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2008 DIGILAW 1950 (ALL)

Rama Shanker v. Ram Swaroop

2008-09-12

RAKESH SHARMA

body2008
JUDGMENT : Rakesh Sharma, J. Heard Mr. R.S. Tripathi, learned Counsel for the appellants and Mr. Umesh Kumar Srivastava, learned Counsel for the contesting respondents. 2. In the present case, both the courts below-trial court and the first appellate court have recorded concurrent findings of fact that the agreement to sale was not executable because of subsequent developments. 3. It is noteworthy that no substantial questions had been framed by the Court, while entertaining the appeal on 27.10.1980. The appeal is yet to be admitted for proceeding further. The appeal was filed after much delay and the same was time barred. This appeal was dismissed for non-prosecution on 24.9.2003 and on 5.3.2008, on the application submitted by the appellant, the appeal was restored and the same was ordered to be listed for admission. 4. This second appeal, assailing the judgment and decree dated 24.11.1979, passed by the IVth Additional District Judge, Unnao in R.C.A. No. 17 of 1978, Lala and Ors. v. Ram Swaroop, arising out of the judgment and decree dated 6.12.1977, passed by the Civil Judge, Unnao in R.S. No. 27 of 1975, Surendra Kumar and Ors. v. Ram Swaroop and Ors. dismissing the plaintiff-appellant's claim for specific performance of contract to sell the land, was presented before this Court for admission on 27.10.1980. There was deficiency in court-fees, as reported by the Stamp Reporter, and the same was made good on 28.10.1980. After long time, this appeal has come up for hearing on admission today. 5. It emerges from the record that one Chhotey Lal, F/o Surendra Kumar and Virendra Kumar, appellants-plaintiff Nos. 1/1 and 1/2, Lala and Smt. Chhanga filed suit against Ram Swarup, Raja Ram, Har Prasad and Raj Narain with the allegations that Ram Swarup was the bhumidhar of the plot Nos. 65, 68, 74, 47 and 48 (measuring 6 bigha and 3 biswa) situate in village Singarmau, Pargana Auras, Tehsil Hasanganj, District Unnao. The respondent/defendant No. 1 agreed to sell the aforesaid plots in suit in favour of Chhottey Lal, Lala and Smt. Chhanga for a price of Rs. 7,000 on 13.6.1975 and received Rs. 1,000 as earnest money. Chhotey Lal deceased-appellants/plaintiff No. 1 had settled the entire contract of sale with Ram Swarup, respondent/ defendant No. 1 and one agreement was executed by Ram Swarup in favour of appellants/plaintiffs on the same day. 7,000 on 13.6.1975 and received Rs. 1,000 as earnest money. Chhotey Lal deceased-appellants/plaintiff No. 1 had settled the entire contract of sale with Ram Swarup, respondent/ defendant No. 1 and one agreement was executed by Ram Swarup in favour of appellants/plaintiffs on the same day. Ram Swarup handed over the possession to the plaintiffs/appellants over the plots in suit on the same day. Since then the appellants/plaintiffs were in possession over the plots in suit. The respondent/defendant No. 1 had agreed to execute a sale deed in favour of the plaintiffs after obtaining permission from Settlement Officer, Consolidation, Unnao because village Singarmau was under consolidation operation. When the plaintiffs approached the defendant No. 1 he told that he had already moved an application for permission before the Settlement Officer of Consolidation, Unnao and after getting that permission, he would sell the plots in suit in favour of the plaintiffs/appellants. When the plaintiffs/appellants learnt that the respondent/defendant No. 1 was intending to sell the same plots in favour of respondent/defendant Nos. 2 to 4, they filed present suit against respondents/defendants Nos. 1 to 4. The appellants/plaintiffs prayed for specific performance /injunction restraining the respondent/defendant No. 1 from selling the plaints in suit in favour of the respondents/defendant Nos. 2 to 4 or any other person. In alternative the appellants /plaintiffs prayed for recovery of Rs. 1,000 which was prayed by them as earnest money to the respondent/defendant No. 1. During the pendency of the suit, the defendant No. 1 sold the plots in suit in favour of respondent/defendant Nos. 5 and 6, who were already related to respondents/defendant Nos. 2 to 4, hence they were also impleaded as respondents/ defendants. 6. As per findings, the defendants/respondents contested the suit, however, respondent/defend ant No. 1, owner of the aforementioned agricultural land, has admitted that he was bhumidhar of the said plot. However, according to him, he never agreed to sell the plots in dispute in favour of the plaintiffs/appellants and never received Rs. 1,000 or any amount as earnest money. He had never executed any agreement in favour of the appellants/plaintiffs. In fact, respondent/defendant No. 1 had executed an agreement in favour of the respondents/defendants No. 5 and 6 for selling the said plots and for which an advance was received and the permission was sought, from the Settlement Officer of Consolidation. 