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2008 DIGILAW 630 (ALL)

SALIM AHMAD v. QUDRAT ALI

2008-03-18

POONAM SRIVASTAVA

body2008
POONAM SRIVASTAV, J. ( 1 ) HEARD Sri Muralidhar, Senior advocate, assisted by Sri R. P. Singh and Sri K. P. Upadhyay, learned Counsels for the plaintiff-appellants and Sri B. D. Mandhyan, Senior Advocate, assisted by Sri s. C. Mandhyan Advocate for the defendant-respondents. ( 2 ) THE suit was instituted by the plaintiff-appellants for specific performance. The admitted facts giving rise to the dispute is that a registered agreement for sale for an area 1. 39 acres of land was entered into between the defendants i. e. Quadri AH and Mohd. Navi sons of Abdul Rahim (defendant Nos. 1 and 2) of plot No. 505 village Bhatpura Taran for a consideration of rs. 45000/ -. Rs. 30,000/- is said to have been received before preparation of the agreement "baqabal Tahrir Dastavez Haza" and the sale deed was stipulated to be executed and registered by 30. 6. 1991 on receipt of balance money of rs. 15,000/ -. The agreement is purported to be scribed on a printed format on payment of Rs. 10/- stamp duty purchased on 19. 1. 1989 in the name of all four parties. It was presented for registration by Qudrat Ali on 25. 1. 1989 between 11. 00 A. M. and 12. 00 Noon. It was admitted that the vendors were identified by Zahor Ahmad and Nazaqat Ali of the said village. However, the document was registered on 25. 2. 1989 at serial No. 266, Book No. 1 Vol. 338/337 page 3/53 to 56. The aforesaid agreement was duly signed by Sub-Registrar Malkhan singh but the date mentioned below the signatures of the Sub-registrar depicting his endorsement is shown to be 25. 2. 1989. The assertion of the plaintiff-appellants is that they appeared before the Registrar office for execution of the sale deed on 29. 6. 1991. The vendors failed to appear on 29. 6. 1991 and the next day i. e. 30. 6. 1991 was Sunday. Again on 1. 7. 1991 the vendors failed to execute the sale deed though the appellants waited for a long time in the office of Sub-Registrar. On 1. 7. 1991 the sale deed was executed in favour of a third party Smt. Rahat Jan, defendant No. 3. Thereafter a suit for specific performance was instituted on or about 16. 7. 1991. A sale deed was executed by Rahat Jan on 2. 11. On 1. 7. 1991 the sale deed was executed in favour of a third party Smt. Rahat Jan, defendant No. 3. Thereafter a suit for specific performance was instituted on or about 16. 7. 1991. A sale deed was executed by Rahat Jan on 2. 11. 1994 in favour of Ishaq Ali for a consideration of rs. 75,000/- despite an injunction was granted in favour of the appellants restraining the vendors as well as Rahat Jan to transfer the land in question to any third person during pendency of the suit. The defendants disputed the plaint case and filed written statement stating therein that in fact there was no agreement to sell. The case set up was that Rs. 15,000/- was taken as loan and an agreement to sale was executed in place of mortgage deed only to save the stamp duty. It was always agreed between the parties that the loan amount will be cleared by 30. 6. 1991 though the amount was paid after 12. 7. 1991 but the plaintiffs instituted the suit. Alternatively the plea was that the plaintiffs were never ready to fulfil their part of the agreement and also that the registration was invalid. The deed of agreement could not be given any legal sanctity and, therefore, no legal claim of the plaintiffs arises. The Trial court decreed the suit but the appeal was allowed and the Lower Appellate court reserved the finding of the Trial Court. ( 3 ) THE appeal was admitted on 19. 9. 2007 on single substantial question of law:-"whether the finding of the Lower Appellate Court after reversing the Trial Court finding and holding that the agreement dated 25. 1. 1989 had not been proved to be genuine and the payment of sale consideration of rs. 30,000/- had also not been proved, is perverse, illegal and vitiated by ignoring crucial features in evidence as detailed in the memo of appeal. " ( 4 ) SRI Murlidhar, Senior advocate has emphasized that the finding of the Lower Appellate Court is perverse on the face of it and without setting aside the specific finding of the Trial Court. It has strenuously been argued that the reasons given by the Appellate Court can not be relied upon and no prudent person will ever come to a conclusion as it has been done by the Lower appellate Court. It has strenuously been argued that the reasons given by the Appellate Court can not be relied upon and no prudent person will ever come to a conclusion as it has been done by the Lower appellate Court. The learned Counsel has placed the original agreement to demonstrate that on top of the third page of the agreement, the date given is 25. 1. 1989 whereas the signatures below the endorsement of Malkhan Singh Sub registrar at four other places, he has mentioned the date as 25. 2. 1989. Malkhan Singh has also been examined as one of the witnesses and the learned counsel has placed the statement is support of his contention. Besides the statement of Malkhan Singh, endorsements were made in the handwriting of sahid Ali CRC who appeared as a witness. It is thus apparent that the confusion is only because in the normal course, the first three endorsements should have been dated 25. 