Sanjay Karol, A.C.J. - Appellant-plaintiff Raj Kumar Garag (hereinafter referred to as the plaintiff), whose suit for specific performance of agreement to sell dated 24.8.2006 (Ex.PW- 2/A), stands dismissed by the learned Single Judge of this Court, lays challenge to the judgment dated 26.9.2011, passed in Civil Suit No. 45 of 2007, titled as Raj Kumar Garg v. Raj Kumar and another, by way of present appeal, preferred under Section 10 of the Letters Patent Appeal and section 96 of the Code of Civil Procedure.

2. Facts, in brief, are as under:

(a) Allegedly, vide Agreement dated 24.8.2006 (Ex.PW-2/A), plaintiff agreed to purchase 65 bighas of agricultural land, owned by respondents No. 1 & 2-defendants Raj Kumar and Ajay Kumar (hereinafter referred to as the defendants). Total sale consideration being 48 lakhs, out of which Rs. 4 lakhs was paid at the time of signing of the agreement, with the remaining amount agreed to be paid at the time of registration of the sale deed, which was to be done on or before 23.4.2007. On 20.4.2007, plaintiff sent a registered communication (Ex.PW-2/C) to the defendants, asking them to execute the sale deed. On 23.4.2007, though plaintiff made himself available before the Sub Registrar, but defendants chose neither to respond to the notice nor remain present for execution of the sale deed. Resultantly, on 21.6.2007, plaintiff presented the plaint, seeking specific performance of the agreement.

(b) While specifically denying the plaintiffs case, in the written statement, so filed by them, defendants termed the agreement to be an act of fraud and concoction on the part of the plaintiff, in connivance with one Ankush Vasishta in whose favour they had initially executed Power of Attorney for sale of 50 bighas of agricultural land, for a consideration of Rs. 3 crores. Sale deed was to be executed in favour of Sudarshan Sharma of Chandigarh. On the asking of said Ankush Vasishta, on 16.1.2007, they executed certain papers. However, while leaving, by mistake, copy of one such paper was left behind, which, when shown to their well-wisher and neighbour Gopal, revealed the fraud perpetuated upon the defendants. Resultantly, they firstly cancelled the Power of Attorney issued in favour of Ankush Vasishta and thereafter reported the matter to the police and lodged several complaints. On 22.2.2007, a complaint was lodged at Police Station, Dharampur. Similar complaint was sent to the Director General of Police, Shimla and Honble the Chief Minister of Himachal Pradesh for conducting an enquiry. Further, defendants filed a suit for declaration, impleading Ankush Vasishta and the present plaintiff as party defendants.

(c) Undoubtedly, in the replication, plaintiff refuted allegations of falsehood, but admitted pending litigation.

3. Pleadings led to the striking of following issues:

"1. Whether this suit is liable to be stayed under section 10 of the Code of Civil Procedure as the defendants have instituted a suit against the plaintiff regarding the property which is subject matter of this suit in the court of Civil Judge (Jr. Division), Kasauli and which suit was instituted prior in point of time to the present suit .....OPD

2. Whether the plaintiff entered into an agreement dated 24.8.2006 with the defendants for purchasing the suit land as alleged ......OPP

3. Whether the plaintiff paid a sum of rupees 4 lacs to defendants as advance of the consideration amount as alleged ......OPP

4. Whether the plaintiff is entitled to the decree of specific performance of agreement dated 24.8.2006, and injunction or any other relief as pleaded ......OPP

5. Whether the agreement dated 24.8.2006 is illegal, false or fictitious and obtained by committing fraud and misrepresentation by plaintiff on the defendants .......OPD

6. Whether the plaintiff is stopped by his own acts, conduct and acquiescence to file and maintain the present suit ......OPD

7. Whether the suit is not maintainable in the present form .....OPD

8. Whether the plaintiff has no legal, valid enforceable and subsisting cause of action against the defendants ...OPD

9. Whether the suit is bad for non joinder of necessary parties ......OPD

10. Relief."

4. Vide impugned judgment, learned Single Judge decided Issue No. 1 as not pressed, Issues No. 2, 3 & 4 against the plaintiff and Issues No. 5, 6, 7 & 8 in favour of the defendants. Issue No. 9 also was decided in favour of the defendants.

5. It is a matter of record that during the pendency of the lis, vide various agreements entered in the year 2014, defendants transferred the suit land in favour of third party, who also stand impleaded as respondents No. 3 to 5 in the present appeal.

