AI Structured Summary
Not yet generated for this judgment
Judgment
Tarlok Singh Chauhan, J.—The plaintiff is the appellant and has come up in appeal against concurrent findings recorded against him by the learned Courts below.
The facts, in brief, are that the plaintiff/appellant filed a suit for specific performance of contract/agreement dated 1.7.1993 directing the respondents/defendants to execute and register sale deed in favour of the plaintiff with respect to the land comprised in old Khata/Khatauni No. 17/82, new Khata No. 22/27, Khasra No. 137, 138 and 139 measuring 29.16 bighas situated at village Khajurna, Mauja Tehsil Nahan, District Sirmaur, H.P. with a decree for permanent injunction restraining the defendants from interfering in the suit land and also from alienating, encumbering or changing the suit land in any manner.
It is averred by the plaintiff that Vijender Singh S/o. Sh. Veer Bhaskar Singh entered into an agreement of sale with the plaintiff on 1.7.1993 at Nahan with respect to the suit land for a consideration of Rs. 36,000/-. Out of which, amount of Rs. 10,000/- was paid to the plaintiff by Vijender Singh as part payment and rest of the amount of Rs. 26,000/- was to be paid at the time of execution/registration of the sale deed. The possession of the suit land was delivered to the plaintiff and plaintiff is in possession of the suit land since 1.7.1993. The sale deed could not be executed by Vijender Singh due to civil litigation pending between Vijender Singh and present defendants and their mother. Vijender Singh always remained ready to get the sale deed registered in favour of the plaintiff, but the same could not be done for said reason. Vijender Singh suddenly died on 29.5.2005 and his estate including the suit land was inherited by the defendants being son and daughter respectively of one Sh. Birender Singh, who was pre-deceased brother of Vijender Singh. Now the defendants have stepped into the shoes of the deceased Vijender Singh. The agreement was duly acknowledged by Smt. Shanti Devi, the mother of Vijender Singh. The agreement dated 1.7.1993 is legally valid upto the extent of 2/3rd share in the suit land against the defendants. Again in the alternative even if the agreement of sale deed is held not to be legally enforceable against 1/3rd of Smt. Shanti Devi, still Vijender Singh had become co-owner in possession of the suit land after the death to the extent of 1/2 share in the suit land. The mutation of inheritance was attested on 31.10.2005 during the pendency of the present lis. The plaintiff had issued a notice dated 4.8.2005 to the defendants through his counsel. The defendants replied the said notice through their counsel, whereby showed their intention not to act upon the agreement in question dated 1.7.1993. Hence, the suit was filed by the plaintiff.
The respondents/defendants contested the suit of the plaintiff by filing written statement in which the case of the defendants No. 1 and 2 was based upon the facts that late Sh. Vijender Singh never entered into any agreement of sale with plaintiff on 1.7.1993 at Nahan with respect of the suit land. The suit land has always been in the exclusive possession of the defendants and their mother Smt. Usha Thakur as owners. No payment of Rs. 10,000/- was paid by the plaintiff to the vendor. Vijender never delivered possession of the suit land or any part thereof to the plaintiff. The plaintiff was a party in Civil Suit No. 38/1 of 1991/1990 as well as in Civil Appeal No. 08-CA/13 of 1998 decided on 31.12.1997 and 7.5.1999 respectively. In the said litigation, the Will dated 18.1.1989 alleged to have been executed by late Sh. Veer Bhaskar Singh was not a valid one. At that time, the plaintiff had knowledge that Vijender Singh could not perform his part on the contract. In other words, there was complete refusal of the performance of the alleged contract. The plaintiff had never issued any notice of demand to late Sh. Vijender Singh. After the death of Vijender Singh, the present suit had been filed on the basis of collusive, fraudulent and sham document. The present suit has been filed by the plaintiff just to grab the suit land. There is no cause of action in favour of the plaintiff.
The plaintiff filed replication to the written statement filed by the defendants and the averments as contained in the suit were reiterated.
