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2012 DIGILAW 2263 (RAJ)

Poornaram v. Kishani

2012-12-05

R.S.CHAUHAN

body2012
Hon'ble CHAUHAN, J.—The appellant-defendant, Poornaram is aggrieved by the judgment and decree dated 6.8.2011 passed by the Additional District Judge, Ratangarh, District Churu whereby the learned Judge allowed the first appeal of the respondent-plaintiff and reversed the judgment and decree dated 29.11.2005 passed by the learned Civil Judge (Sr. Div.), Ratangarh whereby the learned Magistrate had dismissed the suit for specific performance of the agreement filed by the respondent-plaintiff. 2. Briefly stated the facts of the case are that in 1987 the respondent-plaintiff, Smt. Kishani had filed a suit for specific performance of the agreement dated 19.6.1985 against the appellant-defendant. In the suit, she had claimed that she had a total land measuring 55 Bigha, 12 Biswa, situated in Khasra No. 260 measuring 15 bigha, 12 Biswa and in Khasra No. 327 measuring 40 Bigha at Village Nosaria. Out of the said land, she sold a land admeasuring 20 Bigha, 15 Biswa for a sum of Rs. 16000/- to the appellant-defendant through a registered sale deed dated 19.6.1985. However, on the same day, i.e. on 19.6.1985, the appellant-defendant and she executed an agreement to sale for re-purchase of the land in favour of the respondent-plaintiff to the effect that in case the respondent-plaintiff were to repay the principal amount alongwith an interest @ Rs. 1/- per hundred per month to the appellant-appellant within a period of two years from the date of sale of the land, the appellant-defendant will again re-register the sale deed in favour of the respondent-plaintiff. During the course of these two years, the appellant-defendant would cultivate the land and would bear the expenses of registration of the sale deed in lieu of the cultivation made by him. In pursuance of the said agreement for re-sale, dated 19.6.1985, the respondent-plaintiff paid a sum of Rs. 5300/- to the appellant-defendant on 24.6.1985. According to the respondent-plaintiff, she was always eager and willing to pay the remaining amount of Rs. 10,700/- to the appellant-defendant. However, the appellant-defendant ignored her request. Since he had not complied with the agreement for re-sale, on 18.6.1987 the respondent-plaintiff served a legal notice upon the appellant-defendant. Despite the service of the notice, the appellant-defendant refused to accept the remaining amount, and refused to re-sell the land to the respondent-plaintiff. Therefore, she was compelled to file the suit for specific performance of the said agreement. 3. The appellant-defendant submitted his written statement. Despite the service of the notice, the appellant-defendant refused to accept the remaining amount, and refused to re-sell the land to the respondent-plaintiff. Therefore, she was compelled to file the suit for specific performance of the said agreement. 3. The appellant-defendant submitted his written statement. He denied the fact that he had entered into an agreement to re-sell the land on 19.6.1985. He further denied the fact that the respondent-plaintiff had paid him a sum of Rs. 5300/-. Instead, he claimed that he had given her a loan of Rs. 10700/- alongwith an interest @ Rs. 2/- per hundred per month. He further claimed that a promissory note and receipt was executed by the plaintiff-respondent in his favour. He further claimed that repeatedly he had asked for re-payment of the loan amount, but she refused to repay the loan. Hence, he prayed that her suit should be dismissed by the learned trial Court. 4. On the basis of the pleadings of the parties, the learned trial court framed five issues including the issue of relief. In order to buttress her case, the respondent-plaintiff examined four witnesses, and submitted fifteen docu-ments. In turn, the appellant-defendant examined himself as a single witness, and submitted four documents. After going through the oral as well as the documentary evidence on record, by judgment and decree dated 29.11.2005, the learned Magistrate dismissed the suit. Since the respondent-plaintiff was aggrieved by the said judgment and decree, she filed an appeal before the learned Judge. By judgment and decree dated 6.8.2011, the learned Judge set aside the judgment and decree dated 29.11.2005 and allowed the appeal. Hence, this second appeal by the appellant-defendant before this court. 