Abdul Salam and Others vs Jagdish Prasad and Others

Poonam Srivastav, J.—Heard Sri Ashok Nath Tripathi, learned Counsel for the Appellants and Sri A.K. Sand, learned Counsel for the caveator/Respondents.

The instant second appeal arises out of the judgment and order dated 6.2.2003 passed by the Additional Civil Judge (Senior Division), Court No. 8, Meerut, in Original Suit No. 235 of 1992 and also the judgment and order dated 11.2.2008 passed by the Additional District and Sessions Judge, Court No. 10, Meerut, in Civil Appeal No. 37 of 2003 confirming the judgment and order of the trial court.

The Plaintiff Abdul Salam Qureshi was tenant of the Defendant Jagdish Prasad Gupta at the rent of Rs. 35 per month. According to the Plaintiff, his tenancy subsisted till 16.10.1970 and thereafter an agreement was executed between them on 17.10.1970, it was an agreement to sell. The deed was registered and the sale consideration was Rs. 31,000. An amount of Rs. 15,500 was paid at the time of execution of the deed. A suit for specific performance was instituted on the ground that the Defendant Jagdish Prasad Gupta had executed a registered agreement to sale relating to the house in question on 17.10.1970 of his 11/12 share situated in Mohalla Sarai Khair Nagar, at Meerut City, for a consideration of Rs. 31,000. Prior to this, S.C.C. suit was instituted by the Defendant Jagdish Prasad Gupta against the Plaintiff for eviction on the ground of arrears of rent, which was dismissed on 10.9.1993 holding that regular payment of Rs. 232.50 per month by the Plaintiff was towards part performance of the agreement to sale and the amount of Rs. 232.50 per month by the Appellants was an interest at the rate of 1.5% per month on balance sale consideration of Rs. 15,500. Revision filed by the Defendant was allowed on 29.3.1996. The revisional order was challenged by the Appellants in Writ Petition No. 14259 of 1996, which was allowed by this Court.

It was held in the writ petition that balance sale consideration was payable to the Defendant Jagdish Prasad Gupta at the time of execution of the sale deed. It was also contended that period agreed for executing the sale deed was one year, which was subsequently extended on the date 9.10.1971 and thereafter from time to time. Finally, the instant suit for specific performance was instituted, which was dismissed and appeal preferred by the Plaintiff was also dismissed.

Learned Counsel for the Appellants has raised arguments on the following substantial questions of law, which are quoted below:

Whether the courts below were right in not considering the readiness and willingness of the Plaintiff-Appellants?

Whether the courts below were right in not reading agreement to sell dated 17.10.1970 because that was unregistered document ; although that was executed before 1.1.1977?

Whether the courts below were right in not reading the agreement to sell on the ground of being unregistered document in derogation of provisions of Section 92 Proviso (4) of Indian Evidence Act, 1872?

Whether the courts below were right in ignoring the handwriting expert''s opinion given in favour of the Plaintiff-Appellants?

Argument advanced on behalf of the Appellants revolves on the question that findings of the two courts below are absurd and perverse inasmuch as both the Courts failed to place reliance on the agreement to sale dated 17.10.1970.

Learned Counsel for the Appellants has emphatically argued that registration of agreement to sale was made compulsory only after 1.1.1977 and, therefore, circumstances pleaded and evidence brought on record especially evidence of handwriting expert and findings of this Court in writ petition arising out of J.S.C.C. suit was that deed was Thekanama and, therefore, the two Courts were bound to record findings in favour of the Appellants on the basis of agreement to sale. The judgment and order in Writ Petition No. 14259 of 1996 has also been brought on record in the instant appeal alognwith stay application.

Learned Counsel for the Appellants has also laid emphasis that report of the handwriting expert in favour of the Appellants as well as the application moved before the ceiling authority makes it abundantly clear that the Defendant had entered into an agreement to sale after obtaining permission from the ceiling authority. The application from the record of the prescribed authority was summoned during the trial to substantiate the said plea of the Plaintiff. Report of the handwriting expert was adduced by both the parties and both handwriting expert reports were contradictory to each other. The Courts while declining to accepted report of the handwriting expert on behalf of the Plaintiff, refused to place reliance. Specific reasons have been given for doing so and findings have been confirmed in appeal.