1. 1989 and only last one should have been dated 25. 2. 1989. It is submitted that the Sub Registrar has tried to explain in his statement that three endorsements were natural and probable mistake and this alone can not invalidate the registration. ( 5 ) SRI B. D. Mandhyan has countered each and every argument of Sri murlidhar. He submits that only question involved is whether the agreement to sell was validly executed or it was a loan transaction. It is clear finding of fact recorded by the Lower Appellate Court on the basis of evidence on record. It is thus apparent that these findings can not be set aside on reappraisal of evidence in exercise of jurisdiction under section 100, C. P. C. Sri Mandhyan has laid stress and asserted that the argument of Sri Murlidhar can not be accepted, no reason has been given to substantiate that the judgment of the Lower appellate Court is perverse, the argument is without any basis. There is nothing to establish perversity in the judgment and therefore, can not be set aside in a second appeal. The finding of the Lower Appellate Court that the plaintiffappellant had no ready money to get the deed executed pursuant to the agreement. Assuming the registered document to be correct, the suit could not be decreed. There is nothing to establish perversity in the judgment and therefore, can not be set aside in a second appeal. The finding of the Lower Appellate Court that the plaintiffappellant had no ready money to get the deed executed pursuant to the agreement. Assuming the registered document to be correct, the suit could not be decreed. Since the agreement to sell is only on printed format but it is apparent that the plaintiff in his wisdom mentioned wrong dates and, therefore, the lower Appellate Court was able to detect the flaw and set the Trial Court at naught. The finding arrived at are factual and by no stretch of imagination it can be said to be a substantial error of law. The suit itself was filed after 2-1/2 years of the alleged agreement to sell. In the circumstances, the plaintiff-appellants are not entitled for decree for specific performance. ( 6 ) I have taken into consideration the arguments advanced by the respective counsel and also considered the principles laid down by the Apex Court as well as this Court in the case of Veerayee Ammal v. Seeni Ammal, 2002 1 SCC 134 where it was held that a person seeking specific enforcement of contract must approach the Court within reasonable time and the "reasonable time" means as soon as circumstances permit. The Apex Court depreciated the liberal construction and generous application of provisions of section 100, C. P. C. Honbie Supreme Court was of the view that only because there is another view possible on appreciation of evidence that can not be sufficient for interference under section 100, C. P. C. For ready reference, extract of paragraphs 7 and 8 of the aforesaid citation are quoted below:- "7. . . . . . We have noticed with distress that despite amendment the provisions of section 100 of the Code have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of section 100 appears to have been frustrated. Even before the amendment of section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur v. Mohani Dasi. , held AIR p. 1205 para 3. Even before the amendment of section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur v. Mohani Dasi. , held AIR p. 1205 para 3. "it is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court that a High Court, on second appeal, cannot go into questions of fact, however erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned Counsel for the plaintiff-respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two Courts of fact. " 8. To the same effect are the judgments reported in Sinha Ramanuja Jeer v. Ramachandra Ayyar v. Ramalingam Chettiar and Madamanchi ramappa v. Muthaluru Bojjappa. After its amendment, this Court in various judgments held that the existence of the substantial question of law is a condition precedent for the High Court to assume jurisdiction of entertaining the second appeal. The conditions specified in section 100 of the Code are required to be strictly fulfilled and that the second appeal cannot be decided on merely equitable grounds. As to what is the substantial question of law, this Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. , held : AIR p. 1318 para 6. "the proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. " ( 7 ) SIMILAR view has been expressed in a number of other decisions by the apex Court in the case of Thiagarajan and others v. Sri Venugopalaswamy B. Koil and others, 2004 5 JT 54 , Rajeshwari v. Puran Indoria, 2005 61 ALR 145, Gurdev Kaur and others v. Kaki and others, 2006 0 Allcj 1481, Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, 1999 36 ALR (SC) 218 ( 8 ) IN view of the aforesaid decision, going through the record and arguments of the respective Counsels and written submissions given on behalf of the appellant as well as respondents, there is no substantial question of law arises and it calls for no interference in the impugned judgment and finding recorded by the Lower Appellate Court. The appeal lacks merit and is accordingly dismissed. Appeal dismissed. .