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Allahabad High Court · body

2017 DIGILAW 2605 (ALL)

ONKAR NARAIN MISHRA v. MUSTT LALLI

2017-11-10

MAHBOOB ALI

body2017
JUDGMENT Hon’ble Mahboob Ali, J.—The present second appeal has been filed against the judgement and decree dated 17.10.1978 passed by the District Judge, Mirzapur dismissing Civil Appeal No. 60 of 1976 Onkar Narain v. Smt. Lalli and others, arising out of the judgment and decree dated 30.3.1976 passed by the Trial Court in Original Suit No. 44 of 1971 (Onkar Narain Mishra v. Smt. Lalli and others). 2. Brief facts, which are necessary for the disposal of this Second Appeal, are recapitulated as under : Admittedly, defendant No. 1/respondent Smt. Lalli was bhumidhar in possession of 2-12-6 Bighas of land of Chak No. 137 (old No. 126) of village Vijaipur, District Mirzapur. Plaintiff/appellant (for short “appellant”) filed Suit No. 44 of 1971 Onkar Narain Mishra v. Smt. Lalli and others contending that defendant/respondent (for short “respondent”) Smt. Lalli entered into an agreement to sell the aforesaid land to him for a consideration of Rs. 9000/- and having received a sum of Rs. 4000/- as earnest money, executed an agreement of sale dated 27.2.1971 in his favour and also delivered possession to him over the land in question, she promised to execute the sale-deed within a period of two and a half months but she avoided the execution of the sale-deed inspite of repeated requests as also a notice and ultimately refused to do so on 12.5.1971, hence, appellant filed the aforesaid suit to have the sale-deed executed in his favour. During pendency of the suit, on 23.6.1971 respondent Smt. Lalli executed a sale-deed, in respect of the disputed land, in favour of Harihar Prasad and Jangali Prasad, who were impleaded as defendants No. 2 and 3 in the suit. The suit was contested by filing separate written statements by respondent Smt. Lalli and her vendees defendants No. 2 and 3/respondents, denying the execution of the agreement of sale dated 27.2.1971, relied upon by the appellant, as also alleging that the same was inadmissible in evidence being insufficiently stamped. They also denied the delivery of possession to the appellant and contended that respondent Smt. Lalli executed an agreement of sale regarding the disputed land in favour of Harihar Prasad and Jangali Prasad respondents No. 2 and 3 and in pursuance thereof, executed a sale-deed in their favour on 23.6.1971. 3. On the basis of pleadings of the parties, as many as six issues were framed. 3. On the basis of pleadings of the parties, as many as six issues were framed. Parties adduced oral as well as documentary evidence. The trial Court on the basis of scrutiny of the evidence, dismissed the suit of the appellant. Aggrieved by the said judgment and decree, appellant preferred an appeal, which has also been dismissed and at this juncture present appeal has been filed. 4. This Court, on presentation of the second appeal, admitted the said second appeal and passed following order on 29.11.1979, which is being extracted below : “Deficiency made good. After hearing learned counsel for the appellant, I am satisfied that the present appeal raises substantial questions of law as stated at ground Nos. I to IV in the memo of appeal. I, accordingly, admit the appeal and direct that notices be issued to the respondents.” 5. The aforesaid substantial questions of law, as stated at ground Nos. I to IV in the memo of appeal, are reproduced below : “(I) Because the view that the agreement to sell in favour of the appellant was inadmissible being insufficiently stamped, is incorrect. (II) Because the agreement to sell in favour of the appellant being once exhibited, the question of its being insufficiently stamped and on that account being inadmissible, cannot be raised at all. (III) Because the same principle will apply even to a document which had been exhibited by an order passed by the Judge after fully applying his mind whether the question was raised in the written statement or not. (IV) Because the view that the Judge did not judicially determine the issue, is incorrect.” 6. With the consent of the parties, present second appeal has been taken up for final hearing. 7. Heard learned counsels for the parties. 