On 14.6.2006 the learned trial Court framed the following issues:
"1. Whether late Shri Vijender Singh entered into an agreement of sale with the plaintiff on 01.07.1993 at Nahan in respect of suit land measuring 29-16 bighas for a consideration of Rs. 36,000/- as alleged?
...OPP
Whether an amount of Rs. 10,000/- was paid by the plaintiff to the vendor Sh. Vijender Singh, as part payment towards the sale consideration under the agreement of sale dated 01.07.1993 and the same was acknowledged by the vendor?
... OPP
Whether vendor late Shri Vijender Singh after receipt of Rs. 10,000/- as part payment of sale consideration delivered the possession of suit land to the plaintiff on 01.07.1993 and the plaintiff has been coming in possession of suit land since 01.07.1993?
...OPP
Whether vendor late Shri Vijender Singh could not execute the sale deed because of civil litigation which was pending in between the vendor and the contesting defendants and their mother, as alleged?
...OPP
Whether the plaintiff has always been and still ready to perform his part of the contract?
... OPP
Whether the defendants have refused to perform their part of the contract, as alleged?
....OPD
Whether the cause of action has arisen in favour of the plaintiff on 01.07.1993 and on 21.08.2005, as alleged?
... OPD
Whether the document dated 01.07.1993 is collusive, fraudulent and a sham transaction, as alleged?
....OPD
Whether the vendor late Shri Vijender Singh inherited the suit land on the basis of last will of his late father Vir Bhaskar Singh, allegedly executed on 18.01.1989, as alleged?
....OPD
Whether in civil suit No. 38/1 of 1991/90 decided on 31.12.1997 titled Usha Thakur v. Shanta Rani etc. in which the plaintiff was also arrayed as defendant No. 3, the Ld. Senior Sub Judge, Nahan held the WILL dated 18.01.1989 (exhibited DA), not a valid Will?
....OPD
Whether the findings of ld. Senior Sub Judge, Nahan, were upheld by the Ld. District Judge, Sirmaur at Nahan in C. Appeal No. 8/CA/13 of 1998 decided on 07.05.1999, that the decision of ld. Senior Sub Judge, Nahan dated 31.12.1997 by which the will dated 18.01.1989 was declared to be invalid, was correct? If so its effect?
....OPD
Whether in view of the judgment of ld. Senior Sub Judge dated 31.12.1997 and 07.05.1999 passed by ld. District Judge, Nahan the alleged oral agreement of sale or memorandum of original agreement of sale became non-est and the plaintiff is debarred for seeking the relief of specific performance of a void and unenforceable contract in law against the defendants?
...OPD
Whether the plaintiff has no cause of action at all to file the present suit against the defendants, who are legal heirs of late Shri Vijender Singh qua his share, as alleged?
...OPD
Whether the suit of the plaintiff is time barred as alleged?
..OPD
Whether the defendants and their mother Smt. Thakur have always been and are in exclusive and established possession of suit land, as alleged?
....OPD
Whether the suit is liable to be dismissed for non-impleading necessary party Smt. Usha Thakur, as alleged?
...OPD
Whether the plaintiff is not entitled to any injunction as claimed in the suit, on the grounds taken in the written statement by the defendants?
... OPD
Whether the suit is not legally maintainable for non-compliance of mandatory provisions of law, as alleged?
....OPD
Relief."
The learned trial Court vide judgment and decree dated 31.10.2011 dismissed the suit of the plaintiff. Aggrieved by the judgment and decree passed by the learned trial Court, the plaintiff/appellant filed an appeal before the learned lower Appellate Court, who too vide judgment and decree dated 30.7.2013 has been pleased to dismiss the same.
Aggrieved by the judgments and decrees passed by the learned Courts below, the appellant/plaintiff is before this Court by way of present regular second appeal.
I have heard learned counsel for the parties and have also gone through the records carefully.
