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2019 DIGILAW 552 (ORI)

Jagannath Sahu v. Santosh Kumar Panda

2019-08-29

A.K.RATH

body2019
JUDGMENT A.K. Rath, J. - Defendants 3 and 4 are the appellants against a confirming judgment. 2. The plaintiff-respondent no.l instituted the suit for specific performance of contract and in the alternative for refund of consideration amount of Rs.40,000/-. The case of the plaintiff was that the suit property was recorded in the name of defendant no.l, father of defendant no.2. Defendants 1 and 2 approached the plaintiff to sell the land. The plaintiff agreed to purchase the same. The consideration amount was fixed at Rs.75,000/-. On 10.6.1993 defendants 1 and 2 executed an agreement to sell, Ext.2 in favour of the plaintiff and received an amount of Rs.40,000/- towards part consideration. The plaintiff was ready and willing to perform the part contract. The defendants 1 and 2 avoided the same. On 18.4.1995, the plaintiff issued a legal notice to defendants 1 and 2 to execute the sale deed, but there was no response. It is further pleaded that the defendants 3 and 4 have purchased a portion of the suit property from defendants 1 and 2 by means of a R.S.D.No.676 dated 16.8.1994 for a consideration of Rs.50,000/-, Ext.A/1. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. Defendants 1 and 2 filed written statement pleading inter alia that they had not executed any agreement to sell in favour of the plaintiff. They sold a portion of the suit land to defendants 3 and 4 for valid consideration and delivered possession. Defendants 3 and 4 filed written statement stating that they are bona fide purchasers for value. They are in possession of the suit land. 4. Stemming on the pleadings of the parties, learned trial court struck six issues. Both parties led evidence, oral and documentary. Learned trial court decreed the suit holding that defendants 1 and 2 had executed an agreement to sell, Ext.2, in favour of the plaintiff and received Rs.40,000/- towards part consideration. Defendant no.l cancelled the sale deed, vide Ext.5. No attesting witnesses had been examined by the defendants to prove the factum of execution, passing of consideration and delivery of possession. Defendants 3 and 4 had not purchased the land from defendants 1 and 2. Aggrieved by and dissatisfied with the judgment and decree, the defendant 3 and 4 preferred Title Appeal No.33 of 2001 before the learned Additional District Judge, Sonepur. Defendants 3 and 4 had not purchased the land from defendants 1 and 2. Aggrieved by and dissatisfied with the judgment and decree, the defendant 3 and 4 preferred Title Appeal No.33 of 2001 before the learned Additional District Judge, Sonepur. Learned appellate court held that the defendants 1 and 2 have not filed appeal. The findings are binding on them. The appellants have no right to challenge the findings rendered by the learned trial court. It further held that certified copy of Ext.A/1 has not been validly proved. Held so, it dismissed the appeal. 5. This appeal was admitted on the following substantial questions of law: "a. Whether the lower appellate court was right in holding that the defendant nos. l and 2, the vendors of the present appellants having not challenged the decree for execution of sale-deed, the decree has become binding on all respondents and the appeal at the instance of the purchasers could not challenge such findings. b. Whether the defendant nos. 3 and 4 are entitled to protection as bona fide purchaser for value without notice of the plaintiff's contract and such a finding was required to be reached before the plaintiff's suit could be decree." 6. Heard Mr. Anam Charan Panda, learned Advocate on behalf of Mr. Ashok Mukharjee, learned Senior Advocate for the appellants. None appears for the respondents. 7. Mr. Panda, learned Advocate for the appellants submits that defendants 3 and 4-appellants have purchased a portion of the suit land from defendant no.l by means of a R.S.D.No.676 dated 16.8.1994, Ext.A/1. They are parties to the suit. They are not lis pendense purchasers. They can assail the judgment and decree passed by the learned trial court. The finding of the learned appellate court is perverse. He further submits that neither the learned trial court nor the appellate court came to a conclusion that the plaintiff was/is ready and willing to perform his part of contract. 8. Right to appeal is described as a creature of statute as held by the apex Court in the case of Smt. Ganga Bai vs. Vijay Kumar and others, AIR 1974 SC 1126 . The expression of 'appeal' has not been defined in C.P.C.. 8. Right to appeal is described as a creature of statute as held by the apex Court in the case of Smt. Ganga Bai vs. Vijay Kumar and others, AIR 1974 SC 1126 . The expression of 'appeal' has not been defined in C.P.C.. The Privy Council in Nagendra Nath Dey vs. Suresh Chandra Dey, AIR 1932 PC 165 held that there is no definition of appeal in the Code of Civil Procedure, but there is no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent. 9. A party to a suit adversely affected by a decree or any of his representatives-in-interest may file an appeal. But a person who is not a party to a decree or order may, with the leave of the court, prefer an appeal from such decree or order if he is either bound by a decree or order or is aggrieved by it or is otherwise prejudicially affected by it. 10. The appellants were defendants 3 and 4 in the suit. They contested the suit. They are essentially aggrieved by the judgment and decree. They can assail the same in the first appeal. Merely because, defendants 1 and 2 have not filed any appeal or cross-objection to the appeal filed by the appellants, the same is not per se a ground to dismiss the appeal. The findings of the learned appellate court that since defendants 1 and 2 have not filed appeal or cross-objection, the finding of the learned trial court is binding, are perverse. First appeal is a valuable right. A duty is cast upon the appellate court to scan the evidence and pleadings. The impugned judgment shows that the learned Additional District Judge has failed to discharge the obligation placed on it as a first appellate court. 11. In view of the foregoing discussions, the judgment of the learned appellate court is set aside. The appeal is allowed. The matter is remitted back to the learned District Judge, Sonepur for de novo hearing. The impugned judgment shows that the learned Additional District Judge has failed to discharge the obligation placed on it as a first appellate court. 11. In view of the foregoing discussions, the judgment of the learned appellate court is set aside. The appeal is allowed. The matter is remitted back to the learned District Judge, Sonepur for de novo hearing. The appellants shall appear before the learned appellate court on 30 th September, 2019, where after the learned appellate court shall issue notice to the respondents and conclude the hearing of the appeal by end of December, 2019.