Paramu Vijayasree v. Paramu Jayaprakash — 1999 DIGILAW 225 (KER)

Judgment :- K.A. Abdul Gafoor, J. The appellant filed two suits (1) O.S.215 of 1982 for injunction which was later amended as one for recovery of possession as well and (2) O.S. No. 630 of 1983 for specific performance of Ext. Al agreement dated 21.10.1974. According to the appellant, the 1st defendant executed Ext. Al agreement to sell 57 cents of property described therein for an amount of Rs. 3.135/-. He received Rs. 2,000/- as advance and possession was given to the plaintiff. Plaintiff has taken possession of properties. There was attempt to trespass by the 1st defendant. That resulted in the former suit. Later, the trespass materialised. Consequently, the first suit was amended seeking recovery of possession as well. As the possession up to that time had been thus interrupted, the second suit was filed seeking specific performance of the agreement. The trial court dismissed both the suits. It was found that the suit was barred by limitation as well. The lower appellate court came to the conclusion that Ext. Al agreement itself was not truely executed. The reason stated by the lower appellate court is that if a substantial portion of the sale consideration had been paid on execution of Ext. Al agreement, with change of possession, necessarily it ought to have been registered. Therefore, non-registration of the document Ext. Al will certainly tell against its genuineness, according to the lower appellate court. It was also found that Ext. Al did not show transfer of possession of the property. Still another reason stated in the judgment of the lower appellate court to discard Ext. Al agreement is that the stamp paper in Ext. Al was purchased in the name of the 1st defendant as against the normal practice of purchasing it in favour of the assignee namely the plaintiff. Added to this, the lower appellate court also found that the suit was filed after a pretty long time of 8 years. 2. The judgment and decree of the lower appellate court is assailed by the appellant mainly contending that the approach of the lower appellate court was wrong on essential matters relevant for consideration of the issue involved. It is submitted, on the basis of the last sentence in Ext. 2. The judgment and decree of the lower appellate court is assailed by the appellant mainly contending that the approach of the lower appellate court was wrong on essential matters relevant for consideration of the issue involved. It is submitted, on the basis of the last sentence in Ext. Al that the agreement itself had spoken about the passage of possession from the 1st defendant to the plaintiff whereas the decision of the lower appellate court rested on its understanding of Ext, Al that Ext. Al did not contain any recital with regard to change in possession of the property. Therefore, the approach of the lower appellate court to a very relevant aspect is essentially erroneous and that itself gives rise to a question of law. It is also contended that there was part of performance on the part of the plaintiff by paying substantial portion of the amount agreed upon as consideration for sale of the property and consequently the possession had been transferred in favour of the plaintiff. In such circumstances, S.53A of the Transfer of Property Act, 1882 is attracted and therefore, even without registration the plaintiff could have continued in possession and resisted any trespass by the defendant. In such circumstances, even without approaching the court for specific performance within three years, the plaintiff could have, protected her possession over the property. This aspect has never been dealt with by the lower appellate court obviously because of the finding that Ext. Al was not a true document. 3. It is contended by the counsel for the appellant that in such circumstances, the erroneous approach of the lower appellate court on essential matters can certainly be taken as a substantial question of law and the High Court will be perfectly justified in interfering with the judgment of the lower appellate court. 4. It is contended on behalf of the respondents that when the suit itself is barred by limitation and that aspect has never been agitated before the lower appellate court, there is no reason at all to interfere with the judgment which contain sufficient reason to conclude that Ext. Al is not a truely executed document. The reasoning given by the lower appellate court that Ext. Al ought to have been registered when major portion of the consideration amount had been paid and possession had been passed in favour of the plaintiff is to be accepted. Al is not a truely executed document. The reasoning given by the lower appellate court that Ext. Al ought to have been registered when major portion of the consideration amount had been paid and possession had been passed in favour of the plaintiff is to be accepted. It is also contended that the reasoning given by the lower appellate court regarding purchase of stamp paper also will stand the test of reasonableness in the light of the normal practice followed by the parties to such similar transactions. Added to this is the conduct of the plaintiff in approaching the Court after a long period of 8 years. Thus, there is no substantial question of law to interfere with the finding arrived at appreciating the facts and circumstances and evidence in the case. It is also contended that the question regarding limitation had never been raised in the lower appellate court and therefore, the lower appellate court failed to consider that aspect. Moreover, when the suit itself is barred by limitation there arise no question for granting any relief in favour of the appellant. The contention with reference to S.53A of the Transfer of Property Act, 1882 can be raised only to defend a case and not to prosecute a case. Therefore, such a contention was not at all available for the plaintiff. 