Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 2 (PAT)

Ram Bahadur Rai v. Bishwa Nath Rai

2014-01-02

MUNGESHWAR SAHOO

body2014
MUNGESHWAR SAHOO, J.:–The plaintiff has filed this Second Appeal against the Judgment of reversal passed by the lower appellate Court dated 17.06.2002 passed by the learned 4th Addl. District Judge, Saran at Chapra in Title Appeal No.5 of 1995 whereby the lower appellate Court allowed the appeal and reversed the Judgment and Decree of the trial Court dated 03.12.1994 passed by the learned Second Subordinate Judge, Chapra in Title Suit No.63 of 1987. 2. The plaintiff appellant filed the aforesaid suit for specific performance of contract dated 15.10.1986. According to the plaintiff, Sarjug Rai was in need of money for treatment of his leg, therefore, there was negotiation of sale of land by the defendant No.1 with the plaintiff on 14.10.86 and it was agreed that the defendant will sell the suit property for Rs.45,000/-. On 15.10.86, after receiving earnest money of Rs.21,000/-, agreement was executed. It was agreed that after receiving the balance consideration amount of Rs.24,000/- within three months, the defendant No.1 will execute sale deed in favour of the plaintiff. This negotiation and execution of the agreement took place in presence of defendant No.2 to 4 who had full knowledge. In spite of the knowledge, the said defendants got a gift deed executed by defendant No.1 in their favour on 12.01.1987. The plaintiff within the period approached the defendant and tendered balance consideration amount of Rs.24,000/- and requested the defendant No.1 to execute the sale deed but he always avoided. It appears that during the pendency of the suit, the defendant No.2 to 4 sold the property in favour of defendant No.5 and 6 by registered sale deed dated 24.09.1987. The plaintiff was always ready and to perform his part of the contract and is still ready to perform the same. 3. The defendant No.1 filed separate written statement and likewise defendant No.2 to 4 filed separate written statement and 5 and 6 also filed separate written statement. The case of defendant No.1 is that there was never any talk of sale on 14.10.1986 and he has the sufficient money in his passbook as such was not in need of money. No agreement was executed by him for sale of suit property for Rs.45,000/- and no amount of Rs.21,000/- was paid by plaintiff to him as advance. The alleged deed of contract is forged and fabricated document. Other allegations were completely denied. No agreement was executed by him for sale of suit property for Rs.45,000/- and no amount of Rs.21,000/- was paid by plaintiff to him as advance. The alleged deed of contract is forged and fabricated document. Other allegations were completely denied. Alternatively, the defendant No.1 alleged that at the time of execution of sale deed dated 07.08.1986 to Aasha Devi, Kedar Singh the witness of the plaintiff might have taken left thumb impression of defendant No.1 on Sada paper and might have converted the same into contract for sale. The defendant No.2 to 4 and 5 and 6 supported the written statement of the defendant No.1. 4. The trial Court on the basis of materials recorded the finding that ext.2, the Mahadnama, is genuine and valid and for consideration. Defendant No.2 to 4 are not bonafide donee. Accordingly decreed the plaintiff’s suit. On appeal, the lower appellate Court held that the lands covered under ext.2, i.e., agreement dated 15.10.1986 is more than Rs.1 lakh. The lower appellate Court also recorded the finding that on 14.10.1986, the negotiation did not finalise and on 15.10.1986, the defendant No.1 did not execute the contract for sale and he did not receive part consideration amount of Rs.21,000/-. Defendant No.5 and 6 are bonafide transferee. Accordingly, the appeal was allowed and the trial Court Judgment was set aside. The plaintiff’s suit was dismissed. 5. At the time of admission on 08.05.2007, the following three substantial questions of law were formulated :– (i) Whether the learned Court of appeal below was justified in reversing the findings of the trial Court without considering its reasons? (ii) Whether the Court of appeal below was justified in rejecting the agreement on frivolous ground like non-affixing of stamp, size of paper etc. without considering the concrete evidence including the expert, who adduced on behalf of the plaintiff? (iii) Whether a suit for specific performance of contract could be validly decreed without properly considering the question that the plaintiff was always ready and willing to perform his part of the agreement? 6. The learned senior counsel, Mr. S. S. Dwivedi, appearing on behalf of the appellant submitted that the lower appellate Court has reversed the finding of the trial Court without meeting the reasonings assigned by the trial Court. 6. The learned senior counsel, Mr. S. S. Dwivedi, appearing on behalf of the appellant submitted that the lower appellate Court has reversed the finding of the trial Court without meeting the reasonings assigned by the trial Court. According to the learned counsel, the case of the defendant is that at the time of execution of the sale deed in favour of Asha Devi, his left thumb impression might have been obtained, therefore, the defendant No.1 is admitting his left thumb impression on the agreement. The trial Court on this ground held that the evidence of the expert of the defendant is of no value because the defendant No.1 has admitted left thumb impression. The lower appellate Court without considering this aspect and without meeting the reasonings of the trial Court reversed the finding and held that the left thumb impression on the agreement is not of defendant No.1. 