1. The present Second Appeal has been filed by the original plaintiffs to challenge the judgment and decree passed by the learned District Judge-3, Sangli in Regular Civil Appeal No.182 of 2014 on 6th March 2019, thereby allowing the appeal filed by the present respondents-original defendants and dismissing the suit filed by the present appellants, i.e., Regular Civil Suit No.163 of 2010, which had been decreed by the learned Joint Civil Judge, Junior Division, Vita on 2nd May 2014. The suit was filed for specific performance of the contract.

2. The appellants-original plaintiffs had come with the case that the immovable property bearing Revisional Survey No.770 of Kasbe Vita, Taluka Khanapur, District Sangli originally belonged to the father of the defendants, namely, Virupaksha Khalipe. He had intended to sell the said property because of his personal need. The father of plaintiff No.1 and the uncle of plaintiff No.2 agreed to purchase the suit property, and the father of the defendants entered into an agreement to sell on 30th October 1977. The earnest amount of Rs.1,000/- was paid at that time. It is the contention of the plaintiffs that the possession of the suit property was also handed over on the date of the agreement to sell to the father of plaintiff No.1 and the uncle of plaintiff No.2. It was also agreed that the father of the defendants would seek the requisite permission from the District Collector before the execution of the sale deed and, by issuing one month's advance notice thereafter, would execute the sale deed in favour of the father of plaintiff No.1. The plaintiffs contend that Virupaksha Khalipe failed to give the notice as agreed and failed to execute the sale deed. Therefore, the plaintiffs issued a notice to the defendants on 17th September 2010. According to the plaintiffs, they have the right to get the sale deed executed in their favour. In spite of receipt of the said notice, when the defendants failed, the suit for specific performance of the contract was filed.

3. Notice was issued to the defendants. They filed a written statement at Exhibit–‘19’. They have admitted the fact that the property belongs to their father, but the rest of the contentions have been specifically denied. It has been contended that the suit property is an inam land and, therefore, prior sanction of the District Collector was necessary before execution of the sale deed. They specifically denied that their father had executed any such document on 30th October 1977 or had received the earnest amount. They contend that the suit property is in possession of their father and that after the demise of their father on 27th July 1992, the property is in their possession after Mutation Entry No.36344 was effected.

4. Taking into consideration the rival contentions, the learned Trial Court framed the issues. The plaintiffs have led oral as well as documentary evidence; however, the defendants declined to adduce any evidence, either oral or documentary, by filing pursis at Exhibit–48.

5. The learned Trial Court held that the plaintiffs had proved that the father of the defendants had executed the agreement to sell dated 30th October 1977 in favour of the predecessors of the plaintiffs and had received the earnest amount. The defendants’ father committed breach of the contract and further held that the plaintiffs were ready and willing to perform their part of the contract and were therefore entitled to get specific performance.

6. The original defendants, being aggrieved by the said judgment and decree, filed Regular Civil Appeal No.182 of 2014 and, after hearing the appellants only, the learned First Appellate Court reversed the findings. It was noted that despite receipt of notice of the appeal, the respondents, i.e., the original plaintiffs, remained absent and, as per the order dated 10th November 2014, the appeal proceeded ex parte against them. The First Appellate Court held that the plaintiffs had failed to prove that Virupaksha Khalipe had executed an agreement to sell the suit land on 30th October 1977 in favour of the predecessors of the plaintiffs. It has also been held that the plaintiffs had failed to prove that they were ready and willing to perform their part of the contract, and it proceeded to allow the appeal and dismiss the original suit by judgment and decree dated 6th March 2019, and thus the original plaintiffs are before this Court.

7. Heard Mr. Patil, learned Advocate for the appellants, and Mr. Sale, learned Advocate for the respondents.

8. It has been vehemently submitted on behalf of the original plaintiffs that the findings of the Trial Court are legal and correct. The plaintiffs had adduced both oral and documentary evidence in support of their contentions. Plaintiff No.1 has examined himself at Exhibit–24, and to prove the agreement to sell dated 30th October 1977, the son of the scribe has been examined. So also in order to prove another document dated 20th November 1979, which relates to payment of further amount, PW-2 Balwant, son of the scribe, has also been examined. The testimony of both these witnesses has been considered by the learned Trial Court, and it has been held that the document is proved in view of Section 90 of the Indian Evidence Act, 1872 (hereinafter referred to as “the Evidence Act”). The presumption has been rightly invoked, as Section 90 of the Evidence Act prescribes that where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in in the handwriting of any particular person, is in that person’s handwriting. The presumption arose, however, to the extent that, in the case of a document executed or attested, it was duly executed and attested by the person who purports to have executed and attested it, when the custody of such document is proved to be more than thirty years old.

