Mustaq Ahmad and Others vs Smt. Pratima Dutt

Rajesh Tandon, J.—None is present for the appellants. Heard Shri V.D. Bishen, counsel for the respondent.

On 4.4.2008 when the case was listed, I have passed the following order:

List has been revised thrice. Neither anyone is present on behalf of the appellants nor any mention has been made for adjournment. Shri V.D. Bisen is present for the respondent. Stay order has already been lapsed earlier. The ordersheet shows that on 7.3.2008 the case was adjourned on the request of appellants and the case was listed on 19.3.2008 on the request of appellants. Again on the request of the appellants the case was adjourned on 19.3.2008 to 26.3.2008 then 2.4.2008 and the case was fixed for today on request of appellants. Heard Shri V.D. Bishen, counsel for the respondent. Judgment is reserved.

In view of the aforesaid, I have no option except to decide the appeal on merits.

By the present second appeal filed u/s 100 of Code of Civil Procedure, the appellants have prayed for setting aside the judgment & decree dated 1.11.1988 passed by the IIIrd Additional Civil Judge, Dehradun in O.S. No. 199 of 1986 as well as the judgment and decree dated 24.12.1999 passed by the IInd Additional District Judge, Dehradun in Civil Appeal No. 1059 of 1988.

Second appeal was admitted on the following substantial question of law:

Whether the defendant has a right to enter into the agreement with the plaintiff for the sale of the property which has been mortgaged to the bank and at the time of entering the agreement the disputed property was under the lien of the Bank.

Briefly stated, a suit was filed by the plaintiff for specific performance of the agreement to sale dated 10.5.1983. According to the plaint averments, the defendant entered into an agreement to sale of the land khasra No. 457/1 M. area 0.75 acre, khasra No. 458 area 0.49 acre and khasra No. 459 area 0.20 acre, total area 1.43 acres situate at Mehuwala Maufi, Pargana Central Doon, District Dehradun. On the date of aforesaid agreement to sale, the plaintiff has paid a sum of Rs. 10,000/- to the defendant as earnest money and thereafter the defendant has received a further sum of Rs. 20,000/- from time to time from the plaintiff. The defendant has failed to execute the sale deed in pursuance of the said agreement to sale. The plaintiff has send a notice dated 5.9.1985 to the defendant requesting him to complete the sale within 7 days of the notice, but the defendant has failed to comply with the notice, hence the suit has been filed.

The defendant has filed the written statement denying the plaint averments. It has been submitted that the defendant has borrowed a sum of Rs. 3,000/- from the plaintiff. The defendant has again borrowed a sum of Rs. 7,000/- from the plaintiff. The plaintiff has pressed the defendant to execute the sale deed and entered into an agreement to sale dated 10.5.1983. It has been submitted that he has not received any amount in addition to Rs. 10,000/- from the plaintiff. The plaintiff is not entitled for any relief and the suit is liable to be dismissed.

On the pleadings of the parties, the trial court has framed the following issues:

Whether the plaintiff forwarded Rs. 10,000/- as earnest money as loan as mentioned in para 11 of W.S.?

Whether the defendant has received Rs. 32,500/- as alleged in para 2 of the plaint?

Whether the signature of defendants were obtained under misrepresentation as alleged in para 11 and 12 of W.S.?

Whether the defendant executed the agreement dated 10.5.83 as security for repayment of loan as alleged in para 13 of W.S.?

Whether the defendant cannot legally transfer the land on grounds as alleged in para 14 and 18 of W.S.?

Relief?

The plaintiff has examined herself as P.W.1 and Dev Kumar as P.W.2. The defendant has examined himself as D.W.1, Noor Mohammad as D.W.2 and Bashir Ahmad as D.W.3.

The plaintiff has produced original agreement i.e. paper No. 11 A, postal receipt i.e. paper No. 12 A, A.D. i.e. paper No. 14 A, notice i.e. paper No. 13 C and receipts i.e. paper nos. 26 A to 31 A. The defendant has not produced any documentary evidence.