5. Within the limited jurisdiction vested in this Court under S.100 of the Code of Civil Procedure the only issue to be determined is whether any substantial question of law is revealed by the appellant to be answered in her favour to interfere with the judgment. If a question of law is raised, resulting in an affirmative answer, necessarily, the appellant will be entitled to relief in the appeal, otherwise it has to be dismissed. The decision in Sheikh Rahmat Ilahi v. Mohammad Hay at Khan & Ors. (AIR 1943 PC. 208) contains the proposition as to what is a question of law. If a question of law is raised, resulting in an affirmative answer, necessarily, the appellant will be entitled to relief in the appeal, otherwise it has to be dismissed. The decision in Sheikh Rahmat Ilahi v. Mohammad Hay at Khan & Ors. (AIR 1943 PC. 208) contains the proposition as to what is a question of law. The decision reads as follows: "where the Courts below had misconceived the real question of fact they had to try there was an error of law on which a second appeal lay: and their Lordships can see no difference in principle between a failure to appreciate and determine the real question of fact to be tried and a failure to appreciate and determine a question of fact which vitally affects the issue stated in the case. In either case the failure is a failure in the duty imposed by law upon the Court and the question whether there has been such a failure must in their Lorships opinion be a question of law. Their Lordships would add that if, as was the duty of the High Court, that Court had clearly specified the grounds upon which they held the second appeal to be competent, not only would their Lordships task have been facilitated, but the expense and delay occasioned by the appeal to His Majesty in Council might very possibly have been saved". It has been held by the Supreme Court in Jagdish Singh v. Natthu Singh (AIR 1992 SCI 604) that, "As to the jurisdiction of the High Court to re appreciated evidence in a second appeal it is to be observed that where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings". With these observations in mind I have to consider whether the approach made by the lower appellate court is essentially erroneous with regard to the content of Ext. Al. 6. The lower appellate court addressed a question to itself, "whether the agreement evidenced by Ext. Al is true?" While examining this question it also considered the plaintiff's case that, "as per Ext. Al possession was handed over to the plaintiff and plaintiff was put in possession of the property". Al. 6. The lower appellate court addressed a question to itself, "whether the agreement evidenced by Ext. Al is true?" While examining this question it also considered the plaintiff's case that, "as per Ext. Al possession was handed over to the plaintiff and plaintiff was put in possession of the property". The lower appellate court also understood that "same is the evidence adduced by the plaintiff in this respect". But the lower appellate court came to the conclusion that "even though the plaintiff is having such a case viz. that the plaintiff is put in possession of the property, no such averment is seen made in Exl Al". But the last sentence in Ext. Al written in vernacular is that, (the possession of the property is given to you from this day, agreed so"). Thus, there is an unequivocal statement in Ext. Al that possession had been given to the plaintiff. It seems that the lower appellate court did not show the patience to read it fully till its end. It was an erroneous approach. The lower appellate court only noticed the right conferred in Ext. Al to the plaintiff in case refusal by the 1st defendant to execute the document in terms of Ext. Al agreement, that in such a case the plaintiff will be entitled to approach the Court and get possession of the property through Court. That recital is only with regard to remedy in case of default of the agreement and it has nothing to do with the factum of change of possession as agreed to in Ext. Al . After having noticed the earlier portion it seems that the appellate court stopped the reading of Ext. Al and thus omitted to notice the last sentence which unambigously recites that the possession had been handed over to the plaintiff. It was thus the lower appellate court has come to the conclusion and the finding that Ext. Al agreement was not truely executed and it did not speak about the passage from the 1st defendant to the plaintiff. Thus there was essentially an erroneous approach to the relevant fact which shall be corrected in terms of the decision of the Supreme Court in Jagdish Singh v. Natthu Singh (AIR 1992 SC 1604), as it is a real question of law as held by the Privy Council in S. Rahmath Ilahi v. M.H, Khan & Ors. Thus there was essentially an erroneous approach to the relevant fact which shall be corrected in terms of the decision of the Supreme Court in Jagdish Singh v. Natthu Singh (AIR 1992 SC 1604), as it is a real question of law as held by the Privy Council in S. Rahmath Ilahi v. M.H, Khan & Ors. (AIR 1943 PC. 208). 7. I need not pronounce upon the issue regarding limitation or the contention with reference to S.53 A of the Transfer of Property Act because the legality or otherwise of Ext. Al has to be considered afresh in the light of the clear recital in the said document. Therefore, on the substantial question of law as answered above, the judgment of the Court below is set aside directing the lower appellate court to consider the appeal afresh considering the contentions available to either parties. Parties shall appear before the lower appellate court on 27.10.99 and the lower appellate court shall dispose of the appeal before the close of the court for next mid summer vacation. The appeal is allowed as above. There will be no order as to costs.