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2012 DIGILAW 845 (PAT)

Nand Mani Giri v. Bijay Kumar Prasad

2012-06-21

MUNGESHWAR SAHOO

body2012
ORDER 1. Heard learned Senior Counsel Mr. Anuj Kumar Jha on behalf of the appellant under Order 41 Rule 11 C.P.C. 2. This Second Appeal has been filed by the defendant-appellant against the judgment and decree dated 7.6.2010 passed by the Additional District and Sessions Judge, Fast Track Court No.-II, Gopalganj in Title Appeal Nos. 89 of 2001/153 of 2009 dismissing the appeal and thereby affirmed the judgment and decree dated 30.7.2001 passed by Subordinate Judge-III, Gopalganj in Title Suit No. 100 of 1993 decreeing the plaintiff-respondent suit for specific performance of contract. 3. The plaintiff-respondent filed the aforesaid Title Suit No. 100 of 1993 for specific performance of contract dated 13.7.1985. The short fact on which the plaintiff claims the aforesaid relief is that the plaintiff-respondent executed two conditional sale-deeds in favour of defendant on 13.7.1985 for Rs. 7,000/- and on the same day two separate agreements were executed and registered mentioning condition that if the plaintiff will return the money between the 1392 Fasli to 1399 Fasli i.e. between the 1985 to 1992, the defendant shall execute the return sale-deeds in favour of the plaintiff-respondent. The plaintiff-respondent further alleged that he was always ready and willing to perform his part of the contract and still willing to perform the same and he always tendered the amount of Rs. 14,000/- but the defendant avoided the same. 4. The defendant's case in short is that the plaintiff never tendered Rs. 14,000/and he was never ready and willing to tender the same within the period. The sale-deeds are mortgage by conditional sale. Therefore, according to Section 83 of the Transfer of Property Act, 1832 (hereinafter referred to as the 'Act’) the Plaintiff was required to deposit the consideration ratio, amount in the Court which has no been done by the plaintiff. 5. In such view of the matter, the suit should be dismissed. 6. After framing various issues, the trial court decreed the plaintiff's suit for specific performance holding that the sale deed is not mortgage by conditional sale rather it is out and out sale, therefore, Section 83 of the Act is not applicable and the plaintiff-respondent is not required to deposit the consideration amount in the Court. The trial court also recorded a finding that the plaintiff was always ready and willing to perform his part of the contract. 7. The trial court also recorded a finding that the plaintiff was always ready and willing to perform his part of the contract. 7. On appeal, the appellate court also recorded the finding that the sale deeds which are Exts.-A and A/1 are out and out sale-deed. The plaintiff was always ready and willing to perform of his part of contract. On this finding the appellate Court also dismissed the appeal. 8. Learned Senior Counsel Mr. Jha submitted that in fact in the sale-deeds Exts.-A and A/1 there is clear recital that the sale-deeds are mortgage by conditional sale and on the same day two separate registered agreements were executed, therefore, the registered agreements were the same transactions forming part of the sale-deeds. In such circumstances, the courts below have mis-constructed sale-deeds as out and out sale. According to the learned counsel misconstruction of document with regard to legal effect is substantial question of law and, therefore, this question should be decided. The learned counsel next raised the question that the courts below had not considered properly the evidence of D.Ws. 1 and 2 examined on behalf of the appellant on the point of tender of money by the plaintiff to the appellant and, therefore, the finding recorded by the courts below are perverse as such vitiated. 9. So far the second question i.e. the courts below have not considered the evidence of D.Ws. 1 and 2 is concerned from perusal of the judgments of the courts below, it appears that the defendants have examined only two witnesses. Regarding payment or tender of money is concerned they have adduced negative evidence that no money was tender (sic-tendered ?). It may be mentioned here that negative evidence needs no proof. On the other hand, it appears that both the courts below have considered the admissible evidence of the plaintiff and recorded a finding that the plaintiff was always ready and willing to perform his part of the contract. This positive evidence has been accepted by both the courts below. In the case of Madamanchi Ramappa & Anr. VS. On the other hand, it appears that both the courts below have considered the admissible evidence of the plaintiff and recorded a finding that the plaintiff was always ready and willing to perform his part of the contract. This positive evidence has been accepted by both the courts below. In the case of Madamanchi Ramappa & Anr. VS. Muthaluru Bojjappa reported in AIR 1963 SC 1633 the Apex Court has held that once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognized that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. 