7. The learned counsel further submitted that the lower appellate Court has rejected the agreement on the ground that stamp was not affixed and the size of the paper on which the agreement is scribed is small which are frivolous grounds. According to the learned counsel on these grounds, the agreement cannot be said to be not genuine document and moreover while reversing the finding of the trial Court, the lower appellate Court has not considered the expert of the plaintiff who was also examined. The learned counsel further submitted that lower appellate Court also wrongly approached the case and held that the defendant No.2 to 4 are transferee without notice of the agreement. While recording this finding, the lower appellate Court did not consider the fact that they are gratuitous transferee and not transferee for value, therefore, they are not saved under Section 19 (b) of the Specific Relief Act. The approach of the lower appellate Court is also wrong regarding the transferee, i.e., defendant No.5 and 6. The lower appellate Court wrongly held that because the defendant No.2 to 4 had no knowledge of the agreement, therefore, the defendant No.5and 6 are bonafide transferee of value without knowledge of the agreement between plaintiff and defendant No.1. The approach of the lower appellate Court is also wrong regarding the transferee, i.e., defendant No.5 and 6. The lower appellate Court wrongly held that because the defendant No.2 to 4 had no knowledge of the agreement, therefore, the defendant No.5and 6 are bonafide transferee of value without knowledge of the agreement between plaintiff and defendant No.1. According to the learned counsel, this approach of the lower appellate Court is not according to law because the defendant No.5 and 6 are the transferee during the pendency of the suit, therefore, there will be presumption that they had the knowledge about the agreement as such they are also not saved by the provision of Section 19(b) of the Specific Relief Act. 8. The learned counsel further submitted that the plea about readiness and willingness is available only to the vendor or to his legal representatives and the plea is not available to a subsequent purchaser. Here, the subsequent purchaser are raising the plea that the plaintiff was not ready and willing to perform his part of the contract. The learned counsel in support of the contention relied upon a Division Bench decision of this Court, i.e., (i) Krishna Kumar Vs. Raghubir Prasad Yadav 2000 (1) PLJR 641 (ii) AIR 1995 SC 945 Jagraj Singh Vs. Labh Singh (iii) 2008 (3) PLJR 263 SC Shri Rameshwar Prasad Vs. Sri Basanti Lal. 9. On the strength of these decisions, the learned counsel submitted that the lower appellate Court has not properly considered the readiness and willingness of the plaintiff. Therefore, also the Judgment is vitiated. On these grounds, the learned counsel submitted that all the three substantial questions of law be answered in favour of the plaintiff-appellant and the plaintiff’s suit for specific performance be decreed. 10. The learned senior counsel, Mr. Kamal Nayan Choubey, appearing on behalf of the respondent submitted that the appellate Court has the jurisdiction to re-appreciate the evidences and materials available on record and differ with the finding of the lower appellate Court and likewise the appellate Court has the jurisdiction to reverse the finding on cogent grounds. In the present case, the trial Court has not considered the report of the expert assuming that the defendant No.1 has admitted his left thumb impression on the deed of agreement. The learned counsel submitted that it was the alternative case of the defendant No.1. In the present case, the trial Court has not considered the report of the expert assuming that the defendant No.1 has admitted his left thumb impression on the deed of agreement. The learned counsel submitted that it was the alternative case of the defendant No.1. The lower appellate Court has rightly, therefore, after considering in great detail the evidences and the report of the expert, has recorded the finding and reversed the finding of the trial Court, therefore, the finding recorded by the lower appellate Court is pure finding of fact and that cannot be interfered with in second appellate jurisdiction. The learned counsel further submitted that in the present case, the defendant No.1 filed the written statement clearly denying the execution of the agreement and his left thumb impression on the document and clearly averred that it is forged document and alternatively pleaded that Kedar Singh might have converted into agreement after obtaining left thumb impression on blank paper. The learned counsel further submitted that none of the decisions cited by the appellant is applicable in the present case because of the fact that in those cases, the vendor did file written statement. The learned counsel further submitted that the lower appellate Court has considered the report of the expert examined by the plaintiff and also the report of the expert examined by the defendant. As such the substantial question No.