1,000 or any amount as earnest money. He had never executed any agreement in favour of the appellants/plaintiffs. In fact, respondent/defendant No. 1 had executed an agreement in favour of the respondents/defendants No. 5 and 6 for selling the said plots and for which an advance was received and the permission was sought, from the Settlement Officer of Consolidation. Respondents/defendants have contested the case, filed the written statement and put forthwith their pleadings. In view of the pleadings of the parties, following issues were framed by the trial court: (1) Whether the defendant No. 1 agreed to sell the land in dispute in favour of plaintiffs 2, 3 and Chhotey Lal for a sum of Rs. 7,000 as alleged ? (2) Whether the defendant No. 1 had executed an agreement to sell on 13.6.75 in favour of plaintiffs 2, 3 and Chhotey Lal deceased and received Rs. 100 as earnest money, as alleged ? (3) Whether the defendant No. 1 had delivered possession over the land in dispute to plaintiffs 2, 3 and Chhotey Lal, in part performance of the contract dated 13.6.75, as alleged ? (4) Whether the defendants No. 2 to 4 are unnecessary parties to the suit and if so, its effect? (5) Whether the defendant No. 1 put his signature on the agreement of the plaintiffs and Chhotey Lal in the circumstances as pleaded in paras 16 and 17 of his written statement ? If so, its effect ? (6) Whether the suit is undervalued and the court-fee paid is insufficient? (7) Whether the defendant No. 1 had agreed to sell the land in dispute, in favour of defendants 5 and 6 on 9.5.75 at Kanpur for a sum of Rs. 31,500 as alleged ? (8) Whether the defendant No. 1 executed an agreement to sell, on 10.5.75 in favour of the defendants 5 and 6, in respect of the land in dispute on receipt of Rs. 24,500 as earnest money ? (9) Whether the defendants 5 and 6 are in possession over the land in dispute? (10) Whether the defendants 5 and 6 had no notice of the agreement, if any, of the plaintiffs 2 and 3 and Chhotey Lal ? If so, its effect ? (11) To what relief, if any, are the plaintiffs entitled ? 7. (9) Whether the defendants 5 and 6 are in possession over the land in dispute? (10) Whether the defendants 5 and 6 had no notice of the agreement, if any, of the plaintiffs 2 and 3 and Chhotey Lal ? If so, its effect ? (11) To what relief, if any, are the plaintiffs entitled ? 7. After considering the evidence on record, the trial court/Civil Judge did not believe the case of the appellants/plaintiffs and dismissed the suit with costs, giving rise the cause of action to appellants /plaintiffs to prefer the first appeal against the judgment and decree dated 6.12.1977. The appeal was allowed with costs and the plaintiff was made entitled to recover Rs. 1,000 from the respondent/defendant No. 1. This judgment is under challenge in the second appeal. Following substantial questions of law were proposed by the counsel for the appellants at the time of presentation of the second appeal on 27.10.1980: (1) Whether the learned court below, after having found that Ram Swaroop defendant respondent No. 1 had agreed to sell the land in favour of the plaintiff appellant and had executed Ikrarnama dated 13.6.1975 Ext. 1 in appellants/plaintiffs' favour on record after having received Rs. 1,000 as earnest money and that Ext. 1 the agreement dated 10.5.75 relied by the defendant respondents was a false and forged document and that Ram Swaroop after agreeing to sell the land to appellant obtained S.O.C. permission, acted illegally in dismissing the plaintiffs claim for specific performance of contract to sell on the mistaken view of law to the effect during the pendency of the suit there had been some change in the plots on account of consolidation operation and agreement had become un-enforceable as he could not be enforced u/s 12 of the Specific Relief Act ? If so its effect and what relief is the plaintiff appellant entitled. If so its effect and what relief is the plaintiff appellant entitled. (2) Whether the rights which purchaser u/s 55 (b) (d) of Transfer of Property Act, gets and the liabilities that arise, under provision of Transfer of Property Act read with the contract for sell, against the seller in respect of land agreed to sell do not remain intact and did pass on in the land allotted in the chak of respondent in line of original plots u/s 30 of the Consolidation of Holdings Act and whether the lower appellate court acted illegally in refusing to grant the decree for specific performance on the basis of misconstruction of material provision of law relating to Specific Relief Act, Transfer of Property Act and the U.P. Consolidation of Holdings Act ? If so its effect? 