5. Mr. Sajjan Singh, the learned counsel for the appellant, has vehemently raised the following contentions before this court; firstly, that the learned Judge has ignored the fact that the appellant had denied the execution of the agreement to re-sell dated 19.6.1985. 6. Secondly, that the execution of Exhibit-1 (the agreement dated 19.6.1985) was never proved. 7. Thirdly, it was never proved by the respondent-plaintiff that she had paid by consideration for the said agreement. In the absence of any consideration, an agreement does not quality as a contract. 8. Fourthly, that Smt. Kishani (PW.1) has self-contradicted herself with regard to the factum of payment of Rs. 5300/- to the appellant-defendant. 7. Thirdly, it was never proved by the respondent-plaintiff that she had paid by consideration for the said agreement. In the absence of any consideration, an agreement does not quality as a contract. 8. Fourthly, that Smt. Kishani (PW.1) has self-contradicted herself with regard to the factum of payment of Rs. 5300/- to the appellant-defendant. According to her, she had paid the said amount to the appellant infront of her house, secondly, in a street and thirdly, in the village. Thus, the payment of the consideration is shrouded in mystery. 9. Fifthly, the learned Judge has ignored the fact that her witnesses have not been able to prove that the signature of the appellant was on the agreement to sell. 10. Sixthly, Ramchandra (PW.2) is an untrustworthy witness as there is animosity between him and the appellant. Further, Mangilal (PW.3) does not say that Exhibit-1 contains the appellants signature. In fact, according to him, no consideration was paid before him. Thus, he has neither proven the payment of consideration, nor the execution of the agreement. 11. Seventhly, Roopchand (PW.4) does not say that he knows the appellant. Therefore, he is not in a position to tell the court that it is the appellant who has signed the agreement. Moreover, in his testimony, he does not say that the signature of the appellant is marked as `A' to `B'. Thus, he does not prove the appellant's signature on the agreement. 12. Lastly, that there is no evidence to show that the respondent-plaintiff was eager to fulfill her part of the agreement. Hence, the learned Judge has mis-appreciated the evidence and has committed an illegality in allowing the appeal of the respondent-plaintiff. 13. On the other hand, Ms. Charu Rai, the learned counsel for the respondent-plaintiff, has strenuously contended as follows: firstly, the contentions raised by the learned counsel for the appellant are based on facts. Therefore, merely disputed questions of facts arise in the present appeal. However, it being a second appeal, it can be entertained and can be maintained only on substantial question of law. But, the present appeal does not involve any substantial question of law. Relying on the case of Gurdev Kaur and Ors. vs. Kaki and Ors. (2007) 1 SCC 546 ), she has contended that after the amendment in Section 100 CPC, a second appeal is confined only to the substantial question of law. 14. But, the present appeal does not involve any substantial question of law. Relying on the case of Gurdev Kaur and Ors. vs. Kaki and Ors. (2007) 1 SCC 546 ), she has contended that after the amendment in Section 100 CPC, a second appeal is confined only to the substantial question of law. 14. Secondly, that Smt. Kishani (PW.1) is an illiterate village woman. While appreciating the evidence of a rustic witness, the court has to be sensitive to the fact that the witness may not be very articulate. In case her testimony has a ring of truth and establishes her story, she can be relied upon as a trustworthy witness. Minor contradictions in her testimony should not create any doubt about the veracity of her testimony. Merely because Smt. Kishani states three different locations where Rs.5300/- was paid by her to the appellant-defendant, it should not dilute the truthfullness of her testimony. After all what is relevant is that according to her, she had paid the said amount, the consideration for the agreement, to the appellant-defendant. Moreover, the same fact was mentioned in the notice sent by her on 18.6.1987 a fact not denied by the appellant, as he never replied to the said notice. 