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2015 DIGILAW 139 (ALL)

Rajendra Prasad Agrahari v. Saroj Agrahari

2015-01-21

SUDHIR AGARWAL

body2015
JUDGMENT Sudhir Agarwal,J. 1. Heard Sri Tarun Verma, learned counsel for the appellant and perused the record. 2. This is a defendant's second appeal filed under Section 100 C.P.C. The plaintiff-respondent preferred Original Suit No. 2692 of 1987 for specific performance enforcing agreement to sell dated 14.12.1984, alleged to have been executed between the parties for sale of property in dispute on a total consideration of Rs. 2,000/-, whereagainst it is said that Rs. 1500/- was paid advance and Rs. 500/- was to be paid at the time of execution of sale deed. 3. The defendant-appellant contested suit by alleging that she never executed the sale deed but on the other hand went to Sub-Registrar's office on 14.12.1984 for execution of rent deed and plaintiff's husband got signatures of defendant on certain blank papers and stamp papers. It was also stated in para 34 of the written statement that her brother raised construction over the plot in dispute and in May, 1985 handed over possession to the husband of plaintiff on monthly rent of Rs. 100/-. 4. The Trial court formulated following five issues: ^^1- D;k eqokbZnk c; fnukad fnukad 14-12-84 izfroknh }kjk okfnuh ds gd esa rgjhj fd;k x;k gS vkSj okfnuh mDr eqokbZnkc; ds vk/kkj ij izfroknh ls fcdz; i= fy[kokus dk vf/kdkjh gS\ 2- D;k okn dk ewY;kadu de rFkk iznRr U;k;'kqYd vi;kZIr gS\ 3- D;k U;k;ky; dks okn lquus dk vf/kdkj izkIr ugha gS\ 4- D;k okn esa vko';d i{kdkjku cuk;s tkus dks nks"k gS\ 5- D;k okfnuh fdl vuqrks"k dks ikus dk vf/kdkjh gS\** English translation by the Court "1. Whether the agreement dated 14.12.1984 has been scribed by the defendant in favour of the lady plaintiff and whether the lady plaintiff, on the basis of aforesaid agreement, is entitled to get the sale deed executed by the defendant? 2. Whether the suit is undervalued and the court fee paid is insufficient? 3. Whether the court has no jurisdiction over the suit? 4. Whether the suit suffers from non - joinder of necessary parties? 5. What relief the lady plaintiff is entitled to get? 5. Issue no. 1 having been answered in favour of plaintiff, the Trial Court decreed suit vide judgment and decree dated 31.07.2008 passed by Additional Civil Judge (Junior Division), Gorakhpur, whereagainst defendant-appellant preferred Civil Appeal No. 52 of 2008. Whether the suit suffers from non - joinder of necessary parties? 5. What relief the lady plaintiff is entitled to get? 5. Issue no. 1 having been answered in favour of plaintiff, the Trial Court decreed suit vide judgment and decree dated 31.07.2008 passed by Additional Civil Judge (Junior Division), Gorakhpur, whereagainst defendant-appellant preferred Civil Appeal No. 52 of 2008. The Lower Appellate Court formulated following two points for determination in appeal: "1. Whether the finding of the court below that the disputed out of total agreement to sale was in fact executed by the appellant defendant after receiving part of advance sale consideration 1500/- sale consideration of Rs. 2000/- and handed over its position to the plaintiff, who constructed a house thereon has been correctly recorded. 2. Whether the finding of the court below that the respondent was and has been ready and wiling to perform his part of on agreement has been correctly recorded." 6. Both these questions have been answered in favour of plaintiff-respondent and defendant's civil appeal has also been dismissed by Lower Appellate Court vide judgment and decree dated 30.09.2014 passed by Additional District Judge, Court No. III, Gorakhpur. 7. Learned counsel for the appellant submitted that original agreement was not placed on record and it is only the certified copy thereof which was placed at the time of appeal and, therefore, the document itself has not been proved, the said document could not have been relied by courts below and they have committed manifest error. 