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2015 DIGILAW 2547 (ALL)

Laxmi Narain v. Shyam Lal

2015-08-21

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. Plaintiff-Appellant instituted a suit for specific performance of contract in respect of half portion of land of Khata No.484, plot No. 146 having an area 1.736 hectares. According to the plaintiff, defendant wanted to dispose of his land and the plaintiff agreed to purchase the same for a consideration of Rs. 38,000/- and a sum of Rs. 30,000/- was paid by the appellant earlier and a sum of Rs. 5,000/- was paid before the Registrar. Agreement to sell was executed on 14.6.2005. According to the term of the agreement, a sale-deed was to be executed within a period of 3 years upon payment of balance consideration amounting to Rs. 3,000/-. 2. Suit was contested by the defendant, who stated that being a rustic villager, he is not well versed with the legal proceedings and he has not executed any agreement to sale, as is being claimed. Defendant's case instead was that he had taken a sum of Rs. 10,000/- as loan, and the agricultural land was kept, as mortgage, with the plaintiff for a period of 3 years, where after, the land was to be returned. According to the defendant, only a sum of Rs. 5,000/- was paid to him prior to the execution of the document, which was never readout and explained to him and he thought it to be a mortgage and a sum of Rs. 5,000/- was paid to him before the Registrar and the plaintiff was put in possession to utilize the land for a period of 3 years. The defendant, therefore, stated that the execution of agreement to sell was fraudulently procured. 3. Trial court, on the basis of the respective pleas of the parties, framed 5 issues and a finding was returned that a sum of Rs. 35,000/- has been paid alongwith the agreement to sale and the suit was decreed for specific performance. 4. Defendant preferred an appeal reiterating his stand taken in the written statement. Appellate Court examined the materials brought on record and disbelieved the case of plaintiff with regard to payment of a sum of Rs. 35,000/- to the defendant. The appellate court relied upon the statement of the plaintiff's witness itself wherein P.W. 2 had admitted knowledge about payment of the amount at the residence to which he was not a witness, whereas the other witness stated that the payment of Rs. 35,000/- to the defendant. The appellate court relied upon the statement of the plaintiff's witness itself wherein P.W. 2 had admitted knowledge about payment of the amount at the residence to which he was not a witness, whereas the other witness stated that the payment of Rs. 30,000/- was delivered at the seat of the lawyer. The lower appellate court further observed that in case the plaintiff's case was treated to be correct that a sum of Rs. 35,000/- had already been paid, then there was no justification for deferring the execution of sale by a period of 3 years when remaining amount of Rs. 3,000/- only remained payable. The appellate court found substance in the defendant's case that being a poor and rustic villager, he has been duped by the plaintiff, who has taken advantage of his need to receive a sum of Rs. 10,000/-, as loan, which according to the defendant, was received by mortgaging his land and this transaction has been mis-utilised by the plaintiff. On the basis of the aforesaid, plaintiff's suit has been dismissed. 5. Aggrieved by the judgment and decree of the lower appellate court, appellant has preferred the present second appeal. 6. Learned counsel for the appellant submits that the finding which has been recorded by the trial court that the agreement to sell was duly executed and a sum of Rs. 35,000/- had been paid, was not specifically reversed in appeal and, therefore, in view of the provisions of Order-XXXXI Rule-31 CPC, the order passed by the lower appellate court is bad in law. Reliance has been placed upon the decision of Hon. Apex Court in A.M. Sangappa alias Sangappa Vs. Sangondeppa and another, (2013) 14 SCALE, 384. 7. Learned counsel then submits that the relevant issues in support of the findings returned by the lower appellate court has not been framed nor any evidence was led in respect thereof and, therefore, trial stands vitiated. Learned counsel further submits that there would be presumption with regard to the correctness of the contents of agreement to sell once it had been registered, and it could not be disbelieved by the lower appellate court. 8. Learned counsel further submits that there would be presumption with regard to the correctness of the contents of agreement to sell once it had been registered, and it could not be disbelieved by the lower appellate court. 8. Having considered the submissions aforesaid, this court finds that the lower appellate court has not only dealt with the facts of the case as well as findings returned by the lower appellate court but has specifically reversed the findings of the trial court. The statement of the witness, which has been relied upon by the trial court, was extensively dealt with by the lower appellate court to return a finding that only payment of Rs. 5,000/- before the Registrar was admitted and the plaintiff had failed to prove that a sum of Rs. 30,000/- had been paid prior to execution of the agreement to sell. The statement of the plaintiff's witnesses as well as material contradiction had been specifically noticed, which is clearly borne out from the record. The conclusion drawn by the lower appellate court, in this regard, cannot be said to be perverse or erroneous. This Court finds substance in the reasonings assigned by the lower appellate court to accept the case of the defendant that as per the plain reading of the plaintiff's case, once Rs. 35,000/- has been paid, there had been no justification for a period of 3 years to be provided for execution of the sale-deed. Drawing the inference that such period of 3 years was provided, supports the case of the defendant that the land was mortgaged for a period of 3 years. The finding returned by the lower appellate court as well as inference drawn by it, is based upon materials available on record, which is not otherwise, perverse or erroneous. This Court in exercise of its jurisdiction under Section 100 CPC, is not required to reappraise the evidence as is being attempted by the learned counsel for the appellant. 9. So far as the decision relied upon by the Hon'ble Supreme Court is concerned, there is no quarrel on the legal proposition so raised, but on the facts, this court finds that the findings returned by the trial court has been dealt with and specifically reversed, and therefore, the submission made by the learned counsel has no substance. 10. 9. So far as the decision relied upon by the Hon'ble Supreme Court is concerned, there is no quarrel on the legal proposition so raised, but on the facts, this court finds that the findings returned by the trial court has been dealt with and specifically reversed, and therefore, the submission made by the learned counsel has no substance. 10. This Court further finds that the inference drawn by the lower appellate court that the possession of the land remained with the plaintiff and that is how the sum of Rs. 10,000/-was sought to be adjusted could not be disputed by plaintiff, also cannot be said to be without any basis or material. 11. No substantial question of law arises for consideration of this court in the present second appeal, which is concluded by findings of fact. 12. Appeal is accordingly, dismissed under Order XLI Rule 11 CPC.