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Madhya Pradesh High Court · body

2005 DIGILAW 153 (MP)

Gaya Prasad v. Banmali

2005-02-02

S.K.PANDE

body2005
JUDGMENT 1. Being aggrieved by the judgment-decree dated 8,8.1990, passed by II Additional District Judge, Damoh in C.A. No.1-N88, reversing the judgment-decree dated 7.9.1987, passed by 5 Civil Judge Class II, Damoh in C.S. No. 15-A/86; defendant-appellant has preferred this appeal under section 100 CPC, 2. The appeal has been heard on the following substantial questions of law: "(1) Whether the finding of the lower appellate Court that the defendant had agreed to sell the suit land to the plaintiff on 15.4.1980 and received Rs. 2,100/- as earnest money and Exhibit P-1 Chithi is not forged and fabricated document 'are perverse or at least quite unreasonable ? (2) Whether because of plaintiff's failure to appeal against the grant of compensatory cost, the other findings of the trial Court could not be set aside? (3) Whether the entire proceedings of the trial Court and lower appellate Court are null and void because of non-compliance of Order 1 Rule 3B and Order 6 Rule 4-A CPC ?" 3. Appellants are legal representatives of original defendant Late Gayaprasad. Plaintiff-respondent instituted C.S. No. 15-A/86 before the Civil Judge for specific performance of contract of sale of suit land Khasra No. 25/2, area 1.667 hectare, Tahsil Damoh on the ground that original defendant Late Gayaprasad on 15.4.1980 agreed to sell the suit land for Rs. 3,000/-. Having accepted part payment of Rs. 2,100/executed the agreement (Exhibit P-1) agreeing to execute the registered sale deed on receipt of balance sum of Rs. 900/-. Original defendant Late Gayaprasad subsequently resiled from the promise. The suit was resisted' on the ground that Karan Singh, father-in-law of plaintiff respondent is notorious person of a criminal record. Karan Singh was related to the then Sarpanch of Gram Panchayai. To avoid any adverse comment against his relative, Karan Singh obtained a contract in the name of defendant Late Gayaprasad for construction of school building. The amount and grain in connection with said contract was received by Karan Singh on the basis of signature of defendant Late Gayaprasad on blank papers, on which Karan Singh used to scribe receipt at the time of receiving payment either in cash or in the shape of grain. Karan Singh since had earned profit in the said contract, defendant Late Gayaprasad asked him some money out of profit as the contract was taken in his name. Karan Singh since had earned profit in the said contract, defendant Late Gayaprasad asked him some money out of profit as the contract was taken in his name. On such a demand, Karan Singh became annoyed and got fabricated the alleged agreement dated 15.4.1980 (exhibit P-1) on one of the blank papers signed by defendant Late Gayaprasad. On the basis plaintiff-respondent in collusion with his father-in-law Karan Singh, who is habitual litigant and party in several civil and criminal cases falsely instituted the suit for specific performance of contract. Defendant Late Gayaprasad infact purchased the suit land vide registered sale deeds dated 16.5.1967 and 17.10.1969 for total sum of Rs. 4,500/-. Suit land for sale in any case on 15.4.1980 could not have been offered for Rs; 3,000/- only. The Civil Judge in C.S. No. 15-A/86 vide judgment dated 7.9.1987 held that the alleged agreement dated 15.4.1980 (Ex. P-1) is forged one. Karan Singh, father-in-law of plaintiff-respondent using the paper said to have been signed by defendant-late Gayaprasad in relation to receive payment of contract of construction of school, got executed as an agreement to sell the suit land. On the basis aforesaid, plaintiff respondent falsely instituted the suit for specific performance of contract. Therefore, directing the defendant-respondent to pay compensatory cost, dismissed the suit. Being aggrieved, plaintiff-respondent preferred C.A. No. 1-A/88 before II ADJ, Damoh. The Court below accepting the contention that defendant Late Gayaprasad agreed to sell the suit land vide agreement dated 15.4.1980 (exhibit P-1) set aside the judgment-decree passed by Civil Judge in C.S. No. 15-A/86, instead decreed the suit for specific performance directing defendant. Late Gayaprasad to execute registered sale deed of suit land in favour of plaintiff-respondent. Being aggrieved, defendant Late Gayaprasad preferred this appeal under section 100 CPC. Defendant Late Gayaprasad since died, appellants being LRs have been brought on record. 4. It is contended that the findings of the lower appellate Court that defendant Late Gayaprasad had agreed to sell the suit land to the plaintiff-respondent on 15.4.1980 and received Rs. 2,100/- as earnest money and exhibit P-1 Chithi is not forged and fabricated document are perverse or at least quite unreasonable. Since plaintiff-respondent did not assail the order passed by Civil Judge granting compensatory cost, the other findings of the trial Court could not have been set aside. 