BAI CHANCHAL v. DARJI SHANKERLAL SHANALAL — 1993 DIGILAW 328 (GUJ)

A. N. DIVECHA, J. ( 1 ) THE decision rendered by the learned Assistant Judge of ahmedabad (Rural) at Narol on 14/12/1976 in Regular Civil Appeal no. 84 of 1973 is under challenge in this appeal at the instance of the original plaintiffs in Regular Civil Suit No. 52 of 1971. By the appellate decision under challenge in this appeal, the lower appellate Court accepted the appeal of the original respondents against the decision of the learned Civil Judge (J. D.) at Dehgam rendered on 21/08/1972 in Regular Civil Suit No. 52 of 1971. It is needless to say that the trial Court accepted the case of the plaintiffs and decreed their suit for specific performance of the agreement set up in the case. ( 2 ) THE original respondents to this suit were the defendants and the original appellants were the plaintiffs before the trial Court in Regular Civil suit No. 52 of 1971. Appellants Nos. 2 and 3 herein were minors in the suit proceedings and on their behalf appellant No. 1 herein, their mother, as their natural guardian instituted the suit in question through appellant No. 4 as her Power of Attorney-holder. For the sake of convenience I shall refer to the appellants as the plaintiffs and the original respondents as the defendants. ( 3 ) THE facts giving rise to this appeal are not many and not much in dispute. The defendants were brothers. It may be mentioned at this stage that defendant No. 2 died during the pendency of this appeal and his heirs and legal representatives have been brought on record in his place in this appeal. Both the brothers as owners of three fields bearing survey Nos. 716, 717 and 718 admeasuring 3 Acres 23 Gunthas, 1 Acre 18 Guathas and 1 Acre 21 Gunthas respectively situated in the sim of village Palundra, Taluka Dehgam (the suit fields for convenience) mortgaged them with the predecessor-in-title of the plaintiffs and one bholidas Laldas for Rs. 2500 some time in 1954. The possession of the suit fields was handed over to the mortgagees. It is alleged that thereafter they executed one agreement on llth March, 1961 to sell the suit fields to one of the mortgagees, that is, the predecessor-in-title of the plaintiffs, for Rs. 9801. It is further alleged that out of the total amount of consideration, Rs. The possession of the suit fields was handed over to the mortgagees. It is alleged that thereafter they executed one agreement on llth March, 1961 to sell the suit fields to one of the mortgagees, that is, the predecessor-in-title of the plaintiffs, for Rs. 9801. It is further alleged that out of the total amount of consideration, Rs. 2500 was to be deducted for the mortgage money and the balance amount of consideration was paid to the defendants in cash. It is also alleged that the predecessor-in-title of the plaintiffs paid Rs. 1250 to the other mortgagee as his share of the mortgage amount with a view to showing that the suit fields remained with him unencumbered. The possession of the suit fields remained with the predecessor-in-title of the plaintiffs. He breathed his last some time in 1970. It appears that the defendants tried to snatch away possession of the suit fields from the plaintiffs. They were thereupon obliged to file one Civil Suit in the Court of the Civil Judge (J. D.) at Dehgam for protection of their possession thereof. It came to be registered as Regular Civil Suit No. 84 of 1970. The suit was dismissed. The plaintiffs carried the matter in appeal before the District Court of Ahmedabad (Rural) at Narol. It came to be registered as Regular Civil Appeal No. 25 of 1971. The plaintiffs succeeded in appeal and consequently their suit for injunction for protection of their possession came to be decreed. The defendants did not carry the matter further before any higher forum. During the pendency of the aforesaid appeal before the district Court of Ahmedabad (Rural) at Narol, the plaintiffs filed another suit against the defendants for specific performance of the agreement executed by them on llth March, 1961 in favour of their deceased predecessor-in-title (the suit agreement for convenience ). They also prayed for a permanent injunction for protection of their possession. It came to be registered as Regular Civil Suit No. 52 of 1971. The defendants filed their written statement at Exh. 11 on the record of the case and resisted the suit on various grounds. They inter alia denied the execution of the suit agreement and inter alia contended that the suit was barred by the doctrine of res judicata. On the aforesaid pleadings of the parties, the necessary issues were raised at Exh. 11 on the record of the case and resisted the suit on various grounds. They inter alia denied the execution of the suit agreement and inter alia contended that the suit was barred by the doctrine of res judicata. On