After careful consideration of the evidence available on the record, the trial court has decreed the suit of the plaintiff and passed an order to the following effect:

mijksDr dkj.kksa ls okfnuh dk okn izfroknh ds fo:) lO;; fMdzh fd;k tkrk gS A izfroknh dks ;g funsZ''k fn;k tkrk gS fd og iz''uxr Hkwfe dk cSukek fnukad 10-5-83 ds vuqlkj vuqcU/k ds vuqlkj 30 fnu ds vUnj okfnuh ds gd esa rgjhj o rdyhe djsa vxj izfroknh bl vof/k esa cSukek djus esa vleFkZ jgk rks okfnuh U;k;ky; }kjk iz''uxr Hkwfe dk cSukek djk ldrh gS A izfroknh dks ;g Hkh funsZ''k fn;k tkrk gS fd okfnuh dks 2]500@& Hkh vnk djsa vkSj ;g Hkh Li"V fd;k tkrk gS fd okfnuh ds cSukek djus ds vf/kdkj iz''uxr Hkwfe ij Hkwfe fodkl cSad ds fufgr vf/kdkjksa ds vUrxZr jgsxk A

Aggrieved by the aforesaid judgment and decree passed by the trial court, the defendant went in appeal. The appellate court has confirmed the judgment and decree passed by the trial court and dismissed the suit.

Both the courts below have recorded the concurrent findings of fact considering the fact that the agreement to sale was entered on 10.5.1983.

I have perused the record. DW-2 Noor Mohammad and DW-3 Bashir Ahmad have submitted that their signatures were got on the blank paper. D.W.3 Bashir Ahmad has admitted his signature on receipt paper nos. 26 A to 31 A and thumb expressions of DW.2 Noor Mohammad on paper No. 26 A and 27 A, therefore, it cannot be believed that the aforesaid witnesses have made signatures or thumb impressions on blank papers. Further, the aforesaid receipts reveal that the amount has been paid with regard to sale of land. The plaintiff has categorically proved that the signatures on the agreement paper was read over and the defendant made the signatures on the same. Further since the defendant has admitted his signature on the document in question, there was no occasion to examine the same by any expert. Further, the plaintiff has paid the sale consideration to the defendant and also sent a notice to the defendant for execution of sale deed which shows that the plaintiff was always ready and willing to fulfill his part of contract. So far as the submission of the defendants-appellants that the property in dispute was mortgaged with the Land Development Bank and they were not capable to sell the said land is concerned, I find no force in the said submission because the defendants-appellants have entered into the agreement to sale.

In Ram Kumar v. Sri Virender Singh and Ors. reported in 2006 (2) U.D. 635, it has been observed as under:

Undoubtedly, the defendant Ram Kumar had mortgaged the property to the Bank for taking the loan. Thereafter, as is clear from the record, concealing the fact relating to the mortgage of the property, he entered into agreement of sale with the plaintiff in terms of the impugned agreement of sale. Instead, the defendant sold the property to his kith and kin, defendant No. 3 Ganga Prasad @ Jai Prasad in an attempt to avoid specific performance of agreement of sale in question. Concurrent findings given by the courts below on these facts need not be interfered by this Court. 11. From the perusal of the judgment and decree passed by the trial court and the first appeal court, it is clear that the courts below have considered all the points, raised before them. In the opinion of this Court, only those questions relating to provisions contained in Section 20 of the Specific Relief Act, 1963, are required to be discussed by the courts below which were raised before them for granting or not granting or not granting the relief. After going through the judgment and decree of the lower appellate court, this Court do not find that the decree for specific performance of contract passed by the first appellate court, is in violation of provisions of Section 20 of the Specific Relief Act, 1963.