2,100/- as earnest money and exhibit P-1 Chithi is not forged and fabricated document are perverse or at least quite unreasonable. Since plaintiff-respondent did not assail the order passed by Civil Judge granting compensatory cost, the other findings of the trial Court could not have been set aside. The entire proceedings of the trial Court and lower appellate Court are null and void because of non-compliance of Order 1 Rule 3-B and Order 6 Rule 4-A CPC. 5. With reference to Order 1 Rule 3-B and Order 6 Rule 4-A CPC (as amended by M.P. Act 19 of 1984), plaintiff-respondent was required to implead State of M.P. as a party to the suit. However, for non-compliance, the suit would not entail dismissal. In Brijraj Singh and others v. Bitto Devi (Smt.) and another [ 1993 JLJ 467 = 1994 MPLJ 192 ] a Division Bench of this Court held: "The non-compliance with the provisions contained in Order 1, Rule 3-B of the Code of Civil Procedure as amended by M.P. Act 19 of 1984 does not create jurisdictional incompetence in the Code hearing the suit or appeal solely on account of non-compliance therewith. The defect as to non-compliance with the provisions contained in Order 1, Rule 3-B can be rectified by joining the State as party to the proceedings and noticing it at that very stage at which the defect is detected or pointed out to the Court. The party on whom lies the primary duty of impleading the State as party to the case having defaulted in doing so, cannot plead the defect at subsequent stage of the proceedings to its own advantage so as to get rid of a decree against it, otherwise well merited. No such decree shall be set aside unless the State be in a position to point out that merits of the case or jurisdiction of the Court has been affected on account of non-compliance with the provisions contained in Order 1, Rule 3-B and Order 6 Rule 4-A Civil Procedure Code." Therefore, the interim proceedings of the trial Court and lower appellate Court cannot be said to be null and void because of non-compliance of Order 1 Rule 3B and Order 6 Rule 4A CPC. Consequent to dismissal of suit, the Civil Judge in C.S. No. 15-A/86 vide judgment dated 7.9.1987 directed plaintiff-respondent to pay compensatory, cost Rs. 200/- to defendant Late Gayaprasad. Consequent to dismissal of suit, the Civil Judge in C.S. No. 15-A/86 vide judgment dated 7.9.1987 directed plaintiff-respondent to pay compensatory, cost Rs. 200/- to defendant Late Gayaprasad. Since the judgment as a whole has been assailed by the plaintiff-respondent in C.A. No. 1-A/88, it cannot be said that failure to appeal against grant. of compensatory cost, the other findings of the trial Court could not have been set aside. 6. The case of the plaintiff-respondent is that original defendant Late Gayaprasad agreed to sell the suit land Khasra No. 25/2, area 1.667 hectares for a sum of Rs. 3,000/- having received Rs. 2,100/- agreed to execute the registered sale deed on receipt of balance sum of Rs. 900/- Defendant Late Gayaprasad resisting the suit inter alia that Karan Singh is father-in-law of plaintiff-respondent Banmali. Plaintiff-respondent Banmali is resident of village Bila Khurd, Tahsil Hatta. He had no house or agricultural holding at village Parasari, Tahsil Damh. Defendant Late Gayaprasad and Karan Singh, father-in-law of plaintiff-respondent were in good terms. The then Sarpanch of the Gram Panchayat was a close relative of Karan Singh. As such, Karan Singh could not have taken the contract of construction of the school building. Karan Singh obtained the contract in the name of defendant Late Gayaprasad. For purpose of receiving payment and grain towards the work of alleged construction, Karan Singh. was obtaining signature of Late Gayaprasad on blank papers. These papers were subsequently used as receipt of payment and grain from the Gram Panchayat. Since Karan Singh earned profit, defendant Late Gayaprasad asked him to give some money out of profit as the contract of alleged construction of school building was taken in his name. Karan Singh, father-in-law of plaintiff-respondent became annoyed and got fabricated the alleged agreement dated 15.4.1980 (exhibit P-1) on a blank paper containing signature of defendant Late Gayaprasad. Appellants alongwith application under Order 41 Rule 27 CPC filed registered sale deed dated 16.5.1967 and 17.10.1969 to state that suit land measuring 4.12 acres (1.667 hectare) was purchased for a sum of Rs. 4,500/-. The fact of purchase of suit land vide registered sale deeds dated 16.5.1967 and 17.10.1969 has not been disputed by the plaintiff respondent. Therefore, the fact of purchasing suit land for a sum of Rs. 4,500/- vide registered sale deeds dated 16.5.1967 and 17.10.1969 is not in dispute. 