The learned Courts below have concurrently found that the agreement dated 1.7.1993 had not been proved on record as Vijender Singh S/o. Sh. Veer Bhaskar Singh had not executed the agreement of sale nor received any earnest money. During the life time of Vijender Singh, the plaintiff had not produced the alleged agreement in question for enforcing the agreement against Vijender Singh. It has also been observed that in the earlier litigation, the plaintiff was a party which though related to the Will of Veer Bhaskar Singh, however, nothing prevented the plaintiff from producing the alleged agreement. It was further concurrently held that there was no evidence on the file to show that the suit land was handed over to the plaintiff as per the contents of the agreement Ex. PW-1/A. Since the execution of the agreement and the Will in question itself had not been established on record, the learned Courts below have rightly concluded that there was no question of the plaintiff being ready and willing to perform his part of the contract.
The findings recorded by the learned Courts below are pure findings of fact and the same cannot be interfered with, more particularly, when the said findings cannot be said to be perverse, based on misreading either the pleadings or misconstruction, misinterpretation of the evidence led in support thereof or in any manner contrary to law. After the amendment in Section 100 of the Code of Civil Procedure, the language used in the amended section specifically incorporates the words as ''substantial question of law'' which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that the legislature never wanted second appeal to become ''third trial on facts'' or ''one more dice in the gamble'' Gurdev Kaur and Others Vs. Kaki and Others, .
The law on the subject has been succinctly stated in Smt. Nathan and Another Vs. Nokhu Ram, , wherein it has been held as under:--
"23. So far jurisdiction of this Court in appeal under Section 100, CPC is concerned, the matter was set at rest long ago, as far back as in 1963 by three-Judge Bench in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, , wherein while allowing the appeal it was held as under:
"Held that the High Court was not Justified in interfering with the finding of fact recorded by the lower appellate Court merely because the judgment of the lower appellate Court was not as elaborate as that of the trial Judge, or because some of the reason given by the trial Judge had not been expressly reversed by the lower appellate Court. The findings of the lower appellate Court could not be said to be perverse or not supported by any evidence."
Again while dealing with Section 100 of the CPC another three-Judge Bench of Supreme Court in Mst. Kharbuja Kuer Vs. Jangbahadur Rai, , was of the view, that concurrent findings of fact that there was partition and separation in the joint family and those being based on evidence and such finding having direct impact on main question to be decided in the case were findings of fact based on evidence is thus binding in the second appeal.
In Sri Babu Ram Alias Durga Prasad Vs. Sri Indra Pal Singh (Dead) by Lrs., while dealing with Section 100, CPC it was held as under at Page 3026 of AIR:
"14. In our view, the High Court, while holding that the sale deed dated 15-9-1964 was traceable to a new agreement erred seriously in making out of a new case for which there was neither any issue nor evidence. In fact, the defendant specifically admitted in his evidence as D.W.-1 that there was no fresh agreement between the Official Receiver and the defendant at or before the execution of the sale deed dated 15-9-1964. The defendant, no doubt, came forward with such a statement to negative any fresh agreement of reconveyance entered into by and between the Official Receiver and the defendant. But that evidence equally negatives the theory that the sale deed dated 15-9-1964 was executed pursuant to a fresh or new agreement entered into between the Official Receiver and the defendant. The recitals in the sale deed do not support such a contention. Further, the sale by the Official Receiver was one made pursuant to the Court order dated 21-11-1963 and was not a sale in exercise of his normal powers to sell the insolvent''s property nor was it a sale for distributing the sale proceeds to the creditors. No doubt; the Court''s order permitted the "Interim Receiver" to sell but in view of the subsequent adjudication of the debtor as an insolvent on 29-5-1964, the sale deed had to be executed by the Official Receiver. A reading of the sale deed dated 15-7-1964 which is in Hindi and was read out in Court showed that it was executed in pursuance of the agreement between the creditor and the "insolvent, second party". The sale deed did not refer to any agreement with the "Official Receiver" who was one of the executants of the sale deed. It referred only to the agreement with the "insolvent, second party", which, in our opinion could only be the one entered into on 19-11-1963 between the plaintiff and the defendant before adjudication.
