JUDGMENT 1. This appeal was admitted on 1st January, 1998. Along with the appeal, following substantial questions of law were framed:- 1. When the land was granted a Nautor in the year 1973 under the old Nautor Rules, could the agreement to sell the suit land be contested by the Alignee on the ground that the same could not have been alienated by 20 years, when the said restriction was not applicable to grant the nautor in old Nautor Rules? 2. Whether the prohibition for alienating the land could be judicially presumed, when there was no evidence available on the record supporting the factum of prohibition of the alienation of the suit land? 3. Whether in a suit for specific performance when there is some restriction for alienation, could a decree of a specific performance be refused when on the date of passing of the decree no such restriction was operative? 4. Whether the learned Lower Appellate Court has wrongly rejected the discrimination of DW-2 who duly proved the execution of the Agreement by the defendant in favour of the plaintiff and also proving the sale consideration to be Rs. 85,000/- as contained in the Agreement, are not the findings of the learned Lower Appellate Court contrary to the oral and documentary evidence holding the sale consideration to be Rs. 2,85,000/- vitiated and is not a result of misreading and misappreciating the oral and documentary evidence? 5. When there is no evidence available on the record of the market value, could the learned Lower Appellate Court of its own imagination on the basis of the current market value could give an imaginative value of the suit property, are not such findings vitiated being extraneous to the record? 6. Whether the learned Lower Appellate Court has erred in law in not drawing any adverse inference against the defendant in not having proved the patta granted under nautor proving the restriction on the alienation of the land granted to the defendant? 2. In the absence of there being anything said as to on which of the substantial questions of law the appeal was admitted, at the time of hearing of this appeal, learned Counsel for the parties stated that this appeal may be heard on all these questions and court may record its findings on those. 2. In the absence of there being anything said as to on which of the substantial questions of law the appeal was admitted, at the time of hearing of this appeal, learned Counsel for the parties stated that this appeal may be heard on all these questions and court may record its findings on those. Accordingly, learned Counsel for the parties were heard on the above referred substantial questions of law and with their assistance record of the trial Court was also examined. 3. This is plaintiffs appeal against the judgment and decree dated 7th September, 1997 passed by the learned Additional District Judge, Kullu, in Civil Appeal No. 4 of 97 whereby appeal filed by respondent-defendant was allowed and as a consequence of it, decree for specific performance passed by the learned trial Court in civil suit No. 285/92, decided on 29th October, 1996, titled as Ishari Lal v. Smt. Solma was dismissed. Parties are being referred to hereinafter as plaintiff and defendant respectively. 4. As per averments made in the plaint, defendant entered into an agreement Ex. P.W. 2/A dated 24th December, 1989, to sell land measuring 2 bigha 2 biswas comprised in khata/khatauni No. 718/847, khasra No. 1968, measuring 2-2-0 bigha, situated in Phati Benchi, Kothi Raison, Tehsil and District Kullu. There was a three storeyed house standing on the part of this land which was covered by this agreement, to be referred as suit land in this judgment. Consideration as per plaintiff settled for all this was Rs. 85,000/-. 5. Out of this agreed consideration Rs. 22,000/- were received by the defendant as earnest money and balance amount was agreed to be received by him at the time of execution and presentation of this sale deed for registration when possession was also agreed to be delivered. Plaintiff claims that he made repeated requests to the defendant to execute sale deed, get it registered, receive the balance amount and also deliver possession of the suit land, but without any consequence. As a last resort, he claims that registered legal notice was issued vide Ex. P.W. 1/A calling upon the defendant to do the needful as he was ready and willing to perform his part of agreement. 6. Defendant, instead of complying with the terms of the notice, raised a baseless plea that sale consideration was Rs. 2.85 lacs and not Rs. 85,000/-. 7. In terms of Ex. P.W. 1/A calling upon the defendant to do the needful as he was ready and willing to perform his part of agreement. 6. Defendant, instead of complying with the terms of the notice, raised a baseless plea that sale consideration was Rs. 2.85 lacs and not Rs. 85,000/-. 