6. Noticeably, learned Single Judge clubbed and together decided Issues No. 2 to 9, holding the plaintiff not to have proven valid execution of agreement to sell dated 24.8.2006 (Ex.PW-2/A). Documents proven on record by the parties probablized the defendants version. Learned Single Judge found the version, emanating from the plaintiffs witnesses to be contradictory and the agreement to be a self-serving document, prepared without the parties being ad idem with regard thereto. Sale consideration was found to be inadequately low. What also weighed with the learned Single Judge was the status of the parties, for the plaintiff being a property broker and the defendants being agriculturists and rustic villagers.

7. We shall deal with each one of the contentions raised by the learned counsel appearing on both the sides.

8. The Appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties. Unless restricted by law, the whole case therein is open for rehearing both on questions of fact and law. The judgment of the Appellate Court must reflect its conscious application of mind and record findings supported by reasons on all the issues arising along with the contentions put forth and pressed by the parties for decision of the Appellate Court. The Appellate Court be it High Court or Court subordinate thereto, is to deal with all the issues and the evidence led by the parties. As per the requirement of Rule 31 of Order 41 CPC, judgment of the Appellate Court must state: (a) points for determination; (b) decision there upon; (c) reasons for the decision; and (d) where the decree in appeal is reversed or varied, the relief to which the appellant is entitled to. [Vinod Kumar v. Gangadhar, (2015) 1 SCC 391 (Two Judges); State Bank of India and another v. Emmsons International Limited and another, (2011) 12 SCC 174 (Two Judges); Madhukar and others v. Sangram and others, (2001) 4 SCC 756 (Three Judges); and Santosh Hazari v. Purushottam Tiwari (Deceased) By L.Rs., (2001) 3 SCC 179 (Three Judges)].

9. In this backdrop, the following points arise for consideration:-

(i) As to whether suit filed by the plaintiff ought to have been stayed in view of previously instituted suit;

(ii) Whether the learned Single Judge was right in clubbing the issues and returning common findings there upon;

(iii) Whether the findings returned, reasons assigned and conclusions derived by the learned Single Judge are borne out from the record and legally sustainable;

(iv) Whether plaintiff is entitled to specific performance of agreement dated 24.8.2006 or not.

10. It is a matter of record that prior to the filing of the instant suit, which was so done on 21.6.2007, defendants had already filed a suit against the plaintiff, Ankush Vasishta and Sudarshan Sharma. This was so done on 23.4.2007. It is also a matter of record that subsequently the said suit was withdrawn and as such learned Single Judge rightly held Issue No. 1 to have been rendered infructuous.

11. Further, we are unable to persuade ourselves with the submission made by Mr. G.D. Verma, learned Senior Advocate, that withdrawal of the suit amounted to closure of defendants defence. Significantly, plaintiff did not elaborately discuss or disclose the averments of the said suit in the instant plaint, leaving it to the defendants, elaborately apprising the Court about the same. In the plaint, there is only a passing reference of earlier suit filed by defendant Raj Kumar. What is the nature of the suit What are the issues involved Who all are the parties Whether the issues involved are same in both the suits or not was never disclosed. It is in this backdrop, one cannot hold that mere withdrawal of the earlier suit by the defendants would foreclose their right of taking all the pleas in their defence in a subsequently instituted suit by the plaintiff.

12. Point No.(i) is answered accordingly.

13. Next, it is contended that the learned Single Judge erroneously clubbed all the issues and did not return any findings, specific in nature, on Issue No. 5.

14. Order 20, Rule 5 CPC read as under:-

"5. Court to State its decision on each issue In suits in which issues have been framed, the court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit."

