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2012 DIGILAW 1698 (JHR)

Kesaw Prasad Singh v. Liladhar Mishra

2012-12-10

N.N.TIWARI

body2012
JUDGMENT This second appeal is against the judgment and decree of Additional District Judge III, East Singhbhum, Jamshedpur passed in Title Appeal No.12 of 1994. 2. The plaintiff/respondent is the appellant. He had filed suit for a decree for specific performance of agreement and for a decree for executing and registering sale deed in respect of a house, situated at Holding No.6, Line No.1, Namda Basti, P.S. Golmuri, Town Jamshedpur, District East Singhbhum. 3. According to the plaintiff, the said house was owned by Kanhaiya Mishra, father of the defendant. Kanhaiya Mishra agreed to sell his said house property to the plaintiff for a consideration amount of Rs.25,000/. Kanhaiya Mishra received Rs.6,005/as advance on 23rd February, 1977 and executed a receipt thereof. Again on 25th March, 1977 he received a sum of Rs.4,000/and executed a receipt. Kanhaiya Mishra died on 10th November, 1979 before executing the sale deed in favour of the plaintiff. After the death of Kanhaiya Mishra, his sons, namely, Liladhar Mishra (Defendant No.1) and Sachidanand Mishra (Defendant No.2) and his wife, namely, Vidhya Devi (Defendant No.3) inherited the said property along with other properties. The plaintiff approached the Defendant No.1 and informed him about the said agreement with his father and payment of advance of Rs.10,005/and requested him to sell the aforesaid property in his favour. The Defendant No.1 expressed his inability saying that the suit property is joint and he cannot execute sale deed alone. Later on the legal heirs of Kanhaiya Mishra partitioned the joint properties amicably. The said house property was allotted to the share of Defendant No.1. He agreed to sale the said property and received Rs.9,995/out of the balance amount. He executed agreement dated 4th April, 1982 (Ext.2) and promised to sell the aforesaid property to the plaintiff. But in spite of repeated requests, said defendant did not execute and register sale deed in favour of the plaintiff. It was asserted that the plaintiff was/is ready and willing to perform his part of agreement. He had sent notice to the Defendant No.1 to that effect, but the Defendant No.1 refused to execute the sale deed. The plaintiff, thereafter, filed the said suit, praying for a decree against Defendant No.1 for specific performance of the agreement and for executing and registering sale deed and transferring the said property in favour of the plaintiff. 4. He had sent notice to the Defendant No.1 to that effect, but the Defendant No.1 refused to execute the sale deed. The plaintiff, thereafter, filed the said suit, praying for a decree against Defendant No.1 for specific performance of the agreement and for executing and registering sale deed and transferring the said property in favour of the plaintiff. 4. The suit was contested by the defendants by filing written statement. According to Defendant No.1, the plaintiff has got no cause of action for the suit. The suit is not maintainable and is barred by limitation. The suit is also bad for nonjoinder of necessary parties. The sister of defendant, namely, Smt. Sushila Devi has not been made party. The defendant denied that Kanhaiya Mishra had agreed to sell his house property for a consideration amount of Rs.25,000/and had taken any advance. Money receipts mentioned by the plaintiff are forged and fabricated documents. Kanhaiya Mishra died on 10th November, 1979. Had there been any agreement of 1977, it might have been honoured by Kanhaiya Mishra. He was a teacher in R. D. Tata High School at Jamshedpur. He had constructed the house while he was in service. He had retired in 1969. After retirement, he had got huge amount in the form of gratuity, provident fund etc. He was also getting freedom fighter pension till his death. There was no necessity to take money from others or to sell his house. After the death of Kanhaiya Mishra, Defendant No.1 was not the sole owner of the house. If there was any agreement, the plaintiff should have approached all the heirs of Kanhaiya Mishra. He denied that he had promised to sell the property as alleged by the plaintiff. He also emphatically denied the plaintiff's claim of receipt of Rs.9,995/as an advance and he also denied execution of any agreement either on 4th April, 1982 or on any other date. The plaintiff had deliberately used thumb impression, which was obtained for the purpose of appointment of Panches to arbitrate the dispute between the Defendant Nos.1 and 2 and other family members. The plaintiff has been set up by the interested person. The defendant is matriculate and there is no question of getting the agreement scribed by some other person. The whole story of the plaintiff is invented and dishonestly concocted. Market value of the property is not less than rupees one lac. The plaintiff has been set up by the interested person. The defendant is matriculate and there is no question of getting the agreement scribed by some other person. The whole story of the plaintiff is invented and dishonestly concocted. Market value of the property is not less than rupees one lac. The suit is not maintainable and is liable to be dismissed. 5. Learned Trial court on the basis of the said pleadings framed several issues. 6. Both the parties led their evidences. 