the aforesaid pleadings of the parties, the necessary issues were raised at Exh. 18 on the record of the case. After recording evidence and hearing the parties, by his decision rendered on 2 1/08/1972 in Regular Civil Suit No. 52 of 1971, the learned Civil Judge (J. D.) at Dehgam decreed the suit for specific performance of the suit agreement. That aggrieved the defendants. They carried the matter in appeal before the District Judge of Ahmedabad (Rural) at Narol. It came to be registered as Regular Civil Appeal No. 84 of 1973. It appears to have been assigned to the learned Assistant Judge of Ahmedabad (Rural) at Narol for hearing and disposal. By his decision rendered on 14/12/1976 in Regular Civil Appeal No. 84 of 1973, the learned Assistant Judge of ahmedabad (Rural) at Narol accepted the appeal and set aside the judgment and the decree passed by the trial Court and dismissed the suit of the plaintiffs. Aggrieved thereby, the plaintiffs have invoked the further appellate jurisdiction of this Court under Sec. 100 of the Code of Civil Procedure, 1908 (the Code for brief) by means of this Second Appeal for questioning the correctness of the impugned decision rendered by the lower appellate court as aforesaid. ( 4 ) THE substantial question of law as framed by this Court at the time of admitting this Second Appeal was with respect to the conclusion reached by the lower appellate Court that the finding regarding the existence of the suit agreement recorded in the earlier litigation between the same parties would not operate as res judicata. Shri Amin for the appellants has also questioned the correctness of the impugned decision of the lower appellate court on the ground that the suit agreement was in fact executed by the defendants in favour of the predecessor-in-title of the plaintiffs and no fraud whatsoever was practised on them in that regard. ( 5 ) SO far as the second point is concerned, no substantial question of law in that regard has been framed by this Court at the time of the preliminary hearing of this Second Appeal for admission. ( 5 ) SO far as the second point is concerned, no substantial question of law in that regard has been framed by this Court at the time of the preliminary hearing of this Second Appeal for admission. This Court has however powers to frame additional substantial questions of law at the time of the final hearing of this appeal by virtue of sub-sec. (5) of Sec. 100 of the Code. The only limitation on exercise of such powers is that this court has to record reasons for raising such substantial question or questions of law. ( 6 ) THE second question raised by Shri Amin for the appellants pertains to the finding of fact recorded by the lower appellate Court on appreciation of the evidence on record. Section 100 of the Code does not empower this Court to upset any finding of fact, however erroneous, recorded by the lower appellate Court on appreciation of the evidence on record unless it is shown or found to be perverse. No authority is needed for this proposition of law. A reference may however be made to the binding ruling of the Supreme Court in the case of Karbalai Begum v. Mohammed Sayeed, reported in AIR 1981 SC 77 . ( 7 ) SHRI Amin for the appellants has tried to convince me that the finding of fact to the effect that the suit agreement was not executed by the defendants for sale of the suit fields is perverse. A finding can be said to be pervisrse if it is based on no evidence or it is based on misreading of evidence or it is contrary to the evidence on record or it is such as would not be recorded by any prudent person on the basis of the evidence on record. It cannot be gainsaid that the learned appellate judge has carefully scanned and scrutinised the evidence on record and has come to the conclusion that the defendants did not agree to sell the suit fields to the predecessoc-in-ritle of the plaintiffs and the suit agreement was not to be acted upon in that form. This finding of fact recorded by the lower appellate Court is borne out by the evidence on record. It is not the outcome of any misreading of evidence. It is not found to be contrary to the evidence on record. This finding of fact recorded by the lower appellate Court is borne out by the evidence on record. It is not the outcome of any misreading of evidence. It is not found to be contrary to the evidence on record. I do not find it to be such as no prudent person would record it on the basis of the evidence on record. In that view of the matter, it cannot be said to be perverse in any manner. ( 8 ) SHRI Amin for the appellants has then submitted that the learned lower appellate Judge has not properly appreciated the evidence on record more particularly the statement of defendant No. 1 in the proceedings under sec. 32g of the Bombay Tenancy and Agricultural Lands Act, 1948. It