8. It is however evident from record that so far as execution of document dated 14.12.1984 is concerned, it was not disputed by defendant himself and, therefore, the document itself was not in dispute. However, the defendant pleaded that she has executed a different kind of document and not agreement to sale, hence onus lies upon defendant to prove this defence, which she has failed. I, therefore, do not find that the issue sought to be argued before this Court does arise in the matter and it can be said to be a substantial question of law. 9. Then it is contended that notice allegedly sent by plaintiff was also not proved. 10. However, the record shows that plaintiff placed on record copy of notice sent by registered post dated 24.04.1987, 16.05.1987 and 25.07.1987 and copy of receipts were also placed on record. 9. Then it is contended that notice allegedly sent by plaintiff was also not proved. 10. However, the record shows that plaintiff placed on record copy of notice sent by registered post dated 24.04.1987, 16.05.1987 and 25.07.1987 and copy of receipts were also placed on record. These facts are mentioned in the judgment of Trial Court as under: ^^oknh us vius dFku ds leFkZu esa izys[kh; lk{; esa QksVks dkih eqgkbZnkc; dkxt la[;k 8 x@ 1 rk 8x@3 ] o lwph 33@x ls vly jftLVMZ uksfVl fnukad 24-4-87 dkxt la[;k 34@x] vly jftLV~h jlhn dkxt la[;k 35@d] vly jftLV~h jlhn dkxt la[;k 35@d] vly jftLVMZ uksfVl dkxt la0 36@d fnukad 16-5-87] vly ,dukystesUV dkxt la[;k 37@d] ewy dkcZu izfr vly uksfVl fnukad 25-7-87 rFkk lwph 40@x ls lR; izfrfyfi eqokfgnkc; fnukad 14-12-8 dkxt la[;k 41@x] vnn vly jlhn ckor lhesUV dkxt la[;k 42x@ 1 rk 42x@4] vly jlhn ckor bZV o vly jlhn ckor tek udnh dkxt la[;k 42x@ 5 rk 42x@ 21 rFkk lwph 62@x ls vly jftLVMZ uksfVl dkxt la[;k 63@x rFkk lwph 99@x ls vly eqokfgnkc;k&dkxt la[;k 100@d nkf[ky fd;k x;k gSA** English translation by the Court "The plaintiff, in support of his statement, has in documentary evidence submitted papers: photocopy of the agreement being paper Nos. 8C/1 to 8C/3; true copy of the registered notice being paper No. 34/C dated 24.04.87, true copy of the registry receipt being paper No. 35/A, true copy of the registry receipt being paper No. 35/A, true copy of the registered notice dated 16.05.87 being paper No. 36/A, true copy of the acknowledgement being paper No. 37/A and original carbon copy of the notice dated 25.07.87 vide index 33/C; true copy of the agreement dated 14.12.08 being paper No. 41/C, original receipt in relation to cement being paper Nos. 42C/1 to 42C/4 and original receipt in relation to bricks and original receipt in relation to cash deposit being paper Nos. 42C/5 to 42C/21 vide index paper No. 40C; original registered notice being paper No. 63/C vide index 62/C; and original agreement being paper No. 100/C vide index 99C ." 11. There is nothing on record to show that the aforesaid mention of record is in any manner incorrect or contrary to record. 12. Learned counsel for the appellant lastly placed reliance on a decision of this Court in Daya Shankar Vs. There is nothing on record to show that the aforesaid mention of record is in any manner incorrect or contrary to record. 12. Learned counsel for the appellant lastly placed reliance on a decision of this Court in Daya Shankar Vs. Smt. Bachi and others, AIR 1982 All 376 but a careful perusal thereof shows that this judgment also does not help him in any manner. 13. Both the courts below have recorded concurrent findings of fact which could not be shown perverse in any manner. It is not the case of the appellant that any relevant evidence was ignored or any impermissible or irrelevant evidence was taken into account or there is any other perversity, legal or otherwise, in the judgments impugned in this second appeal. I, therefore, do not find that any substantial question of law has arisen in this second appeal warranting consideration by this Court. 14. Dismissed.