Murlidhar and Others vs Sita Ram and Others

R.S. Chauhan, J.—The appellants-plaintiffs, Murlidhar and Madan Lal, are aggrieved by the judgment and decree dated 20.12.2010, passed by the Civil Judge (S.D.), Shahpura, whereby the learned Magistrate has dismissed the suit for specific performance filed by the appellants-plaintiffs. They are also aggrieved by the judgment and decree dated 17.08.2013, passed by the Additional District Judge, Shahpura, whereby the learned Judge has dismissed their appeal and has confirmed the judgment and decree dated 20.12.2010.

The brief facts of the case are that on 12.6.1984 the respondent-defendant No. 1, Sita Ram, agreed to sell his share falling in the agricultural land bearing khasra Nos. 753/0.01, 754/0.48, 778/0.08, 779/0.08, 782/.0.32, 788/0.26, 789/0.26, total 7 kita, admeasuring 1.58 hectare situated at village Bijaki Bhawari, Ghasipura, Tehsil Shahpura, District Jaipur to the appellants-plaintiffs for a consideration of Rs. 35,000/-. An agreement to sell was executed on certain terms and conditions mentioned therein. It was agreed that whenever the appellants-plaintiffs would request, the sale-deed would be executed. On 25.02.2001 when the mutation was sanctioned in the name of defendant No. 1, the appellants-plaintiffs requested for getting the sale-deed registered. But the respondent-defendant No. 1 refused to do it. Under such circumstances, the appellants-plaintiffs filed the suit for specific performance and for permanent injunction. In order to buttress their suit, the appellants-plaintiffs examined three witness, and submitted three documents. On the other hand, the defendants examined two witnesses, and submitted two documents. Considering the oral and documentary evidence, the learned trial court framed six issues including the issue of relief. Issue No. 4 was with regard to the fact whether the suit has been filed within limitation or not? After going through the oral and documentary evidence, the learned trial court by the judgment and decree dated 20.12.2010 dismissed the suit solely on the ground of limitation. Since the plaintiffs-appellants were aggrieved by the said judgment and decree dated 20.12.2010, they filed a regular first appeal before the learned Judge. However, by the judgment and decree dated 17.08.2013, as mentioned above, the learned Judge dismissed the appeal. Hence this second appeal before this Court.

Mr. M.M. Ranjan, the learned Sr. Counsel for the appellants-plaintiffs, has raised the following contentions before this Court:

"firstly, according to the impugned judgment and decree of the learned trial court, it was for the defendant to prove the fact that the suit was not within the period of limitation. However, since the defendant has failed to prove the said fact, the learned trial court was not justified in dismissing the said suit on the ground of limitation. Secondly, the learned Judge has misread the evidence produced by the appellants-plaintiffs. According to Kishanlal (PW-2), he had clearly stated that he had never met Sitaram Sharma after the parties had entered into an agreement. Therefore, the learned Judge has misread his testimony. Thirdly, that according to Item 54 of Schedule attached with the Limitation Act, 1963, the period of limitation for a suit for specific performance is three years from the date fixed for the performance of the contract, and if no such date is fixed, then from the date when the plaintiff has notice that performance is refused. The agreement to sell did not specify any date. Moreover, according to the plaintiffs-appellants, Sitaram Sharma has never refused to perform. Therefore, according to the learned counsel, the suit is well within the period of limitation. Lastly, that even these facts have not been noticed by the learned first appellate court. Thus, both the judgments need to be interfered with."

Heard the learned counsel for the plaintiffs-appellants and perused the impugned judgments and decree.

Merely because the learned trial court has wrongly recorded that the burden of proof with regard to issue No. 4 shall lie on the defendant, it cannot absolve the appellants-plaintiffs from establishing the fact that the suit is indeed within the plaintiff period of limitation. Afterall, it is a declaration that the makes to the court that the suit being filed by him is within the period of limitation. According to Section 101 of the Evidence Act, a fact asserted by a party has to be proven by the said party and not by the opposite party. Therefore, the burden of proof was upon the plaintiffs to establish that the suit was well within the period of limitation.

It was the case of the appellants-plaintiffs that on 25.10.2001, Sitaram Sharma, the defendant, refused to perform a contract to get the sale-deed registered. Since it was an averment made by the plaintiffs specifying a date of refusal, obviously it was for the plaintiffs to prove this fact. However, the learned trial court while critically analysing the evidence has noted that Madan Lal (PW-1) has clearly admitted in his evidence that the defendant did not refuse to perform the contract on 25.10.2001. In fact the said refusal was made to his brother, Murlidhar. However, Murlidhar has never been produced as a witness, although he would have been the best witness to establish this fact. Kishan Lal (PW-2) also states that no refusal was made to Murlidhar before him. However, subsequently he claimed that refusal was not made on 25.10.2001, but on the date when the land was mutated in the name of Sitaram i.e. 20.12.1991. The learned Judge has therefore concluded that if Kishan Lal (P.W.2) is to be believed that refusal was made on 20.12.1991. Thus, obviously the period of limitation would run from 1991. Yet, the suit was filed in the year 2003. Therefore, the suit has been filed beyond the period of limitation.

The learned trial court has also noticed the fact that although the plaintiffs have come with a case that refusal was made on 25.10.2001, but according to the defendant he was working in a Bank in Gujarat on the said date. In order to buttress this contention, the defendant had produced Ex-D/2 which clearly showed that he was performing his duty on the said date in Gujarat. Therefore, the said document belies the assertion made by the plaintiffs that refusal was made on 25.10.2001. Hence the only evidence that has been produced by the plaintiffs with regard to the refusal relates to 20.12.1991. If the period of limitation is to begin from 20.12.1991, obviously the suit is beyond the period of limitation. Hence the learned trial court was certainly justified in dismissing the suit on the ground of limitation.

Obviously the present second appeal is based on questions of fact. Therefore, no substantial question of law emerges in the present second appeal. It is, indeed, a settled principle of law that a second appeal cannot be entertained only on the questions of fact.

Issues involved in the present case are all questions of fact and there is concurrent finding of facts by both the Courts below. The questions of facts cannot be interfered with by this Court in second appeal under Section 100 CPC.

A three-Judges-Bench of the Hon''ble Supreme Court in Bholaram Vs. Ameerchand, considered the effect of amendment made in Section 100 of the CPC in 1976, and held as under:

"...The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law."

The Hon''ble Supreme Court, in Ramaswamy Kalingaryar Vs. Mathayan Padayachi, , while considering the scope of Section 100 CPC, held as under:

"...Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of S.100, C.P.C., which defines the contours of the power of the High Court in second appeal...."

The Hon''ble Supreme Court in Gurdev Kaur and Others Vs. Kaki and Others, , considered the true import, scope and ambit of Section 100 CPC by referring the Section 100 CPC, before and after amendment of 1976, various declarations of law by Privy Council and Supreme Court, Legislative background in the 54th Report of the Law Commission of India submitted in 1973, Historical perspective, Rational behind permitting second appeal on substantial question of law, and held as under:

"81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention.

In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs."

The Supreme Court in Dinesh Kumar Vs. Yusuf Ali, , held that a second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. The High Court should not entertain a second appeal unless it raises a substantial question of law. It is obligatory on the court to further the clear intendment of the legislature, and not to frustrate it by ignoring the same.

The Supreme Court in Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, , has held that the second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The question of law has to be distinguished from a substantial question of fact.

For the reasons stated above, this Court does not find any merit in this second appeal. It is hereby dismissed.