Novation under Section 62 of the Contract Act requires a clear plea, issue and evidence. Such a question cannot be raised or accepted under Section 100, CPC for the first time in second appeal. There was no such issue in the Courts below and the defendant''s evidence was contrary to such a theory.
The High Court, in our view, also erred in thinking that the plaintiff committed breach of the agreement dated 19-11-1963 covered by the joint application when the said aspect covered by Issue 2 was not pressed in the trial Court. Further, the permission for sale dated 22-11-1963 granted by the Court was in favour of the "Interim Receiver" and, therefore, the debtor could not have executed any sale deed. (We are not on the question whether the Insolvency Court could have asked the Interim Receiver to sell the Property.). The defendant admitted in his evidence that after 19-11-1963, he did not issue any notice to the plaintiff to execute a sale deed nor did he move the Insolvency Court to direct the debtor to execute the sale deed.
For the above reasons, we hold that the High Court in second appeal exceeded its jurisdiction under Section 100, CPC in giving a finding on an issue which was not pressed in the trial Court. So far as the finding as to a new contract is concerned, there was no issue or evidence. The evidence was to the contrary. We accordingly set aside these findings. Point 1 is, therefore, held in favour of the plaintiff and against the defendant."
To similar effect are the decisions in cases of Smt. Satya Gupta Alias Madhu Gupta Vs. Brijesh Kumar, ; Sheel Chand Vs. Prakash Chand, and Ram Prasad Rajak Vs. Nand Kumar and BOrs. and Another, .
Again while dealing with the scope of Section 100, CPC after its amendment in the year 1976 in Ellangallur and Others Vs. Gopalan and Others, , it was held as under at page 534 of AIR:
"4. The learned counsel for the respondents submitted that the decision of the Kerala High Court in C.P. Madhavan Nair case does not lay down the correct law and also does not take notice of a Full Bench decision by the High Court of Punjab and Haryana in Ganpat Vs. Ram Devi and Others, , taking the view that in spite of amendment in Section 100, CPC, the local law containing a provision inconsistent with Section 100, CPC shall continue to remain in operation.
In our opinion, the plea which is sought to be raised on behalf of the respondents before us was not raised before the High Court and, therefore, it will be appropriate if the matter is remitted back to the High Court leaving it open to the parties to raise their respective contentions before the High Court and the High Court forming and expressing its opinion on the effect of amendment in Section 100, CPC introduced by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976) on the pre-existing Section 100(1)(d) as applicable in the State of Kerala in view of local amendment."
In Thimmaiah and Others Vs. Ningamma and Another, while dealing with scope of Section 100, CPC it was held as under at Pages 3532-3533 of AIR:
"15. We have already noted the findings of the trial Court as well as the first appellate Court on the question of consent. These observations clearly show that there was some evidence in support of the findings of the lower Courts. In the circumstances, the High Court was not entitled to reassess the evidence and arrive at a different conclusion. Besides, the onus was on the respondents to prove the fact of Appellant 1''s consent. When Items 3 to 6 were being claimed by the respondents to be the self-acquired property of Hiri, it could hardly be contended in the same breath that Appellant 1 had consented to the gift of Items 3 to 6 on the basis that it was coparcenary property and Appellant 1 the only other coparcener.
The High Court also erred in its view on the effect of consent on a gift which may otherwise be void. This Court in Ammathayee v. Kumaresan summarised the Hindu law on the question of gifts of ancestral properties in the following words : "Hindu law on the question of gifts of ancestral property is well settled. So far as moveable ancestral property is concerned, a gift out of affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits. A gift for example of the whole or almost the whole of the ancestral moveable property cannot be upheld as a gift through affection : (see Mulla''s Hindu Law, 13th Edn., P. 252, Para 225). But so far as immovable ancestral property is concerned, the power of gift is much more circumscribed than in the case of movable ancestral property. A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for ''pious purposes'' : (see-Mulla''s Hindu Law, 13th Edn. Para 226, P. 252). Now what is generally understood by ''pious purposes'' is gift for charitable and/or religious purposes. But this Court has extended the meaning of ''pious purposes'' to cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of her marriage, and the same can also be done by the mother in case the father is dead : (See Kamala Devi Vs. Bachu Lal Gupta, .
