Judgment 1. THIS second appeal is directed against the judgment and decree dated 22. 7. 1988 passed by the Ld. Addl. District judge First Court Howrah in Title Appeal No. 253/87 affirming those of the Ld. Assistant District Judge Second Court. Howrah passed on 20.1.1987 in Title Suit No. 58/82. 2. THE plaintiff-respondent filed a suit for specific performance of a contract, alternatively, for damages on the allegation that the defendant -appellants by an agreement dated 10.04.1981 agreed to sell the property in dispute to the plaintiff-respondent at a consideration of Rs.20,000. A sum of Rs.201 in cash was paid as 'earnest money by the plaintiff-respondent. Though the plaintiff-respondent was ready and willing to perform his part of the contract, the defendant-appellants were not willing to execute the sale deed in terms of the said agreement for sale. The plaintiff-respondent sent a lawyer's letter to the defendant-appellants to complete the transaction. As the defendant-appellants failed to comply with the agreement, therefore, the plaintiff-respondent filed a suit for specific performance, of the contract for sale with an alternative prayer for damages. The defendant-appellants filed a written statement to offer contest, "they denied the material plaint allegations. According to them, the suit was not maintainable in law and that the agreement for sale as mentioned in the plaint was subject to another agreement for sale entered into on the same day by and between the plaintiff and the defendants on one side as vendors and one Jajati Dutta and others on the other hand as vendees in respect of another portion of land measuring 15 bighas and 12 cottahs. The two transactions were entered into at the same time and one formed part of the other. The plaintiff-respondent backet out from the said agreement for sale with Jajati Dutta and others with a view to defraud the defendant-appellants. It was further alleged in the written statement that, the disputed agreement for sale between the parties la this appeal was never read over and explained to the appellants and the said agreement was manufactured an some blank papers upon which the plaintiff-respondent obtained signatures of the defendant-appellants on some plea. The said agreement was a product of fraud and was not enforceable in law. It was further alleged that no earnest money was paid by the plaintiff-respondent. 3. THE Ld. The said agreement was a product of fraud and was not enforceable in law. It was further alleged that no earnest money was paid by the plaintiff-respondent. 3. THE Ld. Trial Court after considering the facts and circumstances of the case and the submissions made by the Ld. Lawyers of both sides decreed the suit for specific performance of the contract for sale. Being aggrieved by and dissatisfied with the judgment and decree passed by the ld. Trial Judge, the defendant-appellants preferred an appeal before the ld. first Appellate Court. The Ld. Court below, lias been pleased to dismiss the appeal holding that there is no reason to interfere with the findings of the Ld. Trial Judge. 4. AGAINST that judgment of affirmation, the defendant-appellants have come before this Court on the grounds, inter alia, that the Ld. Court below erred in law in holding that the suit was maintainable, that the Ld. Court below misdirected itself on the principles of the question of validity of a written document on the ground of undue influence, fraud, misrepresentation etc. , and that the Ld. Court below erred in law holding that the impugned agreement for sale was not hit by the provisions of the w. B. L. R. Act, 1955 and the Urban Land Ceiling and Regulation Act, 1976. The appeal is hotly contested. Mr. Sengupta, Ld. advocate for the appellants relying upon the principles laid down in Ratanlal-Banshilal and Ors. v. Kishorilal Goyenka (97 CWN 227) has argued that there has been judicial misconduct in the assessment or admission of evidence or on assumptions and surmises and on evidence on which no reasonable man could draw such inference and there has been erroneous application of law which is otherwise well-settled. In that case, it was held that by importing expression 'substantial question of law', the Law Commission can be said only to have sought to eliminate frivolous, flimsy and fragile Second Appeals and exhorted the High Courts to be on strict vigil against entry of appeals on inconsequential and ingenious grounds. It does not by its own avowal preclude admission of appeal in cases where there has been judicial misconduct in the assessment or admission of evidence. It does not by its own avowal preclude admission of appeal in cases where there has been judicial misconduct in the assessment or admission of evidence. This predicates that facts proved upon such misconduct of the proceeding and misapplication of the procedure with regard to evidence must necessarily be a question of law touching the legality of inference of proved facts. If the finding of fact is on no evidence, the finding can be said to be on assumptions or on surmises and conjectures. Such a situation cannot be allowed to go unremedied where it occasions a failure of justice in as much as that will discredit the judicial system before the people. Irrationality or perversity of a Court or the Tribunal of facts results in an illegality pertaining to the question of law. A question of law assumes substantiality when it affects the rights of the parties. 