7. In terms of Ex. P.W. 2-A sale deed was to be executed within three years. Defendant in her reply dated 21st December, 1992 to Ex. P.W. 1/A, declined to execute and get the sale deed registered and at the same time to deliver possession of the suit land, plaintiff filed the suit on 30th December, 1992 before the trial Court wherein amongst other things it was pleaded that he was ready and willing to perform his part of agreement, supra. 8. Defendant, when put to notice, admitted her signatures on the agreement, i.e. Ex. P.W. 2/A. She, however, alleged that suit is barred by time and was not maintainable. Suit land being Nautor could not have been alienated within the period of 20 years. Transfer being in violation in the terms of Patta was void and illegal, as such agreement was not enforceable. It was also stated by her that it was plaintiff who did not perform his part of agreement who was otherwise guilty of concealment of material facts. According to her property was of the value of more than Rs. 3 lacs and it was in these circumstances that she had agreed to sell it for Rs. 2.85 lacs to the plaintiff pursuant to which she received Rs. 22,000/-. She further claimed that plaintiff, in connivance with marginal witnesses, got entered the agreed sale consideration at Rs. 85,000/- instead of Rs. 2,85,000/-. Thus, it was a case of misrepresentation and fraud having been played upon her. In this background she prayed for dismissal of the suit. In the replication filed by the plaintiff allegations made in the written statement, which were contrary to the facts pleaded in the plaint were denied and it was reiterated that agreed sale consideration was Rs. 85,000/- and not Rs. 2.85 lacs, as alleged. All other averments to the contrary were denied. 9. In the replication filed by the plaintiff allegations made in the written statement, which were contrary to the facts pleaded in the plaint were denied and it was reiterated that agreed sale consideration was Rs. 85,000/- and not Rs. 2.85 lacs, as alleged. All other averments to the contrary were denied. 9. On the aforesaid pleading of the parties, trial Court framed the following issues and decreed the suit after consideration of oral and documentary evidence and as already observed, the appeal filed by defendant was allowed, thus dismissing the suit, hence this appeal. 1. Whether consideration of the sale of the suit land vide agreement dated 24-12-1989 by defendant in favour of plaintiff was Rs. 85,000/- or 2,85,000/-? OPP 2. Whether the suit is within time? OPP 3. Whether the agreement dated 24-12-1989 for the sale of the suit property is void under the law, as alleged? OPD 4. Relief. 10. While referring to the pleadings of the parties, learned senior Counsel stated that so far pleas of fraud and misrepresentation is concerned, those are without any basis. According to him in case defendant wanted to take the pleas of fraud and misrepresentation, those pleas ought to have been brought up in the plaint in accordance with the provisions of Order VI, Rule 4, C.P.C. While referring to the plaint, he pointed out that except for alleging that facts were misrepresented to her and fraud has been played, how and in what manner, there are no facts specifically pleaded. Learned counsel for the defendant submitted that so far his client is concerned, she has stated that in the agreement consideration was got wrongly mentioned as Rs. 85,000/- instead of 2,85,000/-. However, when a reference is made to plaintiffs cross-examination, nothing has been extracted so as to dislodge what he stated in his examination in chief on the agreed consideration as stated by the plaintiff. Plaintiff has proved Ex. P.W. 1/A as well as has readiness to perform his part of the agreement. 11. Cherring Ram (P.W. 2) is the scribe. According to him this agreement Ex. P.W. 2/A was scribed by him at the instance of the parties and thereafter it was read over and explained to them, who after admitting the contents thereof executed the same. P.W. 1/A as well as has readiness to perform his part of the agreement. 11. Cherring Ram (P.W. 2) is the scribe. According to him this agreement Ex. P.W. 2/A was scribed by him at the instance of the parties and thereafter it was read over and explained to them, who after admitting the contents thereof executed the same. According to him Sohan Lal, D.W. 2 Mani Kumar were the marginal witnesses in whose presence after admitting the execution and correctness of the contents of P.W. 2A, parties entered into it. 12. P. W. 3 is Sohan Lal who in the like manner has supported the case of the plaintiff in its entirety and has withstood the test of cross-examination on behalf of the defendant. 13. On the other hand, defendant as D.W. 1 has appeared as her own witness and has stated that she was duped by showing consideration of Rs. 85,000/- in Ex. P. W. 2/A instead of Rs. 2,85,000/- which was agreed to between the plaintiff and defendant. In this behalf it may be worthwhile to notice that she has admitted all the contents of this agreement except sale consideration. She also does not dispute the execution of this agreement. 