4,500/-. The fact of purchase of suit land vide registered sale deeds dated 16.5.1967 and 17.10.1969 has not been disputed by the plaintiff respondent. Therefore, the fact of purchasing suit land for a sum of Rs. 4,500/- vide registered sale deeds dated 16.5.1967 and 17.10.1969 is not in dispute. Judicial notice given and should betaken of the fact of continuous rising inflation and rising land values. On the basis, it is contended that defendant Late Gayaprasad could not have offered suit land measuring 4.12 acres (1.667 hectares) for sale for a sum of Rs. 3,000/- only. No special circumstances for alleged sale for a sum of Rs. 3,000/- less than the price paid by defendant Late Gayaprasad has been explained by PW 1 Banmali. 7. PW 1 Banmali has stated that having agreed to sell the suit land for a sum of Rs. 3,000/-, defendant Late Gayaprasad received Rs.2,100/- as earnest money. He agreed to execute the registered sale deed on receipt of balance sum of Rs. 900/-. Defendant Late Gayaprasad executed agreement exhibit P-1. PW 4 Karan Singh, father-in-law of plaintiff-respondent PW 1 Banmali and PW 3 Ramprasad are neither scribe nor attesting witness of alleged agreement (exhibit P-1) said to have been executed and signed by defendant Late Gayaprasad. PW 4 Karan Singh, father-in-law of plaintiff-respondent in cross-examination has admitted that he was facing trial in several civil and criminal cases. This speaks of the notorious character of PW 4 Karan Singh, father-in-law of plaintiff-respondent PW 1 Banmali, PW 1 Banmali, PW 4 Karan Singh have admitted that plaintiff-respondent had no house or agricultural land at village Parasari, he is resident of distant village Bila Khurd, Tahsil Hatta, as to how he was interested in purchasing agricultural land at village Parasari. DW 1 Gayaprasad has stated that contract of construction of school building was taken by PW 4 Karan Singh in his name. For obtaining payment and grain, Karan Singh was taking his signature on blank papers to be used as receipt of payment from Gram Panchayat. DW 1 Gayaprasad has further stated that he is illiterate and does not know reading and writing. Remaining in confidence-influence of PW 4 Karan Singh, he was signing the blank papers for use by Karan Singh. One of such blank paper containing signature was converted into the alleged agreement dated 15.4.1980 (exhibit P-1). DW 1 Gayaprasad has further stated that he is illiterate and does not know reading and writing. Remaining in confidence-influence of PW 4 Karan Singh, he was signing the blank papers for use by Karan Singh. One of such blank paper containing signature was converted into the alleged agreement dated 15.4.1980 (exhibit P-1). Statement of DW 1 Gayaprasad is supported by PW 5 Raghuveer Singh, Sarpanch. This witness has stated that contract of construction of school building was in the name of defendant Late Gayaprasad. The construction work was carried out and looked after by PW 4 Karan Singh. PW 4 Karan Singh was receiving the payment of work done on the basis of receipt bearing signature of DW 1 Gayaprasad. Above the signature of defendant Late Gayaprasad, the writing in exhibit D-11, D-12, D-13 'A' to 'A' is of PW 4 Karan Singh. PW 4 Karan Singh in cross-examination para 4 has admitted his writing 'A' to 'A' on exhibit D-11, D-12•and D-13. DW 5 Raghuveer also has referred to the register (exhibit D-14) maintained by the Gram Panchayat in respect of construction of school building. This witness has stated that 'B' to 'B' writing and signature 'A' to 'A' of PW 4 Karan Singh is to the effect of performing contract of construction and receipt of payment from Gram Panchayat. It is contended that the contract was taken in the name of defendant Late Gayaprasad. The scribe of exhibit P-1, PW 2 Jhanku, a Dalit by caste was examined on 21.5.1985 and thereafterfiling application dated 8.10.1986, plaintiff-respondent submitted that the witness being not traceable cannot be produced before Court for cross-examination by defendant Late Gayaprasad. PW 2 Jhanku has stated that he does not know whether defendant Late Gayaprasad sold the suit land to the plaintiff-respondent Banmali. This witness has. further stated that he was an employee of PW 4 Karan Singh. As told by Karan Singh and plaintiff-respondent Banmali, the matter of exhibit P-l was written by him. This statement of PW 2 Jhanku cannot be said to be evidence of due execution of alleged agreement dated 15.4.1980 (exhibit P-l) agreeing to sell the suit land for a sum of Rs. 3,0001-. The other attesting witness of exhibit P-l is said to be Kalu, Sio Heeralal Khangar, Rio Mahandpur. Plaintiffrespondent did not produce this witness to state due execution of alleged agreement dated 15.4.1980. 