15. Thirdly, in her testimony, she had clearly identified the appellant's signature on Exhibit-1 by claiming that his signature is `A' to `B'. Therefore, it is immaterial whether other witnesses identified his signature or not. Thus, the factum of payment of consideration and the factum of execution of the agreement by the appellant stands proved by the testimony of the respondent-plaintiff herself. Lastly, both in her testimony and the fact that the notice was sent within two years, i.e. within the duration of validity of the agreement, clearly proves that she was willing to fulfill her part of the agreement by paying the remaining amount of Rs. 10,700/- to the appellant. Hence, the learned counsel has supported the impugned judgment and decree. 16. Heard the learned counsel for the parties, examined the record and perused the impugned judgment. 17. It is, indeed, a settled principle of law that a second appeal is not maintainable only on substantial question of law. In the case of Gurdev Kaur (supra), the Apex Court has observed as under: "Now, after the 1976 amendment, the scope of Section 100 has been drastically curtailed and narrowed down. 17. It is, indeed, a settled principle of law that a second appeal is not maintainable only on substantial question of law. In the case of Gurdev Kaur (supra), the Apex Court has observed as under: "Now, after the 1976 amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words "substantial question of law" which is indicative of the legislative intention. The legislative intention is very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble." The effect of the amendment mainly, according to the amended section, is: The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (i) The substantial question of law to precisely state such question; (ii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iii) Another part of the section is that the appeal shall be heard only on that question. It is the bounden duty of the High Court to entertain second appeal within the ambit and scope of Section 100 CPC." 18. This position has been followed constantly both by this Court and by the Apex Court. The present appeal does not raise any substantial question of law. Hence, it is without merit. 19. Even otherwise, the contentions raised by the learned counsel for the appellant are misplaced. Smt. Kishani (PW.1) is, indeed, an illiterate rustic woman who had sold part of her land to the appellant-defendant with the clear understanding that he could cultivate it for two years, but after lapse of two years, the said land would be resold to her provided she pays the agreed amount to the appellant, viz. Rs. 16000/-. According to her testimony, she had paid Rs. 5300/- to the appellant. Rs. 16000/-. According to her testimony, she had paid Rs. 5300/- to the appellant. It is true that she claims that she had paid the said amount to the appellant-defendant at three different places. But considering the fact that she is an illiterate rustic woman, she may not be very accurate and articulate about the place where the money was paid. The minor contradictions in her testimony with regard to the place of payment cannot oust the factum that she had paid Rs. 5300/- to the appellant. Hence, the consideration was certainly paid and she had partly fulfilled her obligation under the agreement to re-sell the land. 20. In her testimony, she further identifies the signature of the appellant, Poornaram, as `A' to `B'. Once she has identified his signature marked as `A' to `B', it is immaterial if her other witnesses re-identified the signature or not. Therefore, the contention raised by the learned counsel for the appellant that Mangilal (PW.3) and Roopchand (PW.4) do not identify the appellant's signature is without any merit. 21. Kishani Bai (PW.1) also tells the court that she was eager to fulfill her part of thee agreement by paying the remaining amount of Rs.10,700/-. The fact that she had sent a notice to the appellant on 18.6.1987 clearly reveals her willingness to fulfill her part of the agreement. However, despite the notice, the appellant never accepted the remaining amount and never resold the land back to her. 22. Even if, for the sake of argument, it is accepted that Ramchandra (PW.2) has an animosity with the appellant, thus, he is an untrustworthy witness, but the fact remains that other witnesses have supported the case of the respondent-plaintiff Smt. Kishani,. Thus, the learned Judge was certainly justified in concluding that the execution of the agreement, the consideration for the agreement and the willingness of the respondent-plaintiff was proved. Hence, he was justified in allowing the first appeal filed by the respondent-plaintiff. 23. For the reasons stated above, there is no merit in this Civil Second Appeal. It is, hereby, dismissed.