AI Structured Summary
Not yet generated for this judgment
Judgment
V. Nath, J.—Heard the learned counsel appearing on behalf of the appellants and also the learned counsel appearing on behalf of the respondents.
The plaintiffs have filed the suit for declaration of title on the basis of the sale deed dated 23-6-1978. It is the case of the plaintiffs that the defendant no.1 negotiated with the plaintiffs for sale of the suit land to them for consideration of Rs. 9975/- and it was agreed that Rs.800/- would be paid at the time of negotiation and Rs.2700/- would be paid at the time of execution of the sale deed and the balance amount of Rs. 6475/- would be paid to the defendant no.1 by the plaintiffs after registration of the sale deed and at the time of handing over the registration receipt to the plaintiffs. The plaintiffs have also stated that the suit land was already mortgaged to Basisth Mishra, Kamla Mishra and Dasrath Mishra for Rs. 3500/- and they were in possession. It is the further case of the plaintiffs that they paid Rs.800/- and further Rs.2700/- and got the sale deed registered. The plaintiffs paid the balance consideration money also to the defendant no.1 on the promise that he would hand over the registration receipt, as agreed to them on the pretext that the same was misplaced, but later the defendant no.1 refused to hand over the registration receipt on the ground that the consideration amount had not been paid to him and he had already cancelled the sale deed.
The case of the defendant no.1 is that the plaintiffs had not paid any money to him out of the total consideration money, and so the sale deed was cancelled. It is the case of the defendant no.1 that though the suit land was mortgaged, but the mortgage stood automatically redeemed in view of the provision of section 12 of the Bihar Money Lenders Act. It is the further case of the defendant no.1 that the plaintiffs were not ever ready to pay the mortgage money to the mortgagees and get the possession of the land. Thus, in substance the defendant no.1 denied payment of any part of the consideration money and claimed to have cancelled the sale deed on that ground.
The suit was also contested by defendant no.2, who was one of the mortgagees and was impleaded as intervener-defendant in the suit. According to him, he was in possession of the suit land as mortgagee under an anomalous mortgage and therefore the mortgage subsisted and not redeemed u/s 12 of the Money Lenders Act. It is the further case of the defendant no.2 that he filed T.S.No. 138 of 1979 against the defendant no.1 and had obtained an ex-parte decree against him and has been continuing in possession over the suit land.
In view of the rival cases of the parties, the trial court framed issues including the issue of the legality and validity of the sale deed and also the issue as to whether the mortgage with the intervener-defendant no.2 was subsisting. After considering the evidence of the parties, the trial court came to the finding that the plaintiffs had paid the amount of Rs.800/- and Rs.2700/- to the defendant no.1, and only Rs.6475/- remained to be paid to the defendant no.1 by way of consideration money. It was further held that the title had already passed to the plaintiffs after execution and registration of the sale deed by the defendant no.1 for the suit land and the defendant no.1 was entitled to the recovery of the balance amount of Rs.6475/-The trial court, however, further concluded that the mortgage of the suit land with the defendant no.2 was still subsisting and would have to be redeemed by the person who held title over the suit land. On the basis of these findings the suit was decreed in part.
The plaintiffs filed appeal and the appellate court, after hearing the rival submissions of the parties and considering the evidence on record, came to the finding that the decision by the trial court with regard to the subsistence of the mortgage was outside the scope of the suit, as the suit was not filed seeking any relief with regard to the mortgage. It was further held that there was no scope for declaring the defendant no.1 to be entitled to recover the balance consideration money of Rs.6475/- from the plaintiffs and consequently the findings of the trial court on both the issues were set aside and the appeal was allowed decreeing the suit in full.
The defendant no.1 filed the second appeal and by order dated 9-1-1989 the following substantial question of law was framed at the time of admission of the appeal:
Whether the learned lower appellate court misdirected itself in passing the impugned judgment, reversing that of the trial court without considering the oral evidences on the record?