8. When the learned Counsel for the appellant commenced arguments, in the pre-lunch session and on being pointed out that in view of the factual matrix of this case and the findings recorded by the courts below, these questions cannot be treated as substantial questions of law, learned Counsel for the appellants sought some time to add some more substantial questions and accordingly, following questions have been added: (3) Whether the plaintiff/ appellants are entitled, in view of the provisions contained in Section 12 (3) of the Specific Relief Act, to enforce the contract on the stipulated consideration with respect to only remaining plots, with the defendants and if the decree passed by the court below in not granting relief to above limited extent is legally sustainable ? (4) Whether the judgment and decree of the trial court is vitiated in view of the law laid down in Baikunthi Devi and Others Vs. Mahendra Nath and Another, (1977) 2 SCC 496 , and its affect ? 9. In this case, the appellant has not indicated the grounds in the memo of appeal, but only aforementioned substantial questions were added in the memo of appeal. It has been provided u/s 100 of C.P.C. that second appeal can only be admitted in cases, where substantial questions of law are involved. While admitting the second appeal, substantial questions have to be formulated by the Court with the assistance of the counsel for the appellant/s considering the material available on record. 10. It has been provided u/s 100 of C.P.C. that second appeal can only be admitted in cases, where substantial questions of law are involved. While admitting the second appeal, substantial questions have to be formulated by the Court with the assistance of the counsel for the appellant/s considering the material available on record. 10. The Hon'ble Apex Court in number of cases, has laid down guidelines for the Court to deal with such appeals at the admission stage. The Hon'ble Apex Court in Boodireddy Chandraiah and Others Vs. Arigela Laxmi and Another, (2007) 8 SCC 155 , has held as under: 11. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a Just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not ; the paramount over all consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. 11. The Hon'ble Apex Court also held in Govindaraju Vs. Mariamman, (2005) 2 SCC 500 , regarding substantial question of law and in this judgment, the Hon'ble Apex Court has placed reliance on an earlier judgment of the Apex Court in Santosh Hazari Vs. 11. The Hon'ble Apex Court also held in Govindaraju Vs. Mariamman, (2005) 2 SCC 500 , regarding substantial question of law and in this judgment, the Hon'ble Apex Court has placed reliance on an earlier judgment of the Apex Court in Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 3 SCC 179 , and held "A three Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari, after tracing the history of Section 100, the purpose which necessitated and persuaded the Law Commission of India to recommend for amendment of Section 100, concluded that scope of hearing of second appeal by the High Court is circumscribed by the questions formulated by the High Court at the time of admission of the appeal and the High Court has to hear the appeal on substantial questions of law involved in the case only. That the High Court would be at liberty to hear the appeal on any other substantial question of law, not earlier formulated by it, if the Court is satisfied of two conditions, i.e.: (i) the High Court feels satisfied that the case involves such question ; and (ii) the High Court records reasons for its satisfaction. 12. In other judgment also, the Apex Court held that the second appeal is to be admitted only in case the substantial question of law involved. The same principle has been laid down in Hero Vinoth (minor) Vs. Seshammal, (2006) 5 SCC 545 , Hence, in numerous Judgments of the Hon'ble Apex Court, it is mandatory for the High Court while admitting the second appeal for hearing to formulate the substantial question of law involved in the appeal and the appellant is also required to formulate the substantial question of law and the substantial question of law formulated by the appellant must fulfil the parameters laid down by the Apex Court. In the light of above, it is to be considered as to whether in the present appeal any substantial question of law is involved so as to admit the appeal for hearing. 13. This Court has perused the memo of appeal. The appellants are also required to place grounds in the memo appeal as well as to formulate substantial questions of law, which were to be scrutinized by the Court to frame proper/appropriate substantial questions of law. 14. 