The karta is competent or has the power to dispose of coparcenary property only if (a) the disposition is of a reasonable portion of the coparcenary property, and (b) the disposition is for a recognised "pious purpose". The High Court has not come to any conclusion as to whether the gift of Items 3 to 6 by Hiri to Respondent No. 2 was within reasonable limits or in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of Respondent 2''s marriage. It must be taken, therefore, that the findings of the lower Courts on both counts were accepted. That being so, Hiri could not have donated Items 3 to 6 to Respondent 2 and the deed of gift dated 9-6-1971 was impermissible under. Hindu Law. The question is --could such alienation be made with the consent of Appellant 1?"
Keeping in view the evidence on the file of this case it cannot be said that the findings regarding the documents having been proved in accordance with law can be said to be either perverse or based on no evidence so as to call for interference in this appeal. Unless such a situation is there, this Court would not interfere. While setting aside the judgment in case Hamida and Others Vs. Md. Kahlil, it was held as under at page 2283:
"6. The High Court has upset the finding of fact recorded by the first appellate Court, taking a different view merely on re-appreciation of evidence in the absence of valid and acceptable reasons to say that the findings recorded by the first appellate Court could not be sustained either they being perverse or unreasonable or could not be supported by any evidence. The High Court neither framed a substantial question of law nor any such question is indicated in the impugned judgment as required under Section 100 of the Code of Civil Procedure. The approach of the High Court, in our view, is clearly and manifestly erroneous and unsustainable in law. Para 10 of the impugned judgment reads:--
"The appellate Court although has decided the issue of personal necessity but from the judgment it appears that the appellate Court has not decided this issue in its correct perspective. Since the trial Court has not recorded any finding on the issue of personal necessity, the finding recorded by the appellate Court cannot be said to a concurrent finding of fact. I am, therefore, of the definite view that in such circumstance, this Court can reappreciate the evidence and scrutinize the findings recorded by the appellate Court under Section 100 CPC when admittedly this issue was not decided by the trial Court.
......................................................................
The sons of the plaintiff for whose requirement the plaintiff sought eviction, have not been examined. The nephew of the plaintiff was examined as a witness who supported the case of the plaintiff. The plaintiff has also not led any evidence to the effect that the house property where the plaintiff resides, is not sufficient for their own use and occupation. There is also no evidence to the effect that suitable alternative accommodation is not available to the plaintiff for meeting the requirement. I am, therefore of the view that the finding recorded by the appellate Court on the issue of personal necessity cannot be sustained in law for want of sufficient evidence."
As can be seen from the para extracted above, the High Court thought that it could re-appreciate the evidence and scrutinize the findings recorded by the first appellate Court under Section 100 CPC. This approach is plainly erroneous and against law. The High Court was also wrong in saying that the plaintiff did not lead sufficient evidence to establish his bona fide requirement. As observed by the first appellate Court and noted above already, there is evidence of the plaintiff, his nephew and the neighbour. The finding of fact recorded by the first appellate Court based on evidence could not be interfered with by the High Court, that too in the absence of any substantial question of law that arose for consideration between the parties."
Applying the tests laid down by this Court in the above case which have been noted to illustrate the constant view of the Hon''ble Supreme Court, it is clear that there is no merit in this appeal as the findings recorded by the learned Courts below are pure findings of fact which cannot be interfered with by this Court in exercise of its power under Section 100 of the Code of Civil Procedure. Moreover, the findings recorded by the learned Courts below are not based on any misconception of fact or law or misinterpretation of documentary evidence or on construction of inadmissible evidence or ignorance of material facts so as to call for interference by this Court.
Accordingly, I find no merit in the appeal and the same is dismissed, so also the pending application, if any, leaving the parties to bear their own costs.