5. IT has been further held in that ease that there is no precedent to draw upon in support of the proposition that in the wake of amendment of section 100 of the C. P. C. in 1976, no Second Appeal could lie from an order or judgment on the ground that the inferences have been drawn on no evidence or on assumptions and surmises or on evidence on which no reasonable man could draw such inference or has been drawn by erroneous application of law which is otherwise well-settled. 6. THE above judgment was rendered by a Special Bench of our High court consisting of five Hon'ble Judges and considered what was the scope of the High Court's power to bear the Second Appeals under amended section 100 of the C. P. C. Mr. Sengupta, Ld. advocate has; drawn to the notice of the Court, the question of maintainability of the suit in view of the special provisions under Section 4e of the West Bengal L.R. Act 1955 and under Section 27 (1) of the Urban Land (Ceiling and Regulations) Act. 1976. 7. IN the original written statement filed by the appellants, a point of maintainability of the suit was not taken up. Subsequently, by an amendment of written statement, the point of maintainability of the suit was taken up by the appellants. The Ld. 1976. 7. IN the original written statement filed by the appellants, a point of maintainability of the suit was not taken up. Subsequently, by an amendment of written statement, the point of maintainability of the suit was taken up by the appellants. The Ld. Trial Court in its judgment has observed that the issue of maintain/ability of the suit was not pressed as the time of trial and hence it was decided in favour of the plaintiff. From the judgment of the Ld. 1st Appellate Court, it appears that the question of maintainability of the suit was pressed by the defendant-appellants and it was submitted that the suit was not maintainable because the document sought to be enforced was a void document. It was also argued that the suit was not maintainable in view of Section 4e of the W. B. L. R. Act, 1955. The Ld. First Appellate Court negatived both the contentions of the Ld. advocate for the defendant/appellants. So far as the question whether the alleged original contract for sale was a void and fraudulent document or not need not be considered at this stage as it involves the issue whether a question of fact can be reopened in Second Appeal. This point is against the appellants for reason discussed below in the body of this judgment. So far as the legal contention of Mr. Sengupta is concerned, this Court is unable to agree with the Id. advocate for the defendant/appellant for the reasons given below. 8. SECTION 4e of the West Bengal Land and Reforms Act. 1955 provides that no transfer of any land within an urban agglomeration as defined in the Urban Land (C and R) Act. 1976 and used mainly for agriculture or as an orchard shall be valid without any order in writing of the collector and the registering authority shall not register a document without the order of the collector permitting such transfer. 1976 and used mainly for agriculture or as an orchard shall be valid without any order in writing of the collector and the registering authority shall not register a document without the order of the collector permitting such transfer. The judgment of the Supreme Court in vingh-sinji v. Union of India ( AIR 1981 SC 234 ) dealing with the various points raised as to the validity of the U. L. (C and R) Act, 1976 did consider section 27 and as per the majority judgment held as follows :- "we hold the entire Urban Land (Ceiling and Regulation) Act, 1976 valid save and except 27 (1) in so far as it imposes the restriction on transfer of any urban or urbanizable land with a building or of a portion of such building which is within the ceiling area". It is obvious from above that in the case of any urban or urbanizable land with a building or of a portion of a building in an urban agglomeration within ceiling limits the same does not come within the ambit of Section 27 of the U. L. (C and R) Act. 1976. As such a land does not come within the mischief of the said Act, therefore, there is no question of its coming within the ambit of Section 4e of the W. B. L. R. Act, 1955. In the case at hand, from the description of the property as given in the schedule to the plaint, it appears that the land in question has been described as follows :- "all that Raiyat Sthitiban land measuring 14 Cattahs 5 Chhataks 15 sq. ft. together with buildings, structures, doors and windows comprised within Dag. Nos. 631 and 632, Khatian No. 252 of Mauza-Domjur, P. S. Domjur, Dist. Howrah, J. L. No. 50, Towji No. 658. Rev. Survey No. 1953". 9. SO it "is obvious that the land though situated within urban agglomeration is one with a building on it or on a part of it. 10. IN this view of the matter, this Court confirms the findings of the Ld. Court below that there is no substance in the contention of the Ld. advocate for the defendants-appellants about the maintainability of the suit. Mr. Bhuinya, Ld. 10. IN this view of the matter, this Court confirms the findings of the Ld. Court below that there is no substance in the contention of the Ld. advocate for the defendants-appellants about the maintainability of the suit. Mr. Bhuinya, Ld. advocate appearing on behalf of the plaintiff/ respondent has submitted that even if it is assured the purpose of argument that the land in question here of Section 4e of W. B. L. R. Act, 1955 still the Court can give a decree for specific performance of a contract. The Ld. advocate has referred to a decision of allahabad High Court reported in Indra Prasad Saksena v. Chambal Malik air 1994 Allahabad 105. In that case, it has been