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2001 DIGILAW 166 (ALL)

NAIM KHAN v. ALI SHER

2001-02-19

B.K.RATHI

body2001
B. K. RATHI, J. ( 1 ) ALI Sher, plaintiff, was the owner of the disputed agricultural land. He executed the sale deed of the said land in favour of Naim Khan on 1-9-1970. The present appellants are the heirs of Naim Khan. An agreement of repurchase of the property on payment of Rs. 12,000. 00 was executed on 4-9-1970. Both the documents were registered on the same day i. e. 20-10-1970. In pursuance of the agreement of repurchase the appellant Naim Khan did not execute the sale deed. Therefore, the respondent Ali Sher filed the Suit for specific performance of contract for repurchase, dated 4-9-1970. In the Suit he made necessary allegations that he was ready and willing to perform his part of the contract and also alleged that he is still in the possession of the land in dispute. ( 2 ) THE appellant contested the Suit. However, he did not dispute the execution of sale deed and the agreement of the re-purchase. On the other hand he contended that the plaintiff was never ready and willing to perform his part of contract and he has no money to re-purchase the land. The trial Court framed necessary issues and held that the plaintiff was not ready and willing to perform his part of contract and he has no money and, therefore dismissed the Suit. Aggrieved by the decree, the plaintiff respondent preferred Civil Appeal No. 162/87, which has been allowed by order, dated 14-7-1979 and the Suit for specific performance of contract of re-purchase on payment of Rs. 12,000. 00 has been decreed. Aggrieved by it, the present appeal has been preferred. ( 3 ) I have heard Sri Ravi Kiran Jain, Senior Advocate and Sri R. B. D. Misra, learned counsel for the appellants and Sri R. S. Mishra, learned counsel for the respondent and have gone through the record. ( 4 ) IT has been argued by Sri Ravi Kiran Jain, learned Senior Advocate that the appeal has not been correctly decided and the first appellate Court has committed error of law in finding that the plaintiff respondent was ready and willing to per form his part of contract, that he misread the endorsement of the post-man on the registered cover of the notice, dated 23-7-1973. That he has drawn wrong presumption from the fact that the plaintiff purchased the stamps of the Court fee immediately after the period of three years and this shows that the plaintiff was ready and willing to perform his part of contract. That the plaintiff did not appear before the Sub-Registrar inspite of the notice, dated 26-8-1972 issued by the appellant and that the right of repurchase was not exercised in the stipulated time and the money was never tendered. ( 5 ) IN this case the notice was sent by the plaintiff respondent to the appellant on 23-7-1973 to come and to execute the sale deed on 3-8-1973. The appellant did not reach on that day though the plaintiff was present in the office of the Sub-Registrar and moved an application. Regarding this the contention of the appellant is that the notice was received back on 6-8-1973 with the noting that the appellant did not meet the Post-man. The appellant was out of station and was in Shahjahanpur during that period and the notice was returned. That the appellant did receive the notice, therefore, he did not go to the office of the Sub-Registrar on0 3-8-1973. That the appellant himself served the notice on 26-8-1973 on the plaintiff to get the sale deed executed on 3-9-1973 but the plaintiff did not get the sale deed executed on that day and refused to accept the notice. That this circumstance shows that the appellant was ready to execute the sale deed within time, but the plaintiff was not having sufficient funds and was unable to get the sale deed executed in his favour. That he was not ready and willing to perform his part of the contract at all the times. ( 6 ) THE learned counsel for the appellant in support of the argument has also referred to the decision of Jugraj Singh v. Labh Singh, AIR 1995 SC 945 . It was observed by the Apex Court that the plaintiff should prove continuous readiness and willingness at all stages from the date of agreement till date of filing of the Suit. it was further observed that the substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiffs part of the contract. it was further observed that the substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiffs part of the contract. ( 7 ) IN this connection it is argued that the palintiff in his statement stated that in the year 1970 he was having 500/- - 700/- only with him. That therefore, at that time the plaintiff had no sufficient means. That the appellant himself served the notice on 26-8-1973 to get the sale deed executed on 3-9-1973 on payment of Rs. 12,000. 00. That inspite of that notice the plaintiff did not appear on 3-9-1973 to get the sale deed executed. It is further contended that the plaintiff borrowed a sum of Rs. 3000/- on 4-9-1973 from the appellant and executed the pronote regarding which the suit has been filed. That the fact that the palintiff borrowed a sum of Rs. 3000. 