(ii) does not arise for consideration. The lower appellate Court has not rejected the agreement on the ground of non-affixing stamp or that it is smaller in size. Those are one of the various grounds on which the agreement was held to be not genuine. The learned counsel further submitted that this finding of the lower appellate Court regarding genuineness or otherwise is also a finding of fact. 11. The learned senior counsel, Mr. K.N. Choubey further submitted that it is for the plaintiff to aver and to prove that the plaintiff was always ready and willing to perform his part of the contract. In the present case, the lower appellate Court on the basis of the evidences produced by the plaintiff held that the plaintiffs are not ready and willing to perform his part of the contract. This finding is also a finding of fact, therefore, it cannot be interfered with in second appellate jurisdiction. 12. In the present case, the lower appellate Court on the basis of the evidences produced by the plaintiff held that the plaintiffs are not ready and willing to perform his part of the contract. This finding is also a finding of fact, therefore, it cannot be interfered with in second appellate jurisdiction. 12. The learned counsel further submitted that the lower appellate Court also recorded the finding that the advance amount of Rs.21,000/- was not paid by the plaintiff as such it is also a finding of fact. 13. From perusal of the trial Court Judgment, it appears that at paragraph 14, the trial Court while considering the evidences of the parties held that since the case of the defendant that Kedar Singh, P.W.2, might have taken left thumb impression at the time of execution of sale deed in favour of Asha Devi, the evidence of D.W.6, Daksha Niranjan Srivastava, expert has no importance. It appears that except this consideration of the expert, there is no other consideration. It appears that the trial Court proceeded to decide the dispute as if the left thumb impression on the agreement is admitted by the defendant No.1. It is the specific case that the agreement is forged document. Both the parties, therefore, examined their respective expert by the order of the Court. If in fact left thumb impression was admitted then there was no question of examination of expert arises. The trial Court has not at all considered this aspect. From perusal of the Judgment of the lower appellate Court, it appears that the lower appellate Court considered the evidences of the expert, i.e., P.W.14 and D.W.6 and then assigned reasons for not relying on the evidence of P.W.14 and has also assigned reasons for accepting the report of D.W.6. It is admitted fact that D.W.6 clearly opined that the left thumb impression on the agreement is not of defendant No.1, namely, Sarjug Rai. It may be mentioned here that Sarjug Rai had died. This is one of the ground on which the lower appellate Court has dismissed the plaintiff’s case. According to this finding of the appellate Court, the agreement of sale, ext.2, is not executed by defendant No.1 in favour of the plaintiff and it is not a genuine document. It may be mentioned here that Sarjug Rai had died. This is one of the ground on which the lower appellate Court has dismissed the plaintiff’s case. According to this finding of the appellate Court, the agreement of sale, ext.2, is not executed by defendant No.1 in favour of the plaintiff and it is not a genuine document. It is settled principle of law that a finding of fact arrived at by the appellate Court may be interfered with only when a substantial question of law arises for consideration. The question whether a document had been duly proved or otherwise genuine is essentially a question of fact. In the case of Rur Singh vs. Bachchan Kaur (2009)11 SCC 1 ., the Hon’ble Supreme Court while considering the genuineness of a Will held that ‘the question as to whether a Will is genuine is essentially a question of fact’. In the present case as has been discussed above, the lower appellate Court on the basis of the opinion of the expert recorded the finding that the left thumb impression of defendant No.1, late Sarjug Rai, is not on this agreement. Therefore, it leads to the conclusion that the agreement is not a genuine document, which is essentially a finding of fact. 14. From perusal of the Judgment of the lower appellate Court, it further appears that the lower appellate Court considered the evidences oral as well as documentary and then recorded a finding that the value of the property said to be covered under the alleged agreement is more than one lakh rupees, therefore, the lower appellate Court held that it is not believable that a prudent man can agree to sale the property more than one lakh value for a sum of Rs.45,000/-. This is again a finding of fact and one of the ground assigned by the lower appellate Court for holding that the agreement is not genuine document. It further appears that the lower appellate Court found that the agreement of sale is in small paper and which is not usually used. This is another ground for doubting the genuineness of the documents. 