15. With profit we may reproduce what stands observed by the High Court of Madras in Kalahasti Veeramma v. Prattipati Lakshmoyya and others, AIR (35) 1948 Madras 488, which read as under:-

"2. The type of judgment complained of by the learned Subordinate Judge is no doubt open to serious criticism. Unfortunately, many judicial officers have a habit of clubbing together all or most of the issues and writing a diffuse judgment, without bringing their minds to bear on the particular matters that have to be decided under each issue, and then giving their conclusions on the several issues at the end of the judgment. The objection to that form of judgment is not so much that it contravenes the provisions of Order 20, Rule 5 of the Code, which does not seem to require anything more than that reasons should be given for the findings under the individual issues, but rather that it tends to loose thinking; with the result that the Judge does not keep before his mind the essential points to be considered; so that the judgment not only loses clarity but often leads to wrong conclusions, which would have been avoided if the Judge had discussed the various issues separately. Having said this, however, I do not find the judgment under consideration so bad that it was impossible for the appellate Court to appreciate what the findings of the trial Court were. In almost every paragraph a point which had to be determined was considered and the learned Munsifs findings given. The appellate Court would have therefore had no difficulty if it had taken some trouble to ascertain what the findings of the District Munsif were on the various points that had to be considered in the suit and in the appeal-and presumably the learned counsel would have drawn its attention to the findings and the reasons given for them."

16. Having perused the impugned judgment, we notice that the sole issue arising for consideration was valid execution of agreement dated 24.08.2006 and its enforceability. It is in this backdrop, we are of considered view that the findings upon any one or more of the issues was sufficient for decision of the suit. To our understanding, it is this which weighed with the learned Single Judge in clubbing the issues and deciding as such. We notice that learned Single Judge has extensively reproduced the evidence and in the later part of his judgment, also assigned reasons holding the agreement not to be legally enforceable, and as such plaintiff not entitled to the relief prayed for. In our considered view, learned Single Judge has answered the core issue pertaining to the legality and validity of the execution of the agreement.

17. It is in this backdrop, we are not inclined to accede to the request of Mr. G.D. Verma, learned Senior Counsel, of remanding the matter back for read-judication afresh, on all the issues. It is not the requirement of law that in every case matter ought to be remanded. Power of the Appellate Court to hear and adjudicate the matter on law and fact is wide enough to decide the issues, even if required to be answered separately, in accordance with law.

18. Issue as per the dictionary meaning is a point in question, an important subject of debate, disagreement, discussion or argument. It is a disputed point or question to which the parties to action have narrowed their several allegations upon which they are desirous of obtaining decision of Court, either on the question of law or fact. It is the issues framed and not pleadings that guide the parties in the matter of leading evidence. Issues must be confined to the material questions of fact or law (facta probanda) and not on subordinate facts or evidence by which material questions of fact or law are proved or disproved (facta probantia). They are lamp-post which enlighten the parties to the proceedings, the trial Court and even the Appellate Court with regard to the controversy and the evidence for eliciting truth and justice. Quite often distinction between burden of proof and onus of proof is overlooked and forgotten. Whereas the former denotes legal burden and never shifts, on the other hand, the latter would necessarily mean the evidentiary burden and keeps on shifting.

19. A decree is not dependent upon the quality of the judgment but upon the fact that the court has given formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. [Pitamber Prasad v. Sohan Lal and others, AIR 1957 Allahabad 107 (Two Judges)]

20. Point No.(ii) is answered accordingly.

21. Well, it is true that the learned Single Judge has not used the words "falsehood", "fiction", "fraud" or "misrepresentation", while deciding the issues, but then bare reading of Paras No. 28-30 of the judgment reveals that in dismissing the suit, he agreed with the defendants contention.

22. But, let us examine the evidence, led by the parties to the suit.

23. In his support, plaintiff examined the following witnesses:

PW-1 Shri K.K. Sharma

PW-2 Shri Raj Kumar Garg, Plaintiff.

PW-3 Shri Sandeep Kumar

PW-4 Shri Pankaj Kumar

DW-1 Shri Om Parkash

DW-2 Shri Parveen Gupta

DW-3 Shri Ram Pal Sharma

DW-4 Ms Anuradha Sood

DW-5 Shri Deepak Kumar

DW-6 Shri Raj Kumar, (defendant).

DW-7 Shri Gopal Singh

DW-8 Shri K.K. Sharma

And placed on record the following documentary evidence:

Ex.D-1 Agreement for Sale of Land

Ex.DW-2/A Copy of complaint to the Additional Secretary to the Chief Minister

Ex.DW-2/B Copy of complaint to The Principal Secretary to the Chief Minister.

Ex.DW-3/A Copy of Daily Station Diary, Police Station Dharampur, District Solan.

Ex.DW-4/A Copy of Civil Suit No. 94/1 of 2007

Ex.DW-4/B Copy of Order dated 23.4.2007 in Civil Suit No. 94/1 of 2007

And placed on record the following documentary evidence:

Ex.PW-1/A Plaintiffs affidavit.