9. The learned First Appellate Court was wrong in holding that the contents of the documents had not been proved, though the son of the scribe had identified the handwriting and the signature of his father. It has been further submitted on behalf of the appellant that the defendants have not entered the witness box and have not adduced any evidence. Therefore, an adverse inference ought to have been drawn. Further, in view of the contents of the written statement, especially paragraph No.9, the First Appellate Court ought to have considered that the execution of the document was admitted by the defendants when it was contended that no action was taken by the father of plaintiff No.1 and the uncle of defendant No.2 during their lifetime, and therefore, it will have to be presumed that the execution of the document was not for its implementation. The defendants then had put forward their own story stating that Virupaksha Khalipe settled at Sangli in 1979 and, therefore, if any, document would have been got executed from Virupaksha Khalipe. The earnest amount was returned in 1980. No evidence has been adduced to support the said contentions. When the presumption under Sections 90 and 114 of the Evidence Act was in favour of the plaintiffs, the First Appellate Court ought to have dismissed the appeal. The substantial questions of law are, therefore, arising in the present matter.

10. Before turning to the assessment, the legal position in respect of Section 100 of the Code of Civil Procedure, 1908, is required to be considered. As per the law laid down by the Hon’ble Supreme Court in a catena of decisions, the jurisdiction of the High Court to entertain a Second Appeal under Section 100 of the CPC, after the 1976 amendment, is confined only to cases involving a substantial question of law.

11. Reliance can be placed on the decision in Ishwar Dass Jain vs. Sohan Lal reported in (2000) 1 SCC 434, wherein it has been observed that –

                   “Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.”

12. Therefore, taking into consideration the observations in the above said case and also on the decision in Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar reported in (1999) 3 SCC 722), wherein it has been held that –

                   “In a Second Appeal under Section 100 of CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being :

                   (i) Contrary to the mandatory provisions of the applicable law;

                   OR

                   (ii) Contrary to the law as pronounced by the Apex Court;

                   OR

                   (iii) Based on in-admissible evidence or no evidence.”

13. Taking into consideration the aforesaid decisions of the Hon’ble Supreme Court, it can be said that unless it is shown by the appellant in the Second Appeal that substantial questions of law are involved, the appeal cannot be admitted and considered. The memo of appeal in the present Second Appeal does not specifically state or set out any substantial question of law. It cannot then be stated that it is only the duty of the Court to formulate such substantial questions of law; however, a liberal interpretation can be adopted and, only on this technical ground, the Second Appeal need not be dismissed. But the fact and position of law remains that unless it is shown that substantial questions of law arise, this Court cannot proceed with the matter.

14. Here the plaintiffs are taking advantage of Section 90 of the Evidence Act and submit that the agreement dated 30th October 1977 was proved by them through PW-2 Balwant, the son of the scribe. From the documents on record and the pleadings, it can be considered that the plaintiffs intended to state that, by way of the agreement dated 30th October 1977, even the possession of the property was handed over by Virupaksha to the predecessors of the plaintiffs. The question then arises as to whether, when the value of the immovable property was more than Rs.100/- and possession was allegedly handed over, the document ought to have been registered. Admittedly, the said document dated 30th October 1977 is not a registered instrument. Since it has been considered as an agreement to sell, the law as it stood in the year 1977 will have to be considered, and then the proof of that document will have to be examined as to whether it is required to be proved under Section 68 of the Evidence Act, which pertains to proof of execution of documents required to be attested, or under Section 72, which deals with proof of documents not required to be attested. Even if I consider the fact that in the year 1977, even if possession was handed over, the agreement to sell was not a compulsorily registrable document; yet, in view of Section 72 of the Evidence Act, an attested document not required by law to be attested may be proved as if it was unattested. Here both the documents, i.e., dated 30th October 1977 and 20th November 1979, are attested documents, but instead of examining the attesting witness, the plaintiffs have preferred to examine the son of the scribe. It was, therefore, specifically asked as to whether the attesting witness to the document, especially the document dated 30th October 1977, was alive. Learned Advocate for the appellant submits that he was alive when the evidence was adduced. Therefore, when the attesting witness was alive, he ought to have been examined, and the plaintiffs were not justified in relying on the presumption under Section 90 of the Evidence Act. Although the presumption under Section 90 of the Evidence Act is available in respect of a document which is more than thirty years old, yet it is a limited presumption. At the most, it can be presumed that the said document is coming from the custody of a proper person, but as regards its contents, they are required to be proved separately. I would like to rely upon the judgment of the Hon’ble Supreme Court in the case of Union of India (UOI) vs. Ibrahim Uddin & Anr., reported in (2013) AIR (SCW) 2752, wherein it has been held that the contents must be proved separately.