13. This Court has perused the memo of appeal. The appellants are also required to place grounds in the memo appeal as well as to formulate substantial questions of law, which were to be scrutinized by the Court to frame proper/appropriate substantial questions of law. 14. As far as substantial questions of law, as formulated by the learned Counsel for the appellant, in the opinion of the Court, none of these questions can be called as substantial questions of law. All these questions indicate mention of facts. These findings of facts and findings of facts have already been dealt with by the two courts below. All these questions require re-appreciation of facts and again delving into findings of facts, even on the basis of oral arguments of learned Counsel for the appellants that there are perversity of findings. In the light of submissions contained in this case, it cannot be said that the substantial questions of law are involved. 15. The Court put a query to the learned Counsel for the appellants that which are the specific substantial questions of law, which can be tested and scrutinized in the light of guidelines set out by the Hon'ble Apex Court and the provisions contained in Section 100 of the Code of Civil Procedure. 16. Sri R. S. Tripathi has laid much stress that all the questions formulated by him in the memo of appeal are substantial questions of law, but in the opinion of the Court, these are not substantial questions of law. Moreover, in view of the Order XLI, Rule 1 of C.P.C., the appellant/s is required to mention the grounds of appeal, but the appellant has not mentioned even a single ground in the memo of appeal, despite pendency of the litigation in this Court since 27.10.1980. The allegations contained in the memo of appeal, narration of events and the findings recorded by the courts below cannot be treated as substantial questions of law. The appellants, in support of their submission, have placed reliance on a decision of Baikunthi Devi and Others Vs. Mahendra Nath and Another, (1977) 2 SCC 496 17. Mr. Umesh Kumar Srivastava, learned Counsel appearing for the respondents has resisted the motion and has placed reliance on a decision of Piarey Lal Vs. Hori Lal, (1977) 2 SCC 221 . The appellants, in support of their submission, have placed reliance on a decision of Baikunthi Devi and Others Vs. Mahendra Nath and Another, (1977) 2 SCC 496 17. Mr. Umesh Kumar Srivastava, learned Counsel appearing for the respondents has resisted the motion and has placed reliance on a decision of Piarey Lal Vs. Hori Lal, (1977) 2 SCC 221 . In this appeal, the legal controversy raised, if any, has already been concluded and set at rest. According to him, both the courts below have recorded concurrent findings of fact that the agricultural land mentioned in the agreement to sale had come under consolidation operations and the chak was allotted to some other farmer. He has drawn the attention of the Court towards the Sections 54 and 56 (1) of Transfer of Property Act. The relevant para 5 of the said judgment, which, in fact, deals with the subject-matter in dispute, is quoted below: A cross-reference to Section 54 of the Transfer of Property Act shows that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It has however been specifically provided in the section that such a contract "does not, of itself, create any interest in or charge on such property." It would therefore, follow that the agreement for sale in the present case did not give rise to any interest "in" the original holding of the defendant as the tenure-holder. That being so, there could be no occasion for the transfer of any such liability "in" the new land or 'chak' of the defendant so as to attract Clause (b) of Section 30 of the Act. In fact what the defendant was bound to do u/s 55 (1) (d) of the Transfer of Property Act was to execute a proper conveyance of "the property" which was the subject-matter of the contract for sale, and not of any other property. In fact what the defendant was bound to do u/s 55 (1) (d) of the Transfer of Property Act was to execute a proper conveyance of "the property" which was the subject-matter of the contract for sale, and not of any other property. So when he lost that property as a result of the scheme of consolidation and his rights, title and interests ceased in that property by virtue of Clause (a) of Section 30 of the Act, the agreement for sale became void within the meaning of Section 56 of the Contract Act and it is futile to urge that they were saved by Clause (a) or Clause (b) of Section 30 of the Act. 18. Upon this, Shri R.S. Tripathi, learned Counsel for the appellant has submitted that the case of Piarey Lal Vs. Hori Lal, (supra), cited by the learned Counsel for the respondents was decided by Bench comprising two-Hon'ble Judges, while judgment pronounced in the case of Baikunthi Devi and Others Vs. Mahendra Nath and Another, (supra), relied upon by him was decided by three Hon'ble Judges. 