3,0001-. The other attesting witness of exhibit P-l is said to be Kalu, Sio Heeralal Khangar, Rio Mahandpur. Plaintiffrespondent did not produce this witness to state due execution of alleged agreement dated 15.4.1980. Instead DW 2 R.C. Jain, Advocate (Notary) has stated that Jhanku (PW 2) and Kulu, Sio Heeralal deposed on oath, their statement contained in exhibit D-9 and D-lO. In these statements, Jhanku (DW 2) and Kalu, the attesting witness have stated that defendant Late Gayaprasad never agreed to sell the suit land to the plaintiff-respondent in their presence and such an agreement was never arrived nor signed b~ defendant Late Gayaprasad. 8. On the basis of evidence aforesaid, the Civil Judge vide judgment dated 7.9.1987 dismissed the suit C.S. No. 15-A/86. The same evidence has been recorded by the lower Appellate Court in C.A. No. 1-A/88. The lower appellate Court believing the statement of PW 1 Banmali held that agreement dated 15.4.1980 (exhibit P-1) was executed by defendant Late Gayaprasad. As such, allowing the appeal set aside the judgment-decree passed by Civil Judge instead decreed the suit seeking specific performance directing defendant Late Gayaprasad to execute the registered sale deed. There is no blanket bar in law to the High Court's power in Second Appeal to interfere with the finding of fact recorded by lower appellate Court. If the appreciation of evidence made by it is patently erroneous and the finding recorded in consequence is grossly erroneous and on account of ignoring the weight of evidence on record altogether, the High Court would be justified in reappraising the evidence and giving its own conclusion. In Ishwardas Jain (dead) through LRs v. Sohanlal (dead) by LRs. (2000) 1 SCC 434 ] the apex Court has held: "Under section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate Court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered, which if considered, would have led to an opposite conclusion. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered, which if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise." A single Bench of this Court also in Gappulal Meena and others v. Gajanand and others [2001 RN 136 = 2001(1) MPLJ 697 ] held: "The apex Court in the case of Ishwar Das Jain v. Sohanlal (supra) had observed that in second appeal, interference with findings of fact is permissible, when material or relevant evidence is not considered, which if considered, would have led to opposite conclusion. Similarly in the case Rohini Prasad v. Kasturchand reported in (2000) 3 SCC 668 , it was pointed out that where misreading of evidence by appellate Court would lead to miscarriage of justice or its finding is based on no evidence and thus, perverse, High Court would be justified in interfering in Second Appeal." 9. In any case, the first appellate Court ought not to have read the statement of Jhanku to state that defendant Late Gayaprasad agreed to sell the suit land and executed agreement dated 15.4.1980 (exhibit P-1). This witness was not produced for cross-examination and by exhibit D-9, affidavit, the witness categorically deposed before the Notary DW 2 R.C. Jain that in his presence, there was no talk of sale of suit land by defendant Late Gayaprasad to plaintiff-respondent Banmali. Even in examination-in-chief, the witness has stated that he was servant of PW 4 Karan Singh, a man known for his notorious activities. As told by PW 4 Karan Singh and PW 1 Banmali, his son-in-law, the writing above the signature 'A' to 'A' on exhibit P-1 was written by the witness. The attesting witness Kalu, S/o Heeralal was not examined. He also in his affidavit (exhibit D-10) has stated that no such agreement in his presence was arrived at. He was indebted to PW 4 Karan Singh and as directed, signed the document exhibit P-1. 10. The attesting witness Kalu, S/o Heeralal was not examined. He also in his affidavit (exhibit D-10) has stated that no such agreement in his presence was arrived at. He was indebted to PW 4 Karan Singh and as directed, signed the document exhibit P-1. 10. The first appellate Court grossly misread the evidence so as to arrive at a conclusion that on the basis of exhibit P-1, suit seeking specific performance of contract directing defendant Late Gayaprasad to execute registered sale deed could be decreed. The findings arrived at by lower appellate Court by reappraisal of evidence are perverse and quite unreasonable. 11. Consequently, appeal succeeds and is allowed. Setting aside the judgment-decree passed by lower Appellate Court in C.A. No. 1-A/88, the suit C.S. No. 15-A/86 of plaintiff-respondent seeking specific performance of contract of sale of suit land stands dismissed. Plaintiff respondent shall bear his cost and pay the cost of defendant-appellants. Counsel fee as per rule or certificate (whichever is less). ......................