14. So far D.W. 2 is concerned, he while admitting himself to be the marginal witness along with P. W. 3 has also proved all the contents of Ex. P. W. 2/A and has thus reinforced as well as supported the case of the plaintiff out and out. 15. Ex. PA is the copy of jamabandi. In this document there is a note in the column of remarks which when translated into English and reads that land in question was allotted as landless vide Patta No. 2111/DC, dated 31st December, 1973 and its mutation No. 2555, dated 30th April, 1989 was accepted." This is the copy of jamabandi for the years 1990-91. Defendant has placed on record a copy of this very jamabandi which is Ex. DX. When reference is made to Ex.DX, there is no such note in Ex.DX. It also pertains to the year 1991. There is another note that this Nautor cannot be transferred for 20 years. 16. Defendant has placed on record Ex. DX, certified copy of Nautor order passed by Sub-Divisional Officer, (C) Kullu on 31st December, 1973. DX. When reference is made to Ex.DX, there is no such note in Ex.DX. It also pertains to the year 1991. There is another note that this Nautor cannot be transferred for 20 years. 16. Defendant has placed on record Ex. DX, certified copy of Nautor order passed by Sub-Divisional Officer, (C) Kullu on 31st December, 1973. This shows that the land in question was sanctioned by way of Nautor in favour of husband of the defendant. 17. In this behalf, learned Counsel for the parties were not at variance that in the year 1973 when this Nautor was sanctioned in favour of the husband of the plaintiff, Himachal Pradesh Nautor Rules, 1968 were applicable and the grant of this Nautor in favour of the deceased husband of the defendant were governed by these rules. 18. Another document that needs to be noted here is Ex. PB. This is a copy of mutation of the grant of Nautor in favour of the defendant. When a reference is made to it, there is no such note as contained either in Ex.PA or Ex.Dy. referred to hereinabove. 19. Under Himachal Pradesh Nautor Rules, 1968, grant could be made. This is followed by issuance of a patta which is a document of title. Admittedly, husband of the defendant was granted Nautor in 1973. Thus it can safely be presumed that Patta under the Rules must have been issued to him. That Patta admittedly has not been placed on record by the defendant; why and for what reasons, her learned Counsel was not in a position to explain. Though he submitted that mere non production of Patta is of no consequence. By referring to the form of Patta, which is issued in Form D attached to the Nautor Rules, 1968, he stated that the grant was subject to clause 4(h) thereof and thus his client could not have agreed to alienate the suit land in favour of the plaintiff. Therefore, he prayed for upholding the judgment of the lower appellate Court while dismissing the present appeal. 20. Learned senior Counsel appearing for the plaintiff made another submission that land in question was not allotted as landless person as per scheme framed by the State Government. Therefore, he prayed for upholding the judgment of the lower appellate Court while dismissing the present appeal. 20. Learned senior Counsel appearing for the plaintiff made another submission that land in question was not allotted as landless person as per scheme framed by the State Government. This Scheme was pressed into service on behalf of the defendant as according to him Himachal Pradesh Grant of Nautor Land to Landless Persons and other Eligible Persons Scheme, 1975, issued vide Revenue Department Notification No. 9-14/75-Rev. A was not in existence, therefore, this grant was not in favour of deceased husband of the defendant under this Scheme of 1975. 21. On the basis of the evidence on record, I am satisfied that agreed sale consideration between the parties was Rs. 85,000/- and not Rs. 2, 85,000/- as claimed by the defendant. This plea, in my considered view, has been put up as an afterthought for the reasons best known to the defendant. One possible (reason) can be that price of the property might have shot up meanwhile. Scribe P.W. 2, coupled with the marginal witnesses and the plaintiff have not only supported the plaintiffs case, but have conclusively proved Ex. P.W. 2/A, the agreement in question. Even its execution is not denied by defendant except for sale consideration as noted hereinabove. In this behalf, when a reference is made to the judgment of the lower appellate Court, it appears that it has taken into account wholly irrelevant and extraneous considerations. It seems to have been impressed by factors which had no relevance and as already noted, there is no pleading of fraud etc., as required under law and also there is no evidence which can be taken note of on this count. Therefore, the plea set up on behalf of the defendant by her learned Counsel and which seems to have prevailed with the learned appellate Court below is based on improper acceptance of evidence and is, therefore, liable to be reversed. 