19. This Court has compared these two judgments and has found that in the judgment cited by Mr. R. S. Tripathi, the chak, even after consolidation proceedings were over, had remained in possession of the author of the agreement to sale, whereas in the present case, the agricultural land/chak was allotted to some other farmer and the signatory landlord of the agreement had seized to have possession over the agricultural land, which was to be transferred to the appellants. A different chak was carved out by the consolidation authorities, after the consolidation operations, which in fact, admittedly commenced when the agreement to sale was executed. The parties were aware of these developments. 20. Learned Counsel for the respondents has drawn the attention of this Court towards the paragraphs 20, 21, 22 and 23 of the judgment rendered by the first appellate court dated 24.12.1979. All the points raised by the appellants, during the course of arguments, have already been dealt with by both the courts below and detailed findings and conclusions have been recorded, which are based on material on record and the evidence put forth by the contesting parties. 21. All the points raised by the appellants, during the course of arguments, have already been dealt with by both the courts below and detailed findings and conclusions have been recorded, which are based on material on record and the evidence put forth by the contesting parties. 21. This Court while cannot be persuaded to convert itself into a trial court to commence retrial or the first appellate court to hear the appeal afresh against a trial court's judgment. Both the courts below have held that the status of the land has been completely changed. It is interesting to note that the appellants had set out a different case in his plaint and later on, he relied upon the pleadings contained in the rejoinder, which were also dealt with by the courts below, specially the first appellate court and the detailed findings were recorded against the appellants. 22. Sri R. S. Tripathi, learned Counsel for the appellants has tried to set up, without there being any pleading before the two lower courts, an entirely new case before this Court regarding identification of numbers of the plots. Such case was never set up in the plaint nor such arguments were raised before the trial court and the first appellate court. He has unnecessarily wasted the precious time of this Court in putting-forth irrelevant, unnecessary arguments and without studying the scope of Section 100 of Code of Civil Procedure. He has insisted that the original record be summoned, at this stage, which was never ordered by this Court, during the last 28 years. Prolonging the litigation and keeping it alive for years must be avoided and moreover, this appeal is yet to be admitted. It has come for admission after several years. The counsel for the appellants had failed to make substantial submissions before this Court during last 28 years. The case was listed on several dates. The judgments of the courts below are sufficient for the purpose of admission of appeal to frame the substantial questions, but the way, in which learned Counsel for the appellants, has framed substantial questions cannot be permitted, while entertaining the second appeal. The learned Counsel has not even studied the basic concepts of civil law. The first appellate court is the last Court so far, as regards the findings of fact, as has been held by the Hon'ble Apex Court. The learned Counsel has not even studied the basic concepts of civil law. The first appellate court is the last Court so far, as regards the findings of fact, as has been held by the Hon'ble Apex Court. Now, the evidence cannot be called for and recorded again, as this Court cannot be asked to go back to the stage of trial. 23. In view of above discussion, I am of the opinion that no substantial questions of law are involved in the second appeal so as to admit it and proceed further. The questions, which have been framed by the learned Counsel for the appellant, cannot be called as substantial questions of law. 24. Under these circumstances, this Court finds no ground to interfere and the second appeal is liable to be dismissed. 25. Accordingly, the second appeal is dismissed at the admission stage with costs, which is assessed as Rs. 25,000 for keeping this litigation pending for 28 years, wasting the precious time of the Court and applying the law laid down in the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344 26. After pronouncement of the judgment, learned Counsel for the appellant has made a request to approach Hon'ble Apex Court by filing a special leave petition. Since the appellants have failed to even formulate the substantial questions of law and the grounds of appeal, such request cannot be entertained and is turned down accordingly.