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2019 DIGILAW 759 (GAU)

Tilak Gogoi v. Suren Gogii @ Surendra Nath

2019-06-18

SANJAY KUMAR MEDHI

body2019
JUDGMENT : Sanjay Kumar Medhi, J. The instant appeal is preferred against the judgment and decree dated 10.06.2008, passed by the learned Civil Judge (Senior Division), Lakhimpur in Title Appeal No. 2/2008, affirming the judgment and decree dated 22.11.2007 passed by the learned Munsiff No. 1, Lakhimpur in Title Suit No. 36/2006. 2. The facts of the case in a nutshell may be stated as follows. a. The appellant is the plaintiff in the suit. The suit was instituted for specific performance with regard to two Deeds of Mortgage, executed by the defendants in favour of the plaintiff. It is the case of the plaintiff that certain amount of loan was taken from the father of the present appellant by the defendant No. 1, leading to creation of mortgage in respect of certain plots of land. Subsequently, in the year 1991, the defendant No. 2 had purchased the said plot of land from the defendant No. 1, thereafter, the present suit was instituted. b. The learned Trial Court vide the judgment and order dated 22.11.2007, had dismissed the suit on contest. Against the issue No. 3, the learned Trial Court had come to a finding that the Deeds of Mortgage (Exhibits No. 1 & 2), apart from being vague were unregistered and therefore, there was no evidentiary value. c. The plaintiff had challenged the aforesaid judgment before the learned Appellate Court by filing an appeal. However, the First Appellate Court, vide the judgment and order dated 10.06.2018, had dismissed the appeal. As regards the aforesaid issue No. 3, the findings of the Trial Court have been affirmed. 3. I have heard Shri D. Das, learned counsel for the appellant as well as Shri K. K. Mahanta, learned Senior Counsel assisted by Shri B. Deka, learned counsel for the respondents. 4. This Court while admitting this appeal vide order dated 21.11.2008, had formulated the following substantial questions of law: i. Whether the dismissal of the plaintiff-appellants suit for specific performance of a contract of sale of immovable properties is correct in absence of consideration of the three vital ingredients of specific performance? ii. Whether the impugned judgment and decree passed by the learned Trial Court and affirmed by the Lower Appellate Court have been passed by misconstruing the law of specific performance of contract? 5. ii. Whether the impugned judgment and decree passed by the learned Trial Court and affirmed by the Lower Appellate Court have been passed by misconstruing the law of specific performance of contract? 5. Shri Das, learned counsel for the appellant submits that though the scope of interference by a Second Appellate Court in finding of fact is limited, in appropriate case, when there is perversity in the judgment appealed against, interest of justice would demand interference with such finding even though the same is concurrent finding of fact. He further submits that concurrent finding of fact is not an absolute bar, if in a given case, the appellant is able to make out a case of perversity in appreciating the evidence or ignoring/overlooking of the evidence, which were on records. Shri Das by assailing the judgment of both the Court has submitted that there are clear evidence regarding the land in question, that aspect of the matter should have been looked into by the Court below and on failure to do so, grave injustice has been caused to him. 6. Per contra, Shri Mahanta, learned senior counsel has submitted that the grounds of interference by the Second Appellate Court is absolutely limited and in this case, challenge is on concurrent finding of facts. The learned senior counsel further submits that the finding of the Court below more so, on the issue No. 3 pertaining to the Exhibits No. 1 & 2, which are Deeds of Mortgage, are concurrent finding, which are in accordance with law. 7. Admittedly, the said Deeds of Mortgage were unregistered. This Court while admitting the appeal had also called for the LCR, which have been perused. The Exhibits No. 1 & 2, are indeed unregistered documents and there no fault can be attributed in the findings arrived at by the learned Court below on the said issue. Since the unregistered Mortgage Deeds will not have any evidentiary value, this Court is of the opinion that no case for interference has been able to be made out by the appellant in the instant case and accordingly, the instant appeal is held to be without merits and dismissed. 8. Registry to transmit back the LCR, forthwith.