held that Section 26 of the Urban Land (Ceiling and Regulation) Act, 1976 requires that notices should be given by intending transferer seeking a permission of competent authority before transfering urban land. It did not oust the jurisdiction of the Court to pass a decree for specific performance. The specific performance decree could be executed or made workable only if Section 26 of the Act was complied with. At the time of passing of the decree, the court could impose a condition that execution of the sale deed by the intending transferor in favour of the purchaser will be subject to compliance with the provisions of Section 26 of the U. L. (C and R) Act, 1976. If these provisions were not complied with, no sale deed could be executed. It cannot be contended by the intending purchaser that when sale is made in pursuance of the decree of the Court, no permission is needed under section 26 of the Act, since it may have serious repercussions and may render the U. L. (C and R) Act, 1976 redundant because vendor and vendee could by under-hand means defeat the provisions of the Act by entering into collusive agreement and thereafter get the decree on the basis of the agreement of sale and execute the sale deed without complying with section 26 or Section 27 of the Act. 11. MR. Sengupta has not been able to place any decision to controvert the proposition of law as laid down in the reported decision of the allahabad High Court. 11. MR. Sengupta has not been able to place any decision to controvert the proposition of law as laid down in the reported decision of the allahabad High Court. As this Court finds good reason not be depart from the view taken by the Allahabad High Court, therefore, this Court upholds the contention of Mr. Bhuinya Ltd. advocate. 12. MR. Sengupta, Ld. advocate for the defendant-appellants has submitted that the Ld. Court below has been pleased to hold that the defendant-appellants have admitted the execution of the documents, therefore they are not entitled to say anything questioning in the execution of the document of the agreement for sale. According to Mr. Sengupta, the finding of fact is not ordinarily assailable in Second Appeal but here in this case, as the conclusion is based on no evidence and based on misapplication of well-settled law and on evidence on which no reasonable man could draw such an inference, therefore, the question is a question of law and it can be agitated in Second Appeal. Mr. Sengupta has further relied upon the principles laid down in J. B. Ross and Co. v. C. R. Scrivan (AIR 1977. Cal. 269): Ardcshir v. Jom Sasson (AIR 1928. Privy Council 208 and Ram Praga Singh v. Rajendra Prasad (AIR 1976 Patna 92), in support of his contention that no decree can be passed legally without evidence, that in a suit for specific performance of the contract the plaintiff must show his readiness to do his part of contract upto the decree and that simply because the defendant gave his mark upon a paper, therefore, the pleading does not amount to an admission of document. In J. B. Ross (supra), it was held l that no decree can legally be passed without evidence in a case where defendant is ex parte and does not choose to contest except in; suits on negotiable instruments governed by the provisions of Order 37 Rule 2 of C. P. C. In that case, the action was bi ought for unliquidated damages arising out of an alleged breach of contract which was made between the parties. It was further held that the fundamental principle is that the plaintiff, when he comes to a Court must prove his case, and he must prove it to the satisfaction of the Court. It was further held that the fundamental principle is that the plaintiff, when he comes to a Court must prove his case, and he must prove it to the satisfaction of the Court. The only exceptions to these are cases provided for any Order 37 Rule 2 c. P. Code. In Ardeshir (supra), the suit was an action by a purchaser for specific performance of a contract of sale for certain here ditaments on malabar Mills in Bombay with claims for damages. Held, there was no concluded contract in that case, in a suit for specific performance of contract, a plaintiff must show readiness to do his part of the contract upto the decree. Both the Indian Law and English Law are the same of the point. In Rani Pragas (supra), it was 'held that where in a suit on a hand-note, the only admission by the defendant was that the defendant gave his thumb impression on a blank paper to the lender and the loan was repaid and it was also pleaded that the lender might have handed it over to a third person which had been utilised by the plaintiffs for the instant suit, the pleading does not amount to an admission of the hand-note. It must further be proved that the thumb-impression was given on the document after it was written and completed. 