15. So far the submission of the learned counsel with respect to substantial question of law No.(i) is concerned, as discussed above, the lower appellate Court has assigned independent reasoning for arriving at a different finding. This is another ground for doubting the genuineness of the documents. 15. So far the submission of the learned counsel with respect to substantial question of law No.(i) is concerned, as discussed above, the lower appellate Court has assigned independent reasoning for arriving at a different finding. We have seen the reasons assigned by the trial Court also which are not at all acceptable, particularly when he has not at all considered the report of the expert wrongly assuming that the defendant has admitted the left thumb impression of ext.2. 16. In the case of Arumugham Vs. Sundarambal AIR 1999 SC 2216 , the Hon’ble Supreme Court at paragraph 14 has held that “the Second appellate Court cannot interfere with the Judgment of the first appellate Court on the ground that the first appellate Court had not come to close grips with the reasoning of the trial Court. It is open to the first appellate Court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on the other side.” Therefore, only because of the fact that the lower appellate Court has not met the reasonings, the Judgment cannot be said to be vitiated in view of the above detailed discussion. 17. Likewise, so far the second substantial questions of law is concerned, as stated above, the agreement has not been rejected on frivolous grounds, i.e., size of paper or non-affixing of stamp only, we have discussed the reasons assigned by the lower appellate Court in the above paragraphs. It is not the fact that the lower appellate Court has not considered the evidence of the expert adduced by the plaintiff rather it appears that the lower appellate Court after considering the evidences and also the experts of both the parties has held that the agreement is not genuine one. 18. So far substantial question No.(iii) is concerned, the learned counsel submitted that the subsequent transferee have no right to challenge the readiness and willingness of the plaintiff. From perusal of the decision relied upon by the learned counsel for the appellant, i.e., the case of Krishna Kumar (supra) and Jagraj Singh (supra), it appears that in both the cases, the original defendant vendor neither appeared nor filed written statement. From perusal of the decision relied upon by the learned counsel for the appellant, i.e., the case of Krishna Kumar (supra) and Jagraj Singh (supra), it appears that in both the cases, the original defendant vendor neither appeared nor filed written statement. In the present case the defendant No.1 had appeared and filed contesting written statement and he has raised the question that the document is forged, therefore, there is no question of readiness and willingness arises. 19. It is settled principle of law according to Section 16 (C) of the Specific Relief Act, the plaintiff is required to aver in the plaint and establish as a fact by evidence that he has always been ready and willing to perform his part of the contract. Therefore, irrespective of the fact whether there is any denial or not the plaintiff is entitled for the relief of specific performance of contract only if there is evidence to show that the plaintiff was always ready and willing to perform his part of the contract and is still ready. From perusal of the Judgment of the lower appellate Court, it appears that the lower appellate Court considered the evidence of the plaintiff and then recorded the finding that the appellant failed to prove his readiness and willingness. 20. In the case of Shri Rameshwar Prasad Vs. Sri Basanti Lal 2008 (3) PLJR 263 SC, the Hon’ble Supreme Court has held at paragraph 9 as follows :– “9. Section 16 (c) of the Act mandates the plaintiff to aver in the paint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. On considering almost identical fact situation it was held by this Court in Surya Narain Upadhyaya Vs. Ram Roop Pandey and Ors.( AIR 1994 SC 105 ) that the plaintiff had substantiated his plea.” 21. In view of the above facts, this finding of the lower appellate Court that the plaintiff was not ready and willing to perform his part of the contract is also a pure finding of fact as has been held by the Hon’ble Supreme Court in the case of Narinderjit Singh Vs. North Star Estate Promoters Limited (2012) 5 SCC 712 . North Star Estate Promoters Limited (2012) 5 SCC 712 . Here the substantial question of law No.(iii) is concerned, it can very easily be said that the suit for specific performance of contract cannot be decreed unless it is found that the plaintiff was ready and willing to perform his part of the agreement. The lower appellate Court found the same against the plaintiff, therefore, there is no question of decreeing the plaintiff’s suit for specific performance of contract arises. 22. In view of the above discussion, all the substantial questions of law formulated at the time of admission are answered against the appellant and in favour of the respondent. 23. In the result, this Second Appeal is dismissed. In the facts and circumstances of the case, no order as to cost.