10. In view of the above settled decision-of the Apex Court the question raised by the learned counsel for the appellant regarding appreciation of evidence of D.Ws. 1 and 2 is concerned the same cannot be a substantial question of law. In the case of Koppisetty Venkat Ratnam Vs. Pamarti Venkayamma reported in 2009(4) SCC 244 the Apex Court following the earlier decision in the case of Thiagarajan Vs. Sri Venugopalaswamy B. Koil reported in 2004(5) SCC 762 [ : 2004(2) PLJR (SC)215] held that In a catena of decision it has been held that where finding of fact by the Lower Appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible. 11. As stated above so far the question about readiness and willingness of the plaintiff is concerned, it is pure finding of fact and therefore, now after appreciating evidence of the defendant, this Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure cannot substitute its own finding of fact. Thus, this question in my opinion is not at all a substantial question of law. 12. The first question that has been raised by the learned counsel of the appellant is that the two sale-deeds i.e. Ext. A and A/1 are the mortgage by conditional sale. Thus, this question in my opinion is not at all a substantial question of law. 12. The first question that has been raised by the learned counsel of the appellant is that the two sale-deeds i.e. Ext. A and A/1 are the mortgage by conditional sale. According to the learned counsel the two agreements executed on the same day i.e. Ext.-3 and 3/Aforms part and parcel of the sale-deeds and therefore, it is the same transaction. From perusal of judgment of both the courts below it appears that the courts below have recorded a finding that condition of re-sale and payment of consideration and time within which the amount should be returned have not been mentioned in the sale-deeds and therefore, sale-deeds are out and out sale. According to the learned counsel for the appellant in the sale-deeds it is mentioned that it is conditional. It is admitted fact that in the sale-deeds no condition has been mentioned regarding these facts. The learned counsel admitted this fact but he submits that in the sale deeds it is mentioned as conditional sale deeds. However, two separate agreements have been executed in which the condition for re-sale has been clearly mentioned. 13. In such view of the matter, now the admitted position is that in the sale deeds there is no condition about the purchase and return payment of consideration amount. Only it is mentioned in sale-deed conditional sale". 14. Section 58(c) of the Act defines mortgage by conditional sale and in the proviso to the said section it has been clearly mentioned that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which purports the fact of sale. So far as the question raised by the learned counsel is concerned is now no longer res integra. In the case of Raj Kishore (dead) by Lrs. Vs. Prem Singh & Ors. reported in 2011 (1) SCC 657 the Apex Court has held that a bare reading of Section 58(c) of the Transfer of Property Act, 1882 (hereinafter referred to as the 'Act') would show that for a transaction to constitute mortgage by conditional sale it is necessary that the condition is embodied in the document that purports to effect the sale. That requirement is stipulated by the proviso which admits of no exception. That requirement is stipulated by the proviso which admits of no exception. The sale-deed executed by the plaintiff in that case also does not embody any condition like the one referred to in Section 58 (c) of the Act. 15. At paragraph 18 following decision i.e. AIR 1963 SC 1182 the Apex Court held that the plea of the plaintiff that the sale deed constituted a transaction of mortgage by conditional sale is not admissible because the sale deed and the covenant for reconveyance are contained in separate documents. At para-19 the Apex Court recorded that a finding of the High Court as to the legal effect of the transaction of sale followed by an agreement for transfer of the properly is not therefore legal and sound. In that case also in the sale-deed there was no condition and separate agreement for reconveyance was executed. The facts of this case is similar and therefore, I do not find any force in the submission of the learned counsel for the appellant, as such, since this question has already been decided by the Apex Court, it needs no fresh decision, therefore, in my opinion, this is also not a substantial question of law involved in this case for decision. 16. This Second Appeal is dismissed at this stage.