22. Similarly, there is overwhelming evidence on record in the shape of the pleadings, statement of PWs 1 to 3 and DW-2, besides Ex. PW-1/A, the notice to strengthen the case of the plaintiff that he was ready and willing to perform his part of agreement by getting the sale deed executed as well as registration on payment of the balance consideration. 23. PW-1/A, the notice to strengthen the case of the plaintiff that he was ready and willing to perform his part of agreement by getting the sale deed executed as well as registration on payment of the balance consideration. 23. Now the substantial questions of law referred to hereinabove will be dealt with. 24. So far question No. 1 is concerned, as already noted, Nautor in question was granted under the Rules of 1968 supra. There is nothing on record to suggest that in the Patta that was issued after the grant of this Nautor under relevant rules, there was any prohibition for the owner to alienate the same. Even if it is assumed for the sake of argument that there was any such restriction, then as per clause 4(h) of the Patta in Form D, the grantee or his successors-in-interest could not transfer the land allotted within a period of 15 years. This grant is of 31st December, 1973. This prohibition ceased to exist on 30th December, 1988. 25. At the risk of repetition, it may be noted here that Scheme of 1975, referred to hereinabove, is wholly inapplicable in the facts and circumstances of the present case as it was not in existence when the grant was made. Therefore, the note of 20 years in Ex. DY and land having been allotted to the plaintiff as landless is without any basis either in law or materials on record. 26. Another reason to take this view is that real position would have come to light in case defendant had produced either the original Patta or its certified copy after the grant of land to her husband in terms of Ex. DX on 31-12-1973. That having not been produced, I have no hesitation in drawing adverse inference against the defendant that had it been produced it would not have supported her plea of there being any embargo on the right of either her husband and after him on her to alienate the land in question. Even at the time of hearing, learned counsel was not in a position to show anything in that behalf. In addition to this in the mutation, there is no mention of any restriction on the alienation of land or the same having been granted as landless person, as noted in Ex. PA. 27. Even at the time of hearing, learned counsel was not in a position to show anything in that behalf. In addition to this in the mutation, there is no mention of any restriction on the alienation of land or the same having been granted as landless person, as noted in Ex. PA. 27. Thus, the land having been allotted under the Nautor Rules, 1968 and there being nothing on record to hold that there was any embargo and alternatively, even if it is assumed for the sake of argument that there was any embargo, it came to an end on 30th December, 1988, thus the agreement Ex. PW-2/A was rightly and legitimately entered upon between the parties and the plaintiff is held entitled to its specific performance. 28. So far question No. 2, supra, is concerned; it has become redundant for the reasons set out while dealing with question No. 1. 29. Once it has been held under question No. 1 above that the embargo against alienation came to an end on 31st December, 1988 and the agreement, Ex. PW-2/A having been entered upon between the parties after almost an year thereof, its specific performance could not be denied in favour of the plaintiff and against the defendant. Thus, this question is answered in favour of the plaintiff and against the defendant. 30. In view of the evidence discussed hereinabove and conclusions arrived at, inferences drawn by the appellate Court below, particularly regarding Ex. DW-2/A being heavily inclined in favour of the plaintiff and at the same time having discarded the statement of DW-2 cannot be supported. Such observations and findings are based on no evidence and conclusions in that behalf could not have been arrived at on appreciation of evidence both, oral as well as documentary which, in my view, are nothing but perverse. In fact, while allowing the appeal, lower Court has totally misdirected itself in recording those findings. Question No. 4 is answered accordingly. 31. Question No. 5 in the circumstances of this case needs to be answered against the defendant and in favour of the plaintiff. Reason being that mere inadequacy of price is no ground. Besides this, Ex. PW-2/A has been accepted to be a legally and validly executed document between the parties of their free will and volition. 