13. MR. Bhuinya, Ld. advocate for the plaintiff-respondent has in this connection referred to the decision of the apex court of our land in Haralal v. Gajjan ( AIR 1990 SC 723 . In that ease, a plaintiff claims possession under his father as sub-tenant and thereafter as Sardar under U. P. Zamindari Abolition and Land Reforms Act and in support of claim he relied on entries in revenue records and receipts of payments of Rent and in Khasra of 1356 Falsi where father or plaintiff was shown sub-tenant, the Lower Appellate Court was not justified in documents and hence the High Court powers appreciating the evidence and arriving at its own conclusion. It has been held further that Section 100 (1) (c) of the C. P. C. refers to a substantial error or defect in the procedure. It has been held further that Section 100 (1) (c) of the C. P. C. refers to a substantial error or defect in the procedure. The error or the defect in procedure to which the clause refers is not an error or defect in the appreciation of evidence made is patently erroneous and the finding of fact recorded in consequence is grossly erroneous that cannot be said to introduce a substantial error or defect in the procedure. However, when the First Appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible, that may introduce an error or defect in procedure. So, also in a case where the Court below ignored the weight of evidence and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in reappreciatting the evidence and come to its own independent decision. 14. MR. Bhuinya has also referred to an observation of our apex Court in paragraph 19 at page 613 of the decision reported in J. P. Industries v. Workmen (AIR 1972, SC 605. That was a case under the Minimum Wages Act, in that case in paragraph 19 of the report at page 613. Their Lordships of the Supreme Court observed as follows :- "it was next urged that even if the report in question is admissible, we cannot look into the contents of those documents. This contention is again unacceptable. Where a document properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence". It ha been further submitted by Mr. Bhuinya that the principles laid down in the cases cited by Mr. Sengupta do not stand in the way of getting relief by his client. Here, the suit is one for specific performance of contract, in the alternative, for damages. His further contention is that his client has adduced both documentary and oral evidence in respect of his contention. Therefore, the principles laid down in J. B. Ross's case (supra) cannot apply here. Referring to Ardeshir's case (supra), Mr. Bhuinya has submitted that unlike that case, here, there is a concluded contract Moreover, the plaintiff-respondent has been able to prove by evidence that he was willing to perform his part of the contract upto the decree. Referring to the decision in Ram Pragas case (supra), Mr. Referring to Ardeshir's case (supra), Mr. Bhuinya has submitted that unlike that case, here, there is a concluded contract Moreover, the plaintiff-respondent has been able to prove by evidence that he was willing to perform his part of the contract upto the decree. Referring to the decision in Ram Pragas case (supra), Mr. Bhuinya has submitted that in the case at hand, the plaintiff-respondent has not only relied upon all admission in the pleading by the defendants-appellants but has proved-the case of the plaintiff/respondent independently by oral and documentary evidence. There is substantive evidence to show that the signatures of the appellants were put on the agreement for sale after they had perused the contents of the said deed. 15. THE limited points on which this Court sitting in Second Appeal can reappreciate the evidence are whether there is any perverse finding of fact or whether the decision of the Ld. Court below is based on surmises or conjectures or whether there is erroneour application of law which is otherwise well-settled by the Ld. Court below. 16. IN the original written statement filed on behalf of the defendants/ appellants it was stated at paragraph 6 as follows :- "with regard to paragraph 6 of the complaint, these defendants deny the allegations made therein as motivated, purposive and suppression of material facts. As the plaintiff was looking after all the joint properties of the parties, all the documents of title and other relevant papers were in the custody of the plaintiff. As the said documents were absolutely necessary for obtaining permission from the Land Ceiling Authority, these defendants requested him to hand over the said documents to these defendants but the plaintiff refused to part with the said documents and agreed to obtain said permission for sale. This fact will appear from the Land Ceiling return submitted by the plaintiff for himself and on behalf of these defendants. In the circumstances, these defendants had no obligation in the matter of obtaining permission for sale of the properties mentioned in the plaint. In paragraph 7 of the said written statement, it has been stated as follows :- "7. With regard to paragraph 3 of the plaint, these defendants deny the allegations made therein as utterly false. In the circumstances, these defendants had no obligation in the matter of obtaining permission for sale of the properties mentioned in the plaint. In paragraph 7 of the said written statement, it has been stated as follows :- "7. With regard to paragraph 3 of the plaint, these defendants deny the allegations made therein as utterly false. The plaintiff having failed to supply the relevant documents of title to these defendants and also to take out permission from the Land Ceiling Authority as agreed by him, failed to perform his part of the agreement within stipulated is not entitled to any relief by way of specific performance of the agreement and his earnest money of Rs.201 /- is liable to be forfeited and the agreement is liable to be cancelled". 