15. At the cost of repetition, it can be said that when there is no explanation by the plaintiffs for not examining the attesting witness, the learned Trial Court was not justified in relying on the presumption under Section 90 of the Evidence Act.

16. It is then tried to be submitted that defendant No.1 is the signatory to the document dated 20th November 1979 and, taking into consideration the contents of the written statement, the onus had shifted to the defendants to disprove the same. Here, it is to be noted that unless the plaintiffs discharge their burden, the onus does not shift to the defendants. In his examination-in-chief, PW-1 Sampat, who is plaintiff No.1, has not stated in specific terms that he was present at the time of execution of the said document or documents. Under such circumstances, there ought to have been some person to state that he had seen the signatories to the documents signed. PW-3 Shrikant appears to be the son of the attesting witness, and he has stated that his father’s health condition is not proper and that, due to his age, his mental and physical condition is not proper. He has then identified the signature of his father; however, while assessing his testimony, it can be seen that he has not produced any document to support his contention that the mental and physical condition of his father is not proper, and that he would be unable to answer rational questions that would be put to him, or that his memory had failed due to age. Thus, taking into consideration the facts and the evidence from all angles, it can certainly be said that the learned Trial Court erred in invoking the presumption under Section 90 of the Evidence Act and, therefore, the learned First Appellate Court was justified in reversing the findings to that effect.

17. Another angle that is required to be considered is in respect of due notice of the appeal. The present appellants, who were the respondents before the First Appellate Court, failed to appear, and the matter proceeded ex parte against them. Without giving any reasonable ground for their absence, they cannot now criticize the reasons given by the First Appellate Court for reversing the judgment and decree. Of course, on the point of law, they may be entitled to put forth their case, but not on the facts.

18. Another point in respect of readiness and willingness to perform their part of the contract is concerned, I am of the opinion that the learned First Appellate Court has rightly considered that the predecessor of the plaintiffs had not taken any action during their lifetime and there is no explanation for the same in the testimony of PW-1 Sampat. No doubt, even for the sake of arguments, I take note one of the conditions put for execution of the sale deed was to obtain the necessary permission from the District Collector, then it was the equal duty on the part of the predecessor of the plaintiffs to see that a proper application was made within a reasonable time to obtain such approval or sanction. The cross-examination of PW-1 Sampat would show that he was aged 16 to 17 years when the document was executed. He admits that the land was inam land and that it was necessary to obtain the requisite permission. He claims ignorance in respect of the fact as to whether his father had given any notice to the predecessors of the defendants during his lifetime. His father expired in the year 2000, and the father of the defendants expired 20 to 25 years prior to his deposition. He admits that since the death of his father, i.e., in 2000, till 2010, they had not issued any notice to the defendants. Under such circumstances, it cannot be stated that the plaintiffs had readiness and willingness to perform their part of the contract. Even if we brush aside the point as to whether the time of performance of the contract has been considered by the Trial Court or not, the fact remains that from 1977 till 2010, i.e., when the suit was filed, there is a long lapse of time, and it cannot be stated that any action was taken by the plaintiffs within a reasonable time. Therefore, taking into consideration the law point as well as factual aspects surrounding the law, I am of the opinion that no substantial question of law arises in this matter and the appeal deserves to be dismissed.

19. Accordingly, the Second Appeal stands dismissed. No order as to costs.

20. In view of the disposal of the Second Appeal, the Civil Application also stands disposed of.