Ex.PW-2/A Agreement to Sell

Ex.PW-2/B Receipt

Ex.PW-2/C Legal Notice dated 20.4.2007

Ex.PW-2/D-1 & Ex.PW-2/D-2 Postal receipts

Ex.PW-2/D-3 & Ex.PW-2/D-4 RAD envelopes

Ex.PW-2/E Copy of Jamabandi

24. In defence, defendants examined the following witnesses:

Ex.DW-5/A General Power of Attorney

Ex.DW-5/B Cancellation/Revocation of General Power of Attorney

Ex.DW-5/C Copy of complaint to Deputy Commissioner, Solan, District Solan, H.P., alongwith statements.

Ex.DW-5/D Copy of complaint to Honble Chief Minister.

Ex.DW-7/A Copy of Judgment in Sessions Trial No. 1-S/7 of 2009.

Ex.DW-7/B, 7/C & 7/D Per year average charts.

Ex.DW-7/E Legal notice to Shri Ankush Vasishtaa

Ex.DW-7/F Postal receipt

Ex.DW-7/G Counter foil of bank deposit receipt.

Ex.DW-7/H Legal Notice to Shri Ankush Vasishta.

Ex.DW-7/J & 7/K Postal receipts.

Ex.DW-7/L Copy of a letter written to the Manager of Bank of Baroda.

Ex.DW-7/M Postal receipt

Ex.DW-7/N Copy of Jamabandi

Ex.DW-7/O Copy of Jamabandi

25. It is well settled principle of law that unless by way of categorical and unequivocal admission, defendants so admit, the onus to prove its case is on the plaintiff, more so in a case of the present nature and that being Specific Performance of Agreement to Sell.

26. From the documents so filed by the plaintiff, one finds the defendants to be owners of the suit land, i.e. the land allegedly agreed to be sold by them in his favour, vide Agreement to Sell dated 24.8.2006 (Ex.PW-2/A); plaintiff having issued legal notice dated 20.4.2007 (Ex.PW-2/C); such notice having been sent by Registered AD (Ex.D-1 & D-2); Registered ADs returned with the remarks "Recipient was not found at home. Retuned to sender" (Ex.DW-2/D-2 & Ex.DW-2/D-4); and the plaintiffs affidavit of having made himself available on the date of execution of the sale deed (Ex.PW-1/A).

27. Significantly, defendants have categorically denied contents of the Agreement to Sell (Ex.PW-2/A); Legal Notice (Ex.PW-2/C); dispatch of Registered AD letters (Ex.PW-2/D-3 & 2/D-4).

28. Hence, initial onus to prove execution of the agreement would be upon the plaintiff.

29. Now, bare perusal of the agreement (Ex.PW-2/A) reveals that on all the three pages, at least at six places, there are blanks which are filled up in hand. So much so, name of the purchaser, i.e. the plaintiff, is filled in hand, so also the amount of sale consideration and the advance paid for. Even the column with regard to the date of agreement is left blank. Also, Annexure-I forming part of the agreement, referred to in the recital clause (f) is not appended with the same. Thus, prima facie, agreement itself does not inspire confidence.

30. We only remind ourselves about the status and the background of the parties to the lis. Plaintiff is a property broker/shopkeeper/hotel owner and defendants are agriculturists and rustic villagers. The first thing which strikes us is as to why would a person, entering into transaction of huge extent of land, not execute a properly filled up agreement.

31. Before we deal with the ocular evidence of the plaintiff, we may only notice what the defendants had to state in their written statement and deposed in Court. They being owners of agricultural land, had executed Power of Attorney in favour of Ankush Vasishta for sale of 50 bighas of agricultural land for a total consideration of Rs. 3 crores. On 16.1.2007, on the asking of said Ankush Vasishta, they executed certain papers and by mistake copy of one such paper was left behind, which when shown to a neighbour, revealed the fraud. Defendants immediately cancelled the Power of Attorney as also lodged report with the police. Necessary remedial actions were taken. Categorically they have deposed that Ankush Vasishta and plaintiff are property brokers, working together at Dharampur.

32. In this backdrop, let us examine whether plaintiff has been able to establish valid execution of the agreement or not. And for such purpose we need only examine testimonies of the plaintiff (PW-2) and witnesses to the agreement Shri Sandeep Kumar (PW-3) and Shri Pankaj Kumar (PW-4).