appears from the judgment of the lower appellate Court that the statement of defendant No. 1 in the tenancy proceedings was certainly appreciated by the lower appellate Court in the course of its judgment in appeal. I have found no infirmity in appreciation of that statement as made by the learned lower appellate Judge. I do not find it erroneous in any manner. Even if it is found to be erroneous, the finding cannot be upset in this appeal in view of the aforesaid ruling of the Supreme Court in the case of Karbalai Begum (supra ). ( 9 ) IN that view of my aforesaid discussion, I find no substance in the substantial question of law sought to be raised by Shri Amin for the appellants in support of this appeal at this stage. ( 10 ) SHRI Amin for the appellants has harped upon the substantial question of law framed by this Court at the time of the preliminary hearing of this appeal for admission. Shri Amin for the appellants has invited my attention to the judgment in Regular Civil Appeal No. 25 of 1971 at Exh. 58 on the record of the case in support of his submission that the finding as to the enforceability and validity of the suit agreement was recorded in the earlier litigation between the same parties. In view of the ruling of the Supreme Court in the case of Gangappa Gurudappa v. Rachawwa and Ors. 58 on the record of the case in support of his submission that the finding as to the enforceability and validity of the suit agreement was recorded in the earlier litigation between the same parties. In view of the ruling of the Supreme Court in the case of Gangappa Gurudappa v. Rachawwa and Ors. , reported in AIR 1971 SC 442 , runs the submission of Shri Amin for the appellants, that finding would operate as res judicata in the present litigation between the same parties. ( 11 ) IT may be mentioned at this stage that the doctrine of res judicata with respect to the previous litigation between the parties was invoiced by the defendants in their defence of the suit. Their defence in that regard has not been accepted by both the Courts below. The plaintiffs have at no stage invoked the doctrine of res judicata. In fact, they could not have raised it for the simple reason that by and large it is the shield for defence and not the weapon of attack. What the plaintiffs could have done was to plead that the finding regarding the enforceability and validity of the suit agreement was concluded between the same parties in the earlier litigation and the defendants were estopped or precluded from raising that point again in the present litigation. They could not have come with this plea as the suit was filed during the pendency of Regular Civil Appeal no. 25 of 1971 against the decision in their suit being Regular Civil Suit no. 84 of 1970. It is needless to say that the plaintiffs had lost in their earlier suit being Regular Civil Suit No. 84 of 1970. It is obvious that they could not have therefore raised the plea of estoppel or preclusion against the defendants regarding the enforceability or validity of the suit agreement. They could have however certainly raised such plea by way of amendment after the decision in their favour in Regular Civil Appeal no. 25 of 1971 at Exh. 58 on the record of the case. It is not in dispute that during the pendency of the subsequent litigation between the same parties giving rise to this Second Appeal, the decision in Regular Civil appeal No. 25 of 1971 was already rendered. 25 of 1971 at Exh. 58 on the record of the case. It is not in dispute that during the pendency of the subsequent litigation between the same parties giving rise to this Second Appeal, the decision in Regular Civil appeal No. 25 of 1971 was already rendered. It is unfortunate that the learned counterpart of the learned Advocate for the appellants before me was not sufficiently vigilant in that regard. No attempt was made to seek any amendment in the plaint in that regard. In that view of the matter, the doctrine of res judicata invoked by the defendants in their written statement to the plaint in the present litigation would not enure for the benefits of the plaintiffs. In absence of any plea in that regard in the plaint, the plaintiffs cannot be permitted to resort to the effect of the finding in their favour recorded in the earlier litigation concluded by the judgment in Regular Civil Appeal No. 25 of 1971 at Exh. 58 on the record of the case. ( 12 ) IT may be frankly stated at this stage that the aforesaid ruling of the Supreme Court in the case of Gangappa Gwudappa (supra) is certainly in favour of the plaintiffs. It however cannot come to their rescue in absence of any such plea in their plaint as pointed out hereinabove. ( 13 ) THE lower appellate Court has found that the suit agreement was not to be acted upon on the basis of the evidence on record. The reason given for