7. Learned Trial Court decided almost all the issues in favour of the plaintiff and decreed the suit. 8. Aggrieved by the judgment and decree of the learned Trial Court, the Defendant No.1 filed title appeal in the court of learned District Judge, Jamshedpur, East Singhbhum, being Title Appeal No.12 of 1994. The said title appeal was ultimately heard and decided by learned Additional District Judge, Jamshedpur. Learned Lower Appellate Court has discussed the facts and evidences on record in detail and recorded his finding issuewise, as framed by the learned Trial Court. After thorough appraisal of oral and documentary evidences, adduced by the parties, learned court below came to the finding that the plaintiff could not prove that there was any agreement between the plaintiff and Kanhaiya Mishra regarding sale of the suit house to the plaintiff. The alleged agreement (Ext.2) does not mention anything that there was any agreement between the plaintiff and Kanhaiya Mishra regarding sale of the house for a consideration amount of Rs.25,000/. The plaintiff has admitted that after death of Kanhaiya Mishra Defendant No.2 was also residing in the house and that there was no partition between the brothers i.e. Defendant Nos.1 and 2. There was no occasion for approaching only Defendant No.2. The alleged agreement with Defendant No.1 does not contain even signature of Defendant No.2. The plaintiff has also admitted that there was congenial relation between the said defendants. Agreement between Kanhaiya Mishra and the plaintiff is said to be oral. Liladhar Mishra is matriculate. The plea of putting his thumb impression on agreement by him is not acceptable. There is no signature of Liladhar Mishra on the agreement. In the receipt, two stamps have been pasted by the side of the signature of Kanhaiya Mishra. Plaintiff has admitted that Kanhaiya Mishra had not signed on revenue stamp. 9. Liladhar Mishra is matriculate. The plea of putting his thumb impression on agreement by him is not acceptable. There is no signature of Liladhar Mishra on the agreement. In the receipt, two stamps have been pasted by the side of the signature of Kanhaiya Mishra. Plaintiff has admitted that Kanhaiya Mishra had not signed on revenue stamp. 9. Learned Lower Appellate Court on the said discussion and thorough appraisal of facts and evidences came to the finding that the plaintiff failed to prove his case. Learned Appellate Court decided main issues i.e. Issue Nos.5, 6 & 7 against the plaintiff and on that basis set aside the judgment and decree of the learned Trial Court and dismissed the plaintiff's suit. 10. Aggrieved by the said judgment and decree, the plaintiffrespondentappellant has filed the instant appeal. 11. Mr. S. L. Agrawal, learned counsel, appearing on behalf of the appellant, submitted that the judgment and decree of the learned Lower Appellate court is illegal and perverse and is liable to be set aside. He submitted that the Appellate Court has not met all the reasonings recorded by the Trial Court and has come to its own independent finding. Learned Lower Appellate Court has also not set aside the findings of the Trial Court and erroneously allowed the appeal. He further submitted that appraisal of the evidences by the learned court below and finding of fact recorded by it was based on the right judicial appreciation, whereas the finding and appraisal of the learned Lower Appellate Court is based on wrong legal concept and that gives rise to a legal ground to set aside the judgment and decree of the learned Lower Appellate Court. 12. Learned counsel appearing on behalf of the respondents, on the other hand, submitted that absolutely no substantial question of law is involved in this appeal. While recording its own independent finding, learned lower Appellate Court does not require to meet each reasoning of the learned Trial Court. It may apprise and give its own independent finding. The finding recorded by the learned Lower Appellate Court is based on detailed discussion of evidences and material on record and is not perverse. The second appellate court cannot enter into appraisal of the evidences and come to another finding of fact. The finding of fact based on appreciation of evidence is binding on the second appellate court. The finding recorded by the learned Lower Appellate Court is based on detailed discussion of evidences and material on record and is not perverse. The second appellate court cannot enter into appraisal of the evidences and come to another finding of fact. The finding of fact based on appreciation of evidence is binding on the second appellate court. There is, thus, no merit in this appeal and the same is liable to be dismissed. 13. Having heard learned counsel for the parties, I also perused the judgments of the courts below. 14. Learned Trial Court after discussion recorded its finding and decreed the suit. Learned lower Appellate Court also discussed the evidences and materials on record and recorded its own independent finding. The appellant has assailed the finding of the learned lower Appellate Court on the ground that the same is perverse. Learned counsel for the appellant submitted that since learned lower Appellate Court has not set aside the finding of the learned Trial Court without meeting all the reasonings, it is not sustainable. 15. After going through the judgment of learned lower Appellate Court, I find that the finding of facts recorded by the Appellate Court is based on thorough appraisal of evidences and there is no perversity in the finding. I find substance in the submission of learned counsel for the respondents that the Second Appellate Court cannot appraise the evidences and form its own opinion to hold the finding of fact either good or bad recorded by the courts below. The finding of fact based on appraisal of evidences recorded by the learned lower Appellate court is binding on the Second Appellate Court. In this regard, reference may be made to the decision of the Supreme court in the case of Rajgopal (Dead) By LRS. Vs. Kishan Gopal & Anr., reported in (2003) 10 SCC 653 . 16. It is also well settled that while deciding the appeal by independently appraising the facts, evidences and material on record, the Appellate Court is not required to meet each and every reasoning of the learned Trial Court. 17. In view of the above discussion, I find no ground made out in this second appeal, giving rise to any substantial question of law to be framed and decided by this Court. 18. This appeal is accordingly, dismissed.