33. In his examination-in-chief, plaintiff states that he entered into an agreement with the defendants, who knew him, for purchase of the suit land. He further states that the defendants and the witnesses [Sandeep Kumar and Shri Pankaj Kumar] signed the agreement in his presence, whose signatures he identifies, at Points B1, B2, C1, C2 & D1. Out of total sale consideration of Rs. 48 lakhs, a sum of Rs. 4 lakhs was paid to the defendants. This was at the time of execution of the agreement and the balance sale consideration was to be paid at the time of registration of the sale deed. On 20.4.2007, he got sent a registered Legal Notice (Ex.PW-2/C), assuring his presence on 23.4.2007, in the Office of Sub Registrar, Kasauli for the purposes of registration of sale deed. On the said date, even though he remained present from 10 a.m. to 4 p.m., but defendants did not come. For making payment he carried a sum of Rs. 50 lakhs. Defendants refused to execute the sale deed, for the reason that they were demanding more money as the value of the land had increased. He was and is ready and willing to perform the obligations in terms of agreement to sell and is also possessed of sufficient funds.

34. From the cross-examination part of the testimony of this witness, we find the defence of the defendants to have been somewhat probablized, if not established. He admits to be a businessman and having known Ankush Vasishta, but denies any business relationship of property dealership. He admits proforma of agreement to have been prepared and the one placed on record by the defendants (Ex.D-1) to be similar to agreement to sell (Ex.PW-2/A). He states that agreement was executed in his office at about 4 p.m. and that blank columns were filled by Shri Pankaj Kumar, so also receipt (Ex.PW-2/B) on the back side of first page of the agreement (Ex.PW-2/A) is scribed by Shri Pankaj. He does not remember whether the receipt was dated or not. He admits that with respect to the very same agreement, police had lodged a complaint against him. He admits that prior to the filing of the suit in question, defendants had already filed a suit against him and Ankush Vasishta, which even though, as on the date of recording of the statement, was pending, but neither he nor Ankush Vasishta had filed any written statement.

35. It be noticed that it was more than one year that the plaint came to be instituted.

36. Crucially, he admits that agreement (Ex.D-1) was handed over to defendant Raj Kumar one month prior to the execution of the agreement of sale. But then, this is not his pleaded case. He does not state that copy of the agreement was ever handed over to the defendants or that for more than one month parties had been negotiating execution of agreement (Ex.PW-2/A). What is important is his admission that the property in question stood mortgaged with the State Bank of India, which mortgage was redeemed by making payment of Rs. 7 lakhs. Though he denies that it was Ankush Vasishta who paid a sum of Rs. 8 lakhs for the said purpose, but defendants have proven such fact.

37. Further, we notice that though Sandeep Kumar (PW-3) admits execution of agreement but not that it was scribed in his presence. Only blanks were filled up in his presence. But then, he contradicts the plaintiffs version by deposing that blanks were filled up by Ghan Shyam, brother of plaintiff Raj Kumar. We reiterate the plaintiff to have categorically deposed that "The blank columns in Ext.PW2/A were filled in by Pankaj who was a witness of this agreement. Ext.PW2/B has been scribed by Pankaj. The figure 48 lacs in words as well in the numerical has been written by Shri Pankaj". The contradiction is major and material, rendering the version of the witnesses to be extremely doubtful and their creditworthiness to be impeached. Valid execution of the agreement is thus rendered doubtful, in fact not proven. Well, who is this Ghan Shyam is a mystery. That part, witness (PW-3) does not remember whether the receipt was executed separately or on the same stamp paper. Further, according to this witness, agreement was signed around 4.45 p.m., unlike the version of the plaintiff, who states it was at 4 p.m. Also, he admits that two criminal cases are pending against him in the Courts at Kasauli. He does not categorically deny that in the year 2006, value of the suit land was approximately 5 lakhs per bigha, which in fact matches with the figure indicated by the defendants.

