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2004 DIGILAW 604 (ALL)

RAM SAHAI v. RAM CHANDRA

2004-03-18

TARUN AGARWALA

body2004
TARUN AGARWALA, J. The plaintiffs filed a suit for specific performance of an agreement to sell dated 18-6-1975, whereby the defendant had agreed to sell his 1/6 share of the plot in question in favour of the plaintiffs for a consideration of Rs. 12,000. 00. The plaintiffs contended that they had paid a sum of Rs. 8,000. 00 at the time of execution of the agreement and the balance Rs. 4,000. 00 was required to be paid at the time of the execution of the sale deed. It was alleged that the plaintiffs were always ready and willing to perform their part of the agreement. On the other hand, the defendants were resilling from the agreement and failed to execute the sale deed inspite of repeated demands, hence the suit. 2. The defendants contended that he had never executed any agreement to sell in favour of the plaintiffs and alleged that the plaintiffs were money lenders and in that connection he had borrowed a sum of Rs. 300 or Rs. 400 after putting signatures and thumb impression on blank stamp papers. The defendants contended that he had repaid the loan and that the plaintiffs did not return the blank papers inspite of the repayment of the loan. The defendants further contended that the plaintiffs had prepared a forged agreement to sell, which was not binding upon the defendant and that the plaintiffs had no right to file the suit for specific performance. The defendant further alleged that if the suit was decreed, the defendants would suffer great hardship as the land in question was the only piece of land owned by him and was the only source of his livelihood. 3. The trial Court after framing various issues decreed the suit of the plaintiffs holding that the defendants himself had purchased the stamp papers and had executed the agreement. The trial Court further found that the execution of the agreement had been duly proved by the scribe and by the witness to the said agreement. The trial Court disbelieved the scribe contention of the defendants that he had taken a loan from the plaintiffs and that the plaintiffs had obtained his signatures or thumb impressions on plain papers. The trial Court further found that the execution of the agreement had been duly proved by the scribe and by the witness to the said agreement. The trial Court disbelieved the scribe contention of the defendants that he had taken a loan from the plaintiffs and that the plaintiffs had obtained his signatures or thumb impressions on plain papers. The trial Court held that the defendants validly executed the agreement to all in favour of the plaintiffs and had understood the contents written in the agreement and had agreed to transfer his share in the plot for a consideration of Rs. 12,000. 00 after receiving Rs. 8,000. 00 as earnest money. Accordingly the trial Court decreed the suit and directed the defendants to execute the sale deed after accepting the balance consideration of Rs. 4,000. 00 and deliver the possession to the plaintiffs failing which an option was given to the plaintiffs to get the sale deed executed through the process of the Court. 4. Aggrieved by the aforesaid decision of the trial Court, the defendants filed an appeal, which was dismissed by the lower appellate Court. The appellate Court further found that the defendant was a literate villager, and knew how to make his own signatures and that he knowingly executed the agreement to sell. 5. The defendants being aggrieved by the aforesaid decisions of the Court below has now preferred the present Second Appeal. At the time of the admission of the appeal, several questions of law were framed. However, at the time of the hearing of the appeal the only point argued by the appellant on the question of law was that the suit could not be decreed on account of hardship being faced by the defendant and the Court below should have only passed an order for refund of the amount. 6. Heard Sri V. S. Chaudhary, the learned Counsel for the appellant and Sri V. K. Agarwal, the learned Counsel for the plaintiffs respondents. 7. It was urged that the plot in question was the only source of livelihood of the defendants and therefore, by decreeing the suit, the defendants would be forced to sell the only piece of land which he owns which would entail hardship. 8. 7. It was urged that the plot in question was the only source of livelihood of the defendants and therefore, by decreeing the suit, the defendants would be forced to sell the only piece of land which he owns which would entail hardship. 8. The lower appellate Court held that even though the plot in question may have been the only source of livelihood for the defendant, yet the defendant appellant executed the agreement to sell with a view to raise money to meet his needs. Since the defendants had executed a valid agreement and had received the consideration in part, the appellate Court refused to interfere in the decree passed by the lower trial Court. 9. In my view, the taken by the lower appellate Court requires no interference. The defendant appellant had validly and knowingly executed the agreement to sell and had taken a sum of Rs. 8,000 as earnest money. The defendant himself had purchased the stamp papers. Both the Courts below disbelieved the stand taken by the defendants. The contention of the appellant that the suit could not be decreed on account of the hardship and only an order for refund of the amount should have been ordered is devoid of any merit. The appellant has nowhere stated that he has the requisite money to refund the amount taken as earnest money. The stand taken by the defendant does not appeal to be bona fide. On the other hand, the discretion exercised by the trial Court was not arbitrary but was sound and reasonable and was guided by judicial principles. The appellate Court has rightly confirmed the decree. The discretion exercised by both the Courts below being sound and reasonable requires no interference in the Second Appeal. 10. The Supreme Court in Kondiba Dagadu Kadam v. Savitri Bai Sopan Gujar and others, 1993 (3) SCC 722 held: "the High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusion drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of the leave applicable or its settled position on the basis of pronouncements made by the apex Court, or was based upon in admissible evidence or arrived at without evidence. " 11. " 11. Thus the finding arrived by the trial Court as well as by the appellate Court, being findings of fact requires no interference. Further, the discretion exercised by the Courts below was sound and reasonable and was not arbitrary. Therefore, this Court cannot substitute its opinion for the opinion of the lower appellate Court or of the trial Court. The present Second Appeal cannot be decided on mere equitable grounds. The concurrent findings of fact cannot be disturbed by the High Court in the limited exercise of its powers under Section 100 of the Code of Civil Procedure. No substantial question of law is involved in the present appeal, and is, therefore, dismissed with costs throughout. Appeal dismissed. .