* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. NO.80 OF 2004 & C.M. NO.4255 OF 2004
Decided on : 14th February, 2013
RAM DARASH & ORS. ...... Appellants
Through: Mr. Raj Kumar Sherawat, Advocate.
Versus
MAHESH KUMAR MANDAL ...... Respondent
Through: Mr. Deepak Dewan, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal filed under Section 100 CPC against the order dated 22.1.2004 passed by the learned Additional District Judge dismissing the appeal of the appellant.
2. This appeal is pending for the last more than eight years at the admission stage itself. Till date, no efforts have been made by the learned counsel for the appellants to show that any substantial question of law is arising from the appeal.
3. I have heard the leaned counsel for the appellants and have gone though the record. The contention of the learned counsel for the R.S.A. No.80/2004 Page 1 of 9 appellant is that number of