Issue No. 4 was in respect of readiness and willingness by the Plaintiffs to get the sale deed executed. According to the agreement, the sale deed was to be executed within a period of one year, which was extended on the request of the Plaintiffs. This fact was admitted by the Plaintiffs. The courts below concluded that the Plaintiffs were liable to establish that after extension of period of one year on 17.10.1972, the suit has been filed in the year 1991 and burden was that of the Plaintiffs to establish that they were always ready to get the sale deed executed. Nothing has been established to substantiate this plea and, therefore, the Courts recorded positive findings of fact against the Plaintiffs in respect of the requirement of Section 16C(c) of Specific Relief Act.

Sri A. K. Sand, learned Counsel for the caveator/Respondents has disputed the arguments advanced on behalf of the Appellants and drawn my attention to the findings of the courts below that documents purporting an agreement to sale in the year 1970, and thereafter extended period on 9.10.1971, from 1972 to 1976 and finally extension of time from 1976 to 1980 has been typed on the same typewriter on the same day. There is no difference in the three signatures of the Plaintiff Abdul Salam Qureshi. The Appellant died in the year 1991 after instituting the suit but signatures are identical in every respect and apparent on the three papers though on different dates, in fact after an interval of few years. The three signatures were apparently made on the same day. There is no difference. Besides, certain letters of the typewriter are identical and there is no difference even in the letter typed in the written argument. This itself is sufficient to establish that the documents are manufactured documents. On the fact of this finding, it is difficult to come to a contrary conclusion. Besides, the Courts have referred to a number of discrepancies in the oral evidence, which did not inspire confidence while rejecting the plea that the parties had entered into an agreement to sell the disputed property.

A number of decisions have been cited by the counsel for the Appellants in support of his arguments that even where the findings recorded by the two Courts concurrently on facts can be established to be perverse and calls for discussion of alternative views. This Court can interfere in exercise of jurisdiction u/s 100, Code of CPC Decisions relied upon by the counsel for the Appellants are ; Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., Hero Vinoth (minor) Vs. Seshammal, P. Chandrasekharan and Others Vs. S. Kanakarajan and Others,

Argument is that whenever this Court while deciding the second appeal is of the view that interpretation of the document, which goes to the root of the title of the parties, has not been appreciated or Courts have ignored to look into construction of certain documents involving principles of law will also constitute substantial questions of law.

Emphasis that Courts had drawn wrong inference from the proved fact is far-fetched argument especially to the facts of the present case. No doubt, this Court while deciding the writ petition arising out of the suit for arrears and eviction held that there was Thekanama executed between the parties. This finding alone or fact that the suit was not decreed for arrears of rent is not sufficient to set aside the two judgments where the Courts have refused to rely and pass a decree of specific performance on the basis of the alleged deed said to be an agreement to sale, it is not proper to record a conclusion that the findings of the courts below is perverse. Besides, the aforesaid findings, the Courts have also given their conclusions on the willingness and readiness especially on the face of the finding that the documents adduced in evidence to support the argument that the period was extended from time to time is on the basis of manufactured document and heavy burden lies on the shoulder of the Plaintiffs, which they have miserably failed to do so. Findings recorded against the Plaintiffs on the question of readiness and willingness are findings of fact and I am not in agreement with the submission made by the counsel for the Appellants.

The Apex Court deprecated the liberal construction and generous application of provisions of Section 100, Code of CPC Hon''ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that cannot be sufficient for interference u/s 100, Code of CPC For ready reference, extract of paragraph No. 7 of the case of Veerayee Ammal Vs. Seeni Ammal, is quoted below:

...... We have noticed with distress that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have been frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur v. Mohani Dasi, AIR p. 1205para 3:

It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned Counsel for the Plaintiff-Respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two Courts of fact.

Similar view has been expressed in a number of other decisions by the Apex Court in the cases of Thiagarajan and Others Vs. Sri Venugopalaswamy B. Koil and Others, Rajeshwari Vs. Puran Indoria, Gurdev Kaur and Ors. v. Kaki and others 2006 All CJ (SC) 1481: 2006 (3) AWC 2373 (SC)and Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others,

The Apex Court in the recent case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., ruled that a point of law which admits of no two opinions may be proposition of law but cannot be a substantial question of law. To be ''substantial'' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. It will, therefore, depend on the facts and circumstances of the each case whether a question of law is substantial one and involved in the case or not? The same view has been expressed by the Apex Court in the case of Govindaraju Vs. Mariamman,

The judgments under challenge cannot be interfered in exercise of jurisdiction u/s 100, Code of CPC The instant second appeal lacks merit and is, accordingly, dismissed.