recording that finding is quite convincing. It clearly transpires from the record that the suit agreement at Exh. 50 on the record of the case was executed on llth March, 1961 in favour of the predecessor-intitle of the plaintiffs. He breathed his last some time in 1970. He did not choose specifically to enforce it despite the alleged case set up by the plaintiffs to the effect that the full consideration for the suit fields was paid to the defendants. No explanation whatsoever has been given by or on behalf of the plaintiffs why their deceased predecessor-in-title did not choose to get the sale deed executed in terms of the suit agreement. That would certainly go to show that it was not to be acted upon has pleaded by the cefendants in their written statement. No explanation whatsoever has been given by or on behalf of the plaintiffs why their deceased predecessor-in-title did not choose to get the sale deed executed in terms of the suit agreement. That would certainly go to show that it was not to be acted upon has pleaded by the cefendants in their written statement. No conjectur s or surmises have been resorted to by the learned appellate Judge in that regard as he has drawn the only possible inference from the proved facts in that regard. It is an admitted position on record that during his life-time the deceased predecessor-in-title of the plaintiffs did not get the sale deed executed in terms of the suit agreement. That should necessarily raise an inference to the effect that it was not to be acted upon. ( 14 ) THE plaintiffs cannot be given the equitable relief of specific performance of the suit agreement also on this ground. Section 20 of the specific Relief Act, 1963 (the Act for brief) makes it clear that the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so. It cannot be gainsaid that it is an equitable relief. The exercise of the Courts discretion in that regard would certainly not be arbitrary but sound and reasonable guided by judicial principles as provided in Sec. 20 of the Act. The discretion in that regard will certainly be influenced by the conduct of the parties. The conduct of the deceased predecessor-in-title of the plaintiffs was quite eloquent. He knew that the suit agreement at Exh. 50 on the record of the case was not to be acted upon. He did not therefore get executed the sale deed for the suit fields despite the covenant to the effect that the full consideration was paid thereunder. I think that conduct on the part of the predecessor-in-title of the plaintiffs would have disentitled him to seek the equitable relief of specific performance. The plaintiffs have stepped into his shoes. Such conduct of his would therefore disentitle them to claim the equitable relief of specific performance of the suit agreement at Exh. 50 on the record of the case. ( 15 ) THE learned lower appellate Judge has dismissed the plaintiffs suit both for specific performance and injunction for protection of their possession. The plaintiffs have stepped into his shoes. Such conduct of his would therefore disentitle them to claim the equitable relief of specific performance of the suit agreement at Exh. 50 on the record of the case. ( 15 ) THE learned lower appellate Judge has dismissed the plaintiffs suit both for specific performance and injunction for protection of their possession. In view of the earlier litigation between the same parties pertaining to the relief of injunction for protection of the possession of the suit fields of the plaintiffs, it was not necessary for the plaintiffs to have claimed that relief in the subsequent litigation. The learned counterpart of the learned advocate for the appellants before me ought to have applied for deletion of that relief by seeking amendment of the plaint after the judgment of the first appellate Court in Regular Civil Appeal No. 25 of 1971 at Exh. 58. It appears that the relief of injunction in the present litigation was not pressed before the trial Court in view of the judgment at Exh. "58 on the record of the case It was therefore not necessary for the lower appellate Court in the instant case to have passed any Order in that regard while disposing of the appeal. It is therefore clarified that the decision in this appeal affirming the impugned decision of the lower appellate Court will not have the effect of nullifying the finally concluded decision between the same parties in Regular Civil Appeal No. 25 of 1971 at Exh. 58 on the record of the case. ( 16 ) IN the result, this appeal fails. It is hereby dismissed subject to the aforesaid modification to the effect that the impugned decision as affirmed in this appeal has no effect of nullifying the judgment in Regular civil Appeal No. 25 of 1971 at Exh. 58 on the record of the case. There shall be no order as to costs on the facts and in the circumstances of the case. .