17. IN the additional written statement which was filed subsequently a new paragraph 3a was introduced stating as follows :- "3a. That the defendants had faith and confidence in their eldest brother, the plaintiff, and had no reason to disbelieve him at the material point of time. The impugned agreement for sale was never read and explained to the defendants and the said agreement was blank as to material particulars when the signatures were obtained from the defendants by willful and deliberate misrepresentation of the facts and particulars. The alleged agreement for sale is not a conscious execution because the pen and the brain never acted together at the material point of time. The alleged agreement for sale is a product of fraud and undue influence. No alleged earnest money was; ever paid by the plaintiff to the defendants. The alleged agreement for sale is void, inoperative and not binding on the defendants and the sale is liable to be set aside. The said alleged agreement for sale is legally enfocreable in law due to novation of contract. The alleged agreement for sale was always in the custody of the plaintiff and it now appears there are variations and/or inconsistency of the material terms as was conveyed and/or communicated to the defendants by the plaintiff while obtaining their signatures". 18. FROM the portions of written statement cut quoted above, it appears that the ease which was taken up initially in the written statement was subsequently modified. 18. FROM the portions of written statement cut quoted above, it appears that the ease which was taken up initially in the written statement was subsequently modified. If it is the case of the defendants/appellants that the agreement for sale is a product for fraud and undue influence, then it can only be said that the writ Court is not the proper forum for deciding the disputed question of fact. The Ld Trial Court has already come to a decision on that point. In more than one paragraphs of the written statement, it has been stated that the defendants/appellants could not take steps for obtaining the approval of the Land Celling authority because the relevant papers were not handed over to them. They have also stated that because of the misconduct of the plain tiff/respondent, he has to forfeit the sum of Rs.20/- paid as earnest money. In this background, the Ld. Court below considered the evidence on the point adduced by the witnesses coming on the side of the plaintiff/respondent. Although there is a reference in the written statement about the agreement with Jajati Dutta but unfortunately there is no substantive evidence on the point adduced by the defendant/appellants that the agreement with Jajati Dutta was a part of the total a design. In the context on which the impugned agreement for sale was executed. Moreover, it is on record that the suit between the three brothers and Jajati Dutta regarding the agreement for sale with him had been compromised. Therefore. the appellants cannot complain now that because the sale with Jajati Dutta did not take place, the impugned agreement for sale is not enforceable For reasons given by the Ld. Court below and the Ld. First Appellate Court on the materials available, it has come to a conclusion unfavourable to the defendants/appellants. Therefore, it can be said by any stretch of Imagination that there is absolutely mo material for the Ld. Court below to come to the conclusion arrived at. Relying on the principles laid down in Hiratas cast; (supra), it may be said that even if the appreciation of evidence made by the Ld. Court below is patently erroneous and the finding of fact arrived at in court sequence of this is grossly erroneous, that cannot be said to introduce a substantial error of defect in the procedure. Relying on the principles laid down in Hiratas cast; (supra), it may be said that even if the appreciation of evidence made by the Ld. Court below is patently erroneous and the finding of fact arrived at in court sequence of this is grossly erroneous, that cannot be said to introduce a substantial error of defect in the procedure. In this case, the plaintiff-respondent has been examined as P. W. 1. He has fully supported his plaint case. Nothing has come out in his cross examination to show that he is a totally unrealiable witness. He has stated about the agreement of sale and payment of the earnest money and signing of the agreement by the two appellants after understanding the contents of the documents. The appellants are educated men. One of them is an M. A. Dibyendu (P. W.-2) is a B. Com, LL. B. who mainly practises a tax lawyer. He was stated that in his presemce, the defendant-appellants executed the agreement for sale P. W.-2, signed the deed as advocate-scribe. Nothing has come out in his cross-examination to discard his testimony as out of hand. 19. THE two appellants have come to depose as D. W.-1 and D. W.-2. They have supported their' case. There is no independent corroboration. Moreover, their pleading show that they could not apply for permission of the competent authority as the original documents were lying with the appellant. The existence of the agreement of sale is not altogether denied. The signature on the agreement for sale are not denied. The stand is that the pen and brain did not act together. The onus is entirely on the appellants. The Ld. Court below has come to a decision on the point giving his reasons. One can take a different view on the evidence but for that reason only this Court sitting in Second Appeal will not interfere with the findings of facts arrived at by the ld. Court below in the absence of the special circumstances as stated in the body of the judgment. 20. IN view of the discussions made above, this Court finds that, there is no substance in the appeal which fails accordingly. The Second Appeal is dismissed with costs. The judgment and decree passed by the learned court of Appeal below are affirrmed. Hearing assessed at 50 Gms. Second appeal dismissed.