8. Out of the six issues settled by the Trial Court, the main issue which was crucial for the decision of the case was- “whether the defendant No. 1 executed an agreement dated 27.2.1971 to sell her land to plaintiff ?. If so, whether the plaintiff gave Rs. 4000/- as advance money to the defendant No. 1 and its effect?” On this issue, the trial Court has concluded that defendant No. 1/respondent Smt Lalli did not execute the agreement of sale dated 27.2.1971, nor did she receive Rs. 4000/- as earnest money from the plaintiff/appellant. If so, whether the plaintiff gave Rs. 4000/- as advance money to the defendant No. 1 and its effect?” On this issue, the trial Court has concluded that defendant No. 1/respondent Smt Lalli did not execute the agreement of sale dated 27.2.1971, nor did she receive Rs. 4000/- as earnest money from the plaintiff/appellant. As regards the effect of the non-execution of the impugned agreement, the trial Court has proceeded to hold that the claim of the plaintiff/appellant is liable to be dismissed. 9. On the basis of the finding that respondent Smt Lalli did not execute the agreement of sale in question dated 27.2.1971 in favour of the appellant, the trial Court has proceeded to dismiss the suit vide judgment and order dated 30.3.1976 against which an appeal was preferred. 10. The Lower Appellate Court after re-examining and re-appreciating the evidence, has proceeded to affirm the conclusion of the trial Court regarding the non-execution of the agreement of sale in question and dismissed the appeal with the finding that appellant has failed to prove the execution of the agreement of sale dated 27.2.1971, on which he relied. 11. The substantial questions of law as mentioned at grounds No. I to IV in the memo of appeal are to the effect that whether the impugned agreement of sale dated 27.2.1971 which has been exhibited, can be rendered inadmissible on the ground of its being insufficiently stamped and whether the trial Court has not judicially determined the issue of admissibility of the said agreement?. 12. Respondent Smt. Lalli in her written statement contended that the agreement dated 27.2.1971 was inadmissible because of insufficient stamp. The pendentlite purchasers respondents Harihar Prasad and Jangli Prasad, have also alleged that the said agreement was inadmissible of its being insufficiently stamped. 13. The learned Trial Court has observed that when this document (agreement) was being admitted on the date of settlement of issues, the defendants/respondents did not register any objection to it, consequently, it was brought on record subject to proof. The Trial Court has further observed that defendants/respondents have also not raised any objection about the admissibility of this agreement at the time when it was marked as exhibit during the course of examination-in-chief of PW-2 Mahabir Prasad and they registered their objection regarding the admissibility of this document only during the later part of cross- examination of PW-2. The Trial Court has further observed that defendants/respondents have also not raised any objection about the admissibility of this agreement at the time when it was marked as exhibit during the course of examination-in-chief of PW-2 Mahabir Prasad and they registered their objection regarding the admissibility of this document only during the later part of cross- examination of PW-2. The Trial Court, in these circumstances, held the agreement of sale dated 27.2.1971 admissible in evidence. 14. The first appellate Court however, has found that an objection as to the admissibility of the agreement of sale in question, on account of its being insufficiently stamped, was raised by the respondents at the very outset in their written statements and the same was repeated during cross-examination of PW-2 Mahabir Prasad when an attempt was made to prove it. The first appellate Court, observing that the Trial Court did not judicially determine the matter, has proceeded to hold that the document, that is, agreement of sale dated 27.2.1971, is inadmissible in evidence for want of sufficient stamp. 15. Both the Courts below scrutinizing the evidence adduced by the parties and taking stock of all the facts and circumstances of the case, have proceeded to conclude that the agreement of sale in question dated 27.2.1971 was not executed by defendant No. 1/respondent Smt. Lalli in favour of the plaintiff/appellant. 