Both the courts below have recorded the concurrent findings of fact to the following effect:

vihykFkhZx.k dh vksj ls ;g rdZ Hkh fn;k x;k gS fd dfFkr vuqcU/k ds le; dfFkr Hkwfe] Hkwfe fodkl cSad ds Ik{k esa j[kh gqbZ Fkh blfy, vihykFkhZ ml le; mDr Hkwfe dks fodz; djus ds fy, l{ke ugha Fkk A ijUrq fodz; djus dk vuqcU/k Hkh Lo;a vihykFkhZ dh vksj ls gh fd;k x;k gS blfy, mls ;g dgus dh vuqefr ugha nh tk ldrh fd og iz''uxr lEifRr dks fodz; djus gsrq l{ke ugha Fkk ;k iz''uxr lEifRr Hkwfe fodkl cSad ds Ik{k esa ca/kd gksus ds dkj.k fodz; ;ksX; ugha Fkh A vr% vihykFkhZx.k ds bl rdZ esa Hkh dksbZ lkj izrhr ugha gksrk gS A�

In Diwan Chand v. Kuldip Kumar Mehta reported in 2008 (64) AIC 603 (P&H., H.C.), relying upon the judgment of Gobind Ram Vs. Gian Chand, ; K. Narendra Vs. Riviera Apartments (P) Ltd., and Sargunam (Dead) by LR. Vs. Chidambaram and Another, , it has been observed that inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature have not been considered as sufficient grounds to decline the decree for the specific performance of the agreement. The High Court has observed as under:

The argument that the plaintiff is not entitled to a decree for specific performance in view of the comparative hardship suffered by the appellant, is again not tenable. The defendant has denied even the execution of the agreement. There is no pleading in respect of hardship in the written statement. It is for the defendant to plead and prove the circumstance to decline the relief of specific performance in terms of Section 20(2) of the Specific Relief Act, 1963. Though it is well settled that the jurisdiction to grant decree of specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the Court is not arbitrary and is based upon judicial principles. The hardship is a question of fact. The escalation of price of the real estate, reference Gobind Ram Vs. Gian Chand, , inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, Reference K. Narendra Vs. Riviera Apartments (P) Ltd., and Sargunam (Dead) by LR. Vs. Chidambaram and Another, , have not been considered as sufficient grounds to decline the decree for the specific performance of the agreement.

In view of the aforesaid, the substantial question of law involved in the second appeal is decided against the appellant.

In Smt. Kanti Devi and Another Vs. Poshi Ram, , the Court came to the conclusion that the finding thus reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding.

In Thiagarajan and Others Vs. Sri Venugopalaswamy B. Koil and Others, , it has been held that the High Court in its jurisdiction u/s 100 of C.P.C. was not justified in interfering with the findings of fact. The court observed that to say the least the approach of the High Court was not proper. It is the obligation of the Courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. The Apex Court in a catena of decisions held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible.

In the case of Madhavan Nair v. Bhaskar Pillai (2005) 10 SCC 553, the Apex Court has observed that the High Court was not justified in interfering with the concurrent findings of fact. The Apex Court has observed that it is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.

In the case of Harjeet Singh v. Amrik Singh (2005) 12 SCC 270, the Apex Court has held that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court.

In H.P. Pyarejan v. Dasappa AIR 2006 SCW 715, the Apex Court has observed as under:

Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with findings of fact by the High Court is not warranted if it involves re-appreciation of evidence.

In Commissioner Hindu Religious and Charitable Endowment Vs. P. Shanmugama and Others, , it has been held under:

In our view, High Court has no jurisdiction in the second appeal to interfere with the finding of facts recorded by the first appellate court after careful consideration of the evidence, oral and documentary, on record. It was not open to the High Court to reverse the findings of fact as it has done.

In view of the aforesaid, I find no merit in the second appeal. Second appeal, therefore, lacks merit and is liable to be dismissed.

Consequently, second appeal is dismissed with costs.