Virendra Kumar Singh vs Indrajeet Singh Bedi And Ors

Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellant/plaintiff under Section 100 of the

CPC against the impugned judgment and decree passed by the first appellate Court affirming the judgment and decree by which the trial Court

dismissed the suit of the plaintiff for specific performance of contract and permanent injunction.

Mrs. Hamida Siddiqui, learned counsel for the appellant/plaintiff would submit that both the Courts below have concurrently erred in not granting

decree for specific performance of the contract as well as for permanent injunction in favour of the plaintiff as the oral evidence has not been

appreciated in proper perspective and also the fact that plaintiff is in possession of the suit property for a fairly long time has not been considered and

incorrect finding has been arrived at to dismiss the suit, as such, the second appeal deserves to be admitted by formulating substantial question of law.

She relies upon the decision rendered by the Supreme Court in Santosh Hazari v. Purushottam Tiwari (deceased) by LRs. (2001) 3 SCC 179.

Sole plaintiff â€" Virendra Kumar Singh filed a suit for specific performance of contract and permanent injunction upon the suit property bearing

Khasra No. 1043/1 area 0.287 hectare stating that he has entered into agreement to sale with defendant No. 2 on 19/03/1963 vide Ex. C/1 for a cash

consideration of Rs. 100 and since then, he has been in possession of the suit property, but thereafter, defendant No. 2 sold the suit property to

defendant No. 1 on 22/06/1979 and defendant No. 1 got his name mutated in the revenue records to which defendant No. 1 refuted by filing written

statement and stating that he has purchased the suit property from defendant No. 2 and his brother and mother on 26/02/1979 for a cash consideration

of Rs. 700 and defendant No. 2 has never sold the suit property to the plaintiff, as such, he is not entitled for possession of the suit property and his

suit deserves to be dismissed.

Learned trial Court, upon appreciation of oral and documentary evidence on record, negatived the agreement to sale by defendant No. 1 in favour

of the plaintiff vide Ex. C/1 and also held that plaintiff is not in possession of the suit property and ultimately, dismissed the suit by holding that it is

barred by limitation which the first appellate Court also affirmed in the appeal preferred by the plaintiff under Section 96 of the CPC.

Both the Courts have clearly held that the agreement to sale (Ex. C/1) dated 19/03/1963 executed by defendant No. 2 in favour of the plaintiff is

not established and possession of plaintiff over the suit land has also not been found established and the suit is apparently hopelessly barred by

limitation as the agreement to sale is dated 19/03/1963 whereas plaintiff filed the suit on 30/05/1995.

The said finding recorded by both the Courts below holding plaintiff's suit to be barred by limitation is a finding of fact based on evidence available

on record which is neither perverse nor contrary to the record. Likewise, the finding with regard to agreement to sale (Ex. C/1) not having been

established also does not suffer from any perversity and similarly, both the Courts below have clearly held that plaintiff is not in possession of the suit

property which is also a pure finding of fact that does not suffer from any perversity or illegality warranting interference under Section 100 of the

CPC, much less framing of any substantial question of law is required for determination.

The second appeal, being devoid of merits, deserves to be and is accordingly dismissed in limine without notice to the other side. No cost(s).