The learned counsel appearing on behalf of the appellants has submitted that the appellate court below has misconceived the nature and scope of the suit and has wrongly allowed the appeal setting aside the findings in favour of defendant no.1. It has been contended that the passing of the title to the plaintiffs on the basis of the sale deed in question and payment of consideration money, were very much in issue between the parties, and thus the trial court committed no illegality in determining the said issue and holding the defendant no.1 to be entitled to receive the balance consideration money from the plaintiffs. It has also been submitted by the learned counsel that equitable relief should always be granted and for the ends of justice the direction for payment of balance consideration money should have been upheld by the appellate court below.
Per contra, the learned counsel appearing on behalf of the respondents has supported the impugned judgment of the appellate court below and has submitted that the question regarding the subsistence of the mortgage or its redemption was essentially a question between the defendant no.1(mortgagor) and the defendant no.2(mortgagee), which was still to be decided between them and the said question was clearly beyond the scope of the present suit. It has been further submitted that the defendant no.1 had not raised any claim for realization of the balance consideration money against the plaintiffs even after giving registered notice to the plaintiffs for the same, and as such the defendant no.1 could not been granted the relief, which he never prayed. The learned counsel also pointed out that there was no cross-appeal by the defendant no.1 or the defendant no.2 against the finding that the title over the suit land had passed to the plaintiffs on the execution of the sale deed, and as such the appellate court below has committed no illegality in setting aside these two findings which were in favour of the defendant no.1 and defendant no.2.
After hearing the submissions of the learned counsels for the parties and perusing the judgments of the courts below, it is manifest that the suit was filed by the plaintiffs for declaration of their title over the suit land on the basis of the sale deed dated 23-6-1978 executed by defendant no.1. It has been held by the trial court that the title over the suit land had passed to the plaintiffs on the execution of the sale deed, and the payment of consideration money was not a condition precedent for passing of the title. In absence of an appeal or cross-appeal by the defendants, this finding has now attained finality. Though the defendant no.2 was allowed to intervene in the suit, but his status was only of a mortgagee of the suit land, which the plaintiffs also admitted in the plaint. But, it does not appear that after the addition of the defendant no.2 as party to the suit, the plaint was amended and any relief with regard to the mortgage had also been added by the plaintiffs. It also does not appear that the defendant no.1 preferred any counter-claim with regard to the recovery of balance consideration money from the plaintiffs. From the judgment of the trial court, it also appears that the plaintiffs maintained that there was no claim for recovery of possession by them in the suit. In view of these facts, the appellate court below appears to have committed no illegality in holding that the declaration with regard to the subsistence of the mortgage with defendant no.2 and further the declaration with regard to the entitlement of the defendant no.1 for recovery of the balance consideration money, were clearly alien to the scope of the suit. As such, there was no need for the appellate court below to consider the oral evidence on record for reversing the findings and the declaration in favour of the defendant nos. 1 and 2 by the trial court. The appellate court has simply examined the scope of the suit on the basis of the pleadings of the parties, and for this purpose consideration of oral evidence was not at all necessary. The learned counsel appearing on behalf of the appellants also could not point out the relevance of the oral evidence and its impact upon the conclusions reached by the appellate court below. As such, the substantial question of law, as framed in this appeal, is answered against the appellants.
The learned counsel appearing on behalf of the appellants has also submitted that in the facts and circumstances of the case the equitable relief should be granted to the appellants and the direction of the trial court for recovery of the balance amount of consideration should be upheld. From the judgment of the appellate court below, it does not appear that such prayer was ever made by the defendant no.1. The jurisdiction of the Court hearing a Second Appeal is circumscribed by the provision of section 100 C.P.C., and the Court has no power to enlarge the scope of the grounds mentioned in the statutory provision for entertaining a Second Appeal. The Apex Court in the matter of Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board and Others, has observed that a Second Appeal cannot be decided merely on equitable ground, as it lies only on the substantial question of law, which is something distinct from substantial question of fact, and the Court cannot entertain a Second Appeal unless a substantial question of law is involved. From the facts also, it appears that the defendant no.1 was fully aware of the points raised in the appellate court below, but still he did not take any steps and make any appropriate prayer before the Court. In the memo of appeal also, no such ground has been raised by the appellants. It is, therefore, held that the appellants cannot be granted any equitable relief in this Second Appeal.
For the foregoing reasons and discussions, this Second Appeal is dismissed.