00 from the appellant shows that on that day he had no money to get the sale-deed executed. It has been argued by the learned counsel for the appellant that all these circumstances were not at all considered by the first appellate Court and the judgment is totally silent regarding these circumstances. It is also contended that all these circumstances were considered by the trial Court and, therefore the first appellate Court has erred in reversing the finding without considering the important circumstances. ( 8 ) IT is further contended that the first appellate Court has considered irrelevant circumstance to record the finding that the plaintiff was ready and willing to perform his part of contract. That it has observed that the Suit was filed on the very next day of the last day fixed for the execution of the sale-deed. That Court fee worth Rs. 1,307. 50 p. was also purchsed on that day. That filing of the Suit and purchasing of the Court fee can never be a circumstance to find that the plaintiff was ready and willing to perform his part of contract. It has been argued that in case it is taken as circumstance, all the Suits for specific performance of contract for sale should have decreed and there is no necessisty to consider the point of readiness and willingness. It has been argued that in case it is taken as circumstance, all the Suits for specific performance of contract for sale should have decreed and there is no necessisty to consider the point of readiness and willingness. The first appellate Court has also erred in accepting that the plaintiff was having ready money to get the sale-deed executed. That means (sic) has not been properly considered. That the first appellate Court has also erred in drawing inference from the fact that the appellant did not appear for execution of the sale-deed before the Sub-Registrar on 3-8-1973 in pursuance of the notice, dated 23-7-1973. That notice, dated 23-7-1973 was never received by the appellant and, therefore, there is no question of appearance before the Sub-Registrar for execution of the sale-deed in pursuance of that notice. The learned counsel has also referred to the decision of, Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604 . It has been held by the Apex Court in this case that finding of the fact arrived at by non-consideration of the relevant evidence or by essentially wrong approach is vitiated and the High Court is not precluded from recording proper findings. It is, therefore, contended that the High Court could disturb the finding of the fact in present case for the foregoing reasons. ( 9 ) CONTRARY to this, the learned counsel for the respondent have referred to the several cases in which the Apex Court has held that findings of fact should not be disturbed in Second Appeal by the High Court. The first is : Tehrakhatoon v. Salambin Mohammad, AIR 1999 SC 1104 . In this case it was found that one of the reasons given by the Court below was factually incorrect. The findings however, based on other relevant material on record. It was observed that this finding cannot be interfered by the High Cpourt. ( 10 ) THE other authority referred to on this point is : Arumugham (dead) by1 LRS v. Sundarambal, (1999) 4 JT (SC) 464 : ( AIR 1999 SC 2216 ). In this case, the High Court examined the evidence and reversed the judgment of the first appellate Court. The Apex Court has held that it is not permissible for the High Court to interfere in the finding of fact. In this case, the High Court examined the evidence and reversed the judgment of the first appellate Court. The Apex Court has held that it is not permissible for the High Court to interfere in the finding of fact. ( 11 ) THE third case referred to is : Ram Kumar Agarwal v. Thawar Das (Dead), (1999)6 JT (SC) 179 : ( AIR 1999 SC 3248 ). It was observed in this case that High Court can interfere with judgments of Courts below only on substantial questions of law. Findings of fact cannot be interfered with. The study of these cases shows that findings recorded by Courts below cannot be interfered by the High Court unless the finding is perverse and contrary to the evidence due to the misreading of the evidence. Even if few circumstances were not considered by the first appellate Court and the finding is based on other material, it cannot be disturbed in Second Appeal by the High Court. ( 12 ) IN the light of the above decisions, I, therefore, examine carefully the finding recorded in this case. ( 13 ) THE important circumstance of this case is that the plaintiff was the owner of the property and he executed sale-deed on 1-9-1970. The agreement is an agreement for reconveyance, which was executed on 4-9-1970. The sale-deed as well as the agreement of the reconveyance both were registered on 20-10-1970. Period fixed for reconveyance was three years and, therefore, the deed should have been executed by 3-9-1973. The Suit was filed on 4-9-1973 and is,therefore, within time. The facts of this case are similar to the case of D. S. Thimmappa v. Siddaramakka, AIR 1996, SC 1960. It was held in this case that cause of action arose on the expiry of the fixed period. Owner of the property approached the Court thereafter for specific performance of agreement of reconveyance. The Suit was held