38. Further, when we peruse the testimony of another witness Shri Pankaj (PW-4), we find him to be an employee of the plaintiff and working in his hotel. He does not know whether the agreement was typed or not. But what is material is the contradiction he has brought in the statement of plaintiff and Sandeep Kumar with regard to the place of execution of agreement. According to the plaintiff, agreement was signed in his office (Gas Agency), whereas according to this witness (PW-4), it was so done at the Shivalik Guest House, which is at a distance of 3 kms from the Gas Agency. When we peruse the statement of the plaintiff, we find the Gas Agency to be owned by him and it is from here that he runs his office. Further, this witness contradicts the plaintiff by deposing that blanks were not filled up in his presence. Not only that, he is categorical that all the parties signed the agreement at "around 4 PM", so also receipt was scribed at that time. Now, there is contradiction with regard to the time, place and the persons in whose presence blanks were filled up.

39. Thus, having perused the evidence, documentary and ocular, so led by the plaintiff, we are of the considered view that though contradictory, but self serving testimonies of plaintiffs witnesses cannot be said to be inspiring in confidence.

40. Resultantly, we find the plaintiff not to have established execution of agreement dated 24.8.2006 (Ex.PW-2/A) or a sum of Rs. 4 lakhs advanced as sale consideration in terms thereof.

41. Not only that, when we peruse the testimonies of the defendants witnesses, we find the element of falsehood, illegality and the agreement being prepared falsely for the purpose of filing of the suit, to have been established on record.

42. Defendant Raj Kumar categorically states that he executed a Power of Attorney (Ex.DW-5/A) in favour of Ankush Vasishta for disposing of his 50 bighas of land for a sale consideration of Rs. 3 crores. Allegedly, Ankush and the plaintiff are partners. Well, there is nothing on record to establish such fact. Be that as it may, but the witness does state that Ankush made him sign certain papers. It was at 9-10 p.m., when three persons, i.e. Raj Kumar, Pankaj and Sandeep had come to his house. He was told that papers being executed were for sale of 50 bighas of land. In the meanwhile, there was power failure and as such after obtaining the signatures, these persons left away. But while doing so, by mistake, document (Ex.D-1) was dropped, which next day he showed it to Shri Gopal Singh and learnt about the instant deal. Realizing the fraud perpetuated by these persons, immediately he got the Power of Attorney cancelled and lodged a complaint at Police Station, Dharampur. Also, he sent a copy thereof (Ex.DW-5/B) to the Director General of Police, Himachal Pradesh and Honble the Chief Minister. Neither did he ever execute any agreement with the plaintiff, much less the instant agreement (Ex.PW-2/A), nor did he receive any amount towards the sale consideration. In fact, Ankush deposited a sum of Rs. 8 lakhs in the loan account of his son, which he returned in cash. He got issued notice to Ankush Vasishta (Ex.DW-7/E), indicating the element of fraud and cheating. Also, he filed a Civil Suit (Ex.DW-4/A), both against Ankush Vasishta and the plaintiff. In cross-examination, unrefutedly he clarifies being semi-illiterate, hailing from the family of agriculturists. Though he admits his signatures on Ex. PW-2/A, but denies having executed any such agreement in favour of the plaintiff.

43. The question arising for consideration is as to why would Ankush Vasishta redeem the mortgage by paying a sum of Rs. 8 lakhs. Defendants have established that at the relevant time and place, average price of the land was approximately Rs. 5 lakhs per bigha (Ex.DW-7/B, Ex.DW- 7/C & Ex.DW-7/D). It is not a case of distress sale. Why would a person sell his land at a price far lower than the present market price. It is also not the case of the plaintiff that defendants wanted to sell the land as a large chunk, which factored the sale consideration to be low.

44. We reiterate that we are dealing with the defendants who are agriculturists and rustic villagers. They were not made aware of the terms of the agreement. Only their signatures were obtained on blank papers, that too not by the plaintiff but Ankush Vasishtaa, who, undisputedly is acquainted to the plaintiff. Necessary remedial action was taken by the defendants, both against Ankush Vasishtaa and the plaintiff.

45. Version of defendant Raj Kumar stands corroborated by Gopal Singh (DW-7), according to whom, in the morning of 17.1.2007, defendant Raj Kumar had shown him the agreement paper (Ex.D-1), which led to the discovery of fraud and initiation of appropriate proceedings.

46. The factum of filing of the suit, in which the present plaintiff was proceeded ex-parte, stands established by Civil Ahalmad posted in the office of Civil Judge (Sr. Division), Kasauli, District Solan (DW-4).

47. Factum of the complaints written to the Honble the Chief Minister as also the Police officials, stands proved through the testimonies of Shri Om Parkash (DW-1), Shri Parveen Gupta (DW-2), Shri Ram Pal Sharma (DW-3), Shri Deepak Kumar (DW-5) and Shri K.K. Sharma (DW-8).

