positive evidence tendered by the appellants. I am unable to agree with this contention because In my opinion, both the courts below have given cogent reasons for disbelieving the evidence adduced by the appellants to prove the execution of Ex. A/1 and Ex. A/2 by Brijlal. I may state that Ex. A/2 and Ex. A/3 were of no importance because admittedly they could not pass any title in favour of the appellants. The title if at all could be passed in favour of the appellants, by virtue of Ex. A/1 but it could not be proved that was executed by Brijlal. The argument of the learned appellants based on the following observations in the case of Raj Singh v. Ch. Gajraj Singh : AIR1958All335 are not material for the decision of the case, inasmuch as, in my opinion, the finding of fact arrived at by the two courts below is neither perverse nor (sic)unsupported by any evidence or vitiated by an essentially wrong approach in (sic)the appreciation of the evidence. I am, therefore, not inclined to reappraise the evidence adduced by the parties en the aforesaid findings of fact, Raj Singh v. Ch. Gajarj Singh : AIR1958All335 .
The first appellate court was the first court of facts and the findings of fact recorded by it must be respected by the High Court in second appeal unless they are perverse, unsupported by evidence or are vitiated by an essentially wrong approach. It is not open to the plaintiff-appellant to request the High Court to reappraise the evidence.
12. However, It is now not in the Interest of justice to prosecute Bherulal and Girdharilal, so many years after the incident. The order of the trial court for their prosecution is, therefore, set aside.
13. In the result, the appeal being devoid of any force is dismissed with costs.