to be within limitation. ( 14 ) IN the light of the observations made in the judgment of the Apex Court, the distinction to be drawn in a case where there is simpliciter agreement for sale and where agreement is for reconveyance. In the present case the plaintiff sold the land and there is agreement for reconveyance. ( 14 ) IN the light of the observations made in the judgment of the Apex Court, the distinction to be drawn in a case where there is simpliciter agreement for sale and where agreement is for reconveyance. In the present case the plaintiff sold the land and there is agreement for reconveyance. It is implied in the agreement that the plaintiff was in need of money and, therefore, he sold the land and got executed the agreement of reconeyance. If it is so, the plaintiff cannot be expected to be in possession of sufficient funds immediately after execution of the agreement of reconveyance. The period fixed for reconveyance was for three years so that the plaintiff may arrange funds. In this case it is to be seen whether the plaintiff was ready and willing to perform his part of contract within three years the period fixed in the agreement for reconveyance. In such a case the fact that immediately or sometime after the agreement the plaintiff was not in possession of sufficient funds for the reconveyance is not material. Had he got means at that time, there was no question for plaintiff to execute the sale deed. Time of three years was granted for reconveyance with the intentions that during this period the plaintiff may collect the funds required for the reconveyance. In this light, the argument that in the year 1970 the plaintiff was having Rs. 500-700 is not material. Even, if the plaintiff was not having sufficient funds in the year 1970 it is not material. The plaintiff alleged that he collected money by the sale of his agricultural produce and served the notice on the appellants to execute the sale-deed on 3-8-1973. The plaintiff remained absent before the Sub-Registrar on that day. The plea taken by the appellant is that the notice was not served upon him. The service of the notice was considered in detail by the first appellate Court, who has held that service was intentionally avoided. The circumstances narrated by the appellant show that the appellant avoided the service so that he may not be required to appear before the Sub-Registrar on the date fixed. The allegation of the appellant that he was in Shahjahanpur in connection with his illness and was getting treatment was found incorrect by the first appellate Court and cogent reasons have been recorded for the same. The allegation of the appellant that he was in Shahjahanpur in connection with his illness and was getting treatment was found incorrect by the first appellate Court and cogent reasons have been recorded for the same. It does not appear proper that a person shall go from Sharanpur to Shahjahanpur for better treatment. Even the name of the ailment has not been disclosed and name of the person from whom the treatment was taken was also not disclosed. Therefore, the circumstance shows that the appellant was not ready to execute the sale-deed and avoided service of notice. ( 15 ) COMING to the argument that the appellant served notice on 26-8-1973 to get the sale-deed executed on 3-9-1973, but the plaintiff did not appear to get the sale deed2 executed on that day. On this point the contention of the plaintiff is to be accepted that he did not receive the notice. The plaintiff filed the present Suit on 5-9-1973. Therefore, it shall be presumed that he had sufficient means on 3-9-1973 and had he got the notice he would have appeared before the Sub-Registrar on that day. ( 16 ) THE argument that the plaintiff borrowed a sum of Rs. 3000. 00 on 4-9-1973 from the appellant and, therefore, it should be held that he had no means on that day cannot be accepted. ( 17 ) IT is true that the Suit on the basis of the pronote has been filed for the recovery of the amount and that Suit was decreed ex-parte. The plaintiff applied for setting aside the ex-parte decree. The fact that the Suit has been filed and decided ex-parte does not establish that the money was borrowed by the plaintiff from the defendant. It may be that this evidence has been created by the plaintiff to defeat this Suit. It appears from the circumstance that the Suit for this money on the basis of the pronote dated 4-9-1973 was filed in the year 1973 itself. There is no reasonable explanation as to what was the hurry to file the Suit on the said pronote as the limitation was for three years. ( 18 ) AFTER considering the entire circumstance, I am of the opinion that it has been established that the plaintiff was ready and willing to perform his part of contract at the relevant time. ( 18 ) AFTER considering the entire circumstance, I am of the opinion that it has been established that the plaintiff was ready and willing to perform his part of contract at the relevant time. the execution of the deed of reconveyance is admitted and, therefore, no other question arises for decision in this appeal. ( 19 ) THE appeal, therefore, fails and is accordingly dismissed. No orders as to costs. Appeal dismissed.