48. Thus, in our considered view, defendants have been able to discharge the burden that the agreement was an act of falsehood and a fraudulent act and there being no legal valid enforceable cause of action subsisting in favour of the plaintiff for the suit being decreed. We do not find any reason to interfere with the findings returned by the learned Single Judge.

49. Mr. G.D. Verma, leanred Senior Advocate, relying on the ratio of law laid down by the Apex Court in P.C. Thomas v. P.M. Ismail and others, (2009) 10 SCC 239 , contends that since the agreement to sell (Ex.PW-2/A) stands exhibited, correctness of contents thereof, be presumed with the plaintiff having established his case and discharged the onus with regard to its valid execution. (N.E. Horo v. Smt. Jahanara Jaipal Singh, (1972) 1 SCC 771 ; and Ranvir Singh and another v. Union of India, (2005) 12 SCC 59 ).

50. We are afraid, the decisions do not lay down the principle of law, sought to be so propounded. That apart, in the instant case, with the filing of the written statement, while carrying out admission and denial of the documents and leading ocular evidence, defendants have categorically denied and disputed its contents. As such contention needs to be rejected.

51. In LIC of India and another v. Ram Pal Singh Bisen, (2010) 4 SCC 491 , the Apex Court held that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be so done in accordance with law. (Also: Sait Tarajee Khimchand and others v. Yelamarti Satyam and others, (1972) 4 SCC 562 ; Laxman Tatyaba Kankate & another v. Smt. Taramati Harishchandra Dhatrak, (2010) 7 SCC 717 ; Rakesh Mohindra v. Anita Beri & others, 2015 AIR(SCW) 6271).

52. In fact, on the issue raised by Mr. G.D. Verma, we deem it appropriate to reproduce the following observations made by the Apex Court in Anvar P.V. v. P.K. Basheer and others, (2014) 10 SCC 473 :

"Construction by plaintiff, destruction by defendant. Construction by pleadings, proof by evidence; proof only by relevant and admissible evidence. Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility. These are some of the first principles of evidence. What is the nature and manner of admission of electronic records, is one of the principal issues arising for consideration in this appeal."

53. Further, in R.V.E. Venkatachala Gounder v. Arulmigu Visweswaraswami & V.P. Temple and another, (2003) 8 SCC 752 , the Apex Court has observed as under:

"20. The objections as to admissibility of documents in evidence may be classified into two classes :- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons : firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to here-in-above, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."

"28. Whether a civil or a criminal case, the anvil for testing of "proved", "disproved" and "not proved", as defined in section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be "proved" when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by applicability of the rule, which makes the difference.

"The probative effects of evidence in civil and criminal cases are not however always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. BEST says : There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision : but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required. (BEST, Section 95). While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt." (See Sarkar on Evidence, 15th Edition, pp. 58-59).

In the words of Denning, L.J (Bater v. B, (1950) 2 All ER 458, 459 B-C). "It is true that by our law there is a higher standard of proof in criminal cases then in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability." Agreeing with this statement of law, Hodson, L.J said "Just as in civil cases the balance of probability may be more readily fitted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others." (Hornal v. Neuberger P. Ltd., 1956 (3) All ER 970 at p. 977D)."

54. The law with regard to grant of relief of specific performance is now well settled. Even if plaintiff was able to prove the issues and establish its case, it is not that under all circumstances, suit is to be allowed. Provisions of Section 20 of the Specific Reliefs Act, 1963, are evidently clear. The power is discretionary. If the contract is not equal and fair, though not void, still it can refuse the relief of specific performance. (P.V. Josephs son Mathew v. N. Kuruvilas Son, 1987 (Supp1) SCC 340; Bal Krishna v. Bhagwan Das, (2008) 12 SCC 145 ; Mahammadia Cooperative Building Society Ltd. v. Lakshmi Srinivasa Cooperative Building Society Ltd. and others, (2008) 7 SCC 310 ; and Laxman Tatyaba Kankate & another v. Smt. Taramati Harishchandra Dhatrak, (2010) 7 SCC 717 ).

55. Points No.(iii) & (iv) are answered accordingly. In view of the above, there being no merit in the appeal, same is dismissed. Pending application(s), if any, also stand disposed of.