Smt. Anwari vs Vakil alias Iqbal and Mustafa

Poonam Srivastav, J.—Heard Sri S.D. Kautilya, learned Counsel for the appellant and Sri Anurag Khanna, learned Counsel for the contesting respondent.

This is defendant''s second appeal arising out of suit for specific performance of an agreement to sell. The plaintiffs suit was decreed and the appeal filed by the defendant/appellant was dismissed.

Facts giving rise to the dispute are that an agreement was executed between the plaintiff and defendant on 28.2.1989 for sale of the disputed property. Rs. 9,000/- was paid towards earnest money and period for executing the sale deed was three yea Rs. Subsequent thereon another agreement to sale was executed between the same parties for the same property on 9.8.1989 on the same terms and conditions but money paid at the time of execution of registration of the deed was Rs. 4,000/- The plaintiff claimed to have paid Rs. 37,000/- to the defendant in cash on 1.8.1989 and this fact was also mentioned in the second agreement to sell dated 9.8.1989. Total advanced amount paid was Rs. 50,000/-. The sale deed was not executed within the stipulated period of three years as such the suit was instituted on 24.8.1992, the same was decreed ex parte on 8.12.1998. An application to recall the ex parte decree was moved on 14.12.1998. Execution was stayed subject to the condition that the defendant deposits security within a period of one month. The plaintiff filed an objection to the recall application on 10.12.2004. The appellant, however, failed to deposit security as such interim order was not operative. Regular appeal filed before the District Judge, Muzaffar Nagar, was allowed and remanded to the trial court.

Once again suit was decreed on 24.5.2007. Against which civil appeal No. 64 of 2007 was preferred, which was dismissed.

Learned Counsel for the appellant has raised a number of substantial questions of law, which mainly revolve around payment of Rs. 37,000/- in respect of which there is no receipt and also suit could not be decreed on the basis of subsequent agreement to sale. Reliance has been placed by the Counsel for the appellant on the two decisions; Md. Ziaul Haque Vs. Calcutta Vyaper Pratisthan, Ganesh Shet Vs. Dr. C.S.G.K. Setty and Others, The court below framed as many as 10 issues.

Sri Anurag Khanna, learned Counsel for the contesting respondent has disputed each and every argument advanced on behalf of the appellant and has placed judgment where findings of fact have been recorded that Rs. 50,000/- was paid as earnest money regarding payment of money and also Smt. Anwari has affixed thumb impression, which has not been denied. Pleadings regarding fraud by the plaintiff have also not been accepted by the two courts below.

On perusal of the judgment of the lower appellate court clearly shows that both agreements to sale are held to be proved in accordance with law and also both documents are registered documents. There is an endorsement of the Registrar, therefore, there is a presumption that the documents are genuine and conclusion that agreements to sale were not forged and fictitious documents are concurrent findings.

After hearing counsels for the respective parties, I am of the considered view that suit has been decreed after appraisal of evidence and taking into consideration various documents and assertion made by the respective parties. Findings arrived at are concluded by finding of fact and cannot be interfered in exercise of jurisdiction u/s 100 C.P.C. Substantial questions of law formulated by the Counsel for the appellant in memo of appeal do not arise and are not worth consideration. In fact, when there is an express denial on the part of the defendant/appellant that she has entered into any agreement to sale. It is evident that there was no intention to execute the sale deed and, therefore, on the face of findings that agreements to sale were registered and valid documents. The courts below had no other option but to decree the suit. Besides, I cannot lose sight of the fact that this is an appeal u/s 100 C.P.C. The substantial question of law, raised has to be substantiated and the objective intended after the amendment in CPC will completely lose its significance if the question of law raised is considered in a casual manner.

The Apex Court depreciated the liberal construction and generous application of provisions of Section 100 C.P.C. 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 C.P.C. For ready reference, extract of paragraph No. 7 of the aforesaid citation 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 held AIR 1205 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 Ors. 2006 AC.J. 1481 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 preposition 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, in so far 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 judgment under challenge cannot be interfered. The second appeal lacks merit and is, accordingly, dismissed.

Costs on the parties.