31. Question No. 5 in the circumstances of this case needs to be answered against the defendant and in favour of the plaintiff. Reason being that mere inadequacy of price is no ground. Besides this, Ex. PW-2/A has been accepted to be a legally and validly executed document between the parties of their free will and volition. As such the lower appellate Court travelled beyond the scope of its jurisdiction while deducing that the market value, which it was not called upon to decide nor was the subject-matter of the suit. Thus, the findings in this behalf recorded in the impugned judgment and decree by the appellate Court below cannot be sustained. 32. Faced with this situation, learned counsel for the defendant stated that findings recorded by the appellate Court below are pure findings of fact which need to be upheld and this Court in exercise of its powers under Section 100, C.P.C. will be exceeding its jurisdiction as well as authority by interfering with such findings. Ordinarily, this submission should have prevailed with the Court. However, in view of what facts and circumstances discussed hereinabove, as well as for the reasons to be recorded hereinafter, this plea is hereby rejected. 33. No doubt this Court ordinarily would not interfere with the findings of fact as the appellate Court below is final Court of fact. Similarly, if this Court on re-appreciation of evidence takes a different view, that by itself is no ground to interfere with the findings of fact recorded by the first appellate Court while dealing with appeal under Section 100, C.P.C. 34. But when this Court is satisfied that on the basis of evidence on record, conclusion could not have been arrived at by the appellate Court below and taking a very liberal view of Section 100, C.P.C. such findings are not supportable, then this Court is not precluded from interfering with such findings. This is exactly the situation in the present case. Besides this I am further satisfied that findings recorded by the first appellate Court are based on mere imagination and surmises being not based on legally acceptable evidence. 35. In State of Rajasthan v. Harphool Singh (dead) through his LRs (200) 5 SCC 652, Supreme Court after examining the evidence upset the findings recorded by the trial Court, which were upheld in first appeal as well as in second appeal by the High Court. 35. In State of Rajasthan v. Harphool Singh (dead) through his LRs (200) 5 SCC 652, Supreme Court after examining the evidence upset the findings recorded by the trial Court, which were upheld in first appeal as well as in second appeal by the High Court. And after consideration of the evidence allowed the appeal of the State and thus held that plaintiff could not be held to have substantiated his claim of perfection of title by adverse possession to the public property. 36. In Hafazat Hussain s/o Mubarak Hussain v. Abdul Majeed, s/o Wali Mohd. Alias Sheikh Ballan, (2001) 7 SCC 189 : (AIR 2001 SC 3201), it was held as under :- "8. We have carefully considered the submissions of the learned counsel appearing on either side. No doubt, it has been repeatedly pointed out by this Court that concurrent findings recorded by the trial Judge as well as the Ist Appellate Judge on proper appreciation of the materials on record should not be disturbed by the High Court, while exercising second appellate jurisdiction, but at the same time, it is not an absolute rule to be applied universally and invariably since the exceptions to the same also were often indicated with equal importance by this Court, and instances are innumerable where despite such need and necessity warranting such interference, if the second appellate Court mechanically declined to interfere, the matter has been even relegated by this Court to the second appellate Court to properly deal with the claims of parties in the second appeal objectively keeping in view the parameters of consideration for interference under Section 100 of the Civil Procedure Code. Therefore, it becomes necessary to see whether the learned single Judge in the High Court has trangressed the permissible limits." Applying the ratio of both these decisions to the materials on record, I have no hesitation to reiterate at the risk of repetition that findings recorded by the appellate Court below are not supportable and thus could not have been recorded on the basis of materials on record. 37. No other point is urged. 38. 37. No other point is urged. 38. In view of the aforesaid discussion, this appeal is allowed and as a consequence of it judgment and decree passed by the first appellate Court in Civil Appeal No. 4/97, dated 7-7-1997, in case Smt. Solma v. Ishari Lal is hereby set aside and thereby judgment and decree passed by the trial Court in Civil Suit No. 285/92, dated 29-10-1996, Ishari Lal v. Solma, is restored so far the suit property is concerned, decree sheet be drawn accordingly. Costs on the parties. Appeal allowed.