16. Learned counsel on behalf of the appellant contended that the Trial Court has wrongly held that respondent Smt. Lalli did not execute agreement of sale dated 27.2.1971 in favour of the appellant observing that she was a pardanashin lady and disbeliving PW-2 Mahabir Prasad. In this regard, learned counsel has submitted that Smt. Lalli was not a pardanashin lady and execution of the agreement of 27.2.1971 has been proved by PW-7 Bhola Nath. Learned counsel next contended that the agreement of sale dated 30.1.1971 in favour of respondents No. 2 and 3 was anti-dated because respondent Smt Lalli got it prepared 2-3 months after 30.1.1971, the date of purchase of stamp paper by Kanhaiya Lal PW-5, after taking this stamp paper from Kanhiya Lal. It transpires from the above submissions that learned counsel for the appellant has confined his submissions to the finding of fact only. It transpires from the above submissions that learned counsel for the appellant has confined his submissions to the finding of fact only. Learned counsel for the respondents, on the other hand, contended that in the present case categorical finding of fact has been returned by both the Courts below regarding the fact that the impugned agreement of sale dated 27.2.1971, relied upon by the appellant, was not executed by respondent Smt. Lalli as such judgments of the Courts below are rightful judgments, concluded by categorical finding of fact, as such they warrant no interference. In the case of H.P. Pyarejan v. Dasappa, AIR 2006 SC 1144 , Hon’ble Supreme Court has observed : “.....Under Section 100 of the Code (as amended in 1976) the jurisdiction of the Court to interfere with the judgments of the Courts below is confined to hearing of substantial question of law. Interference with the finding of fact by the High Court is not warranted, if it invokes reappreciation of evidence......” Hon’ble Apex Court in the case of P. Chandrasekharan and others v. S. Kanakarajan and others, (2007) 5 SCC 669 and Kashmir Singh v. Harnam Singh and another, 2008 (3) AWC 2323 (SC), has clearly held that when in the fact of case substantial question of law arises, then only interference at the level of High Court is feasible. Here no substantial question of law has arisen, as Courts below have not ignored material evidence nor have accepted any inadmissible evidence nor have drawn any wrong inferences by placing wrong burden. The decision is based on appreciation of evidence and taking as a whole, the view which has been taken, being supported by oral as well as documentary evidence, as such no substantial question of law arises 17. Learned counsel for the appellant has also urged that the lower appellate Court has wrongly held that the agreement of sale dated 27.2.1971 was inadmissible in evidence for want of sufficient stamp. This submission has no force because, in view of the finding that the impugned agreement of sale has not been executed, the issue whether the said agreement is admissible or inadmissible in evidence, becomes irrelevant rather immaterial for consideration. 18. Learned counsel on behalf of the respondents contended with vehemence that there is no substantial question of law in this appeal. 19. 18. Learned counsel on behalf of the respondents contended with vehemence that there is no substantial question of law in this appeal. 19. Keeping in view the concurrent finding of fact of both the Courts below regarding the non-execution of the agreement of sale dated 27.2.1971 which was the basis of the suit, the aforesaid substantial question of law becomes immaterial and needs no determination because the either-way-decision on this question, holding the agreement of sale either admissible or inadmissible in evidence, will not affect the merit and outcome of the case. In this regard Section 99, CPC is also relevant. Section 99 of the Code of Civil Procedure, 1908 provides as under : 1 “99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction: No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder [or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court: [Provided that nothing in this section shall apply to non-joinder of a necessary party.] 20. In view of the provisions contained in Section 99 of the Code of Civil Procedure (supra) and the judgment of Hon’ble Supreme Court in Kuldeep Kumar Dubey and others v. Ramesh Chandra Goel, AIR 2015 SC 1135 , a defect which does not affect the merit of the case, cannot be a ground to reverse the decree of the trial Court. 21. In this background of the case, it is concluded that there is no such substantial question of law involved in this second appeal, the decision of which in favour of the appellant, may result in reversal of the decree of the trial Court. 22. The concurrent finding of fact of both the Courts below regarding non-execution of the agreement of sale dated 27.2.1971 does not suffer from any infirmity or error of law nor any such infirmity or error of law has been pointed out by the learned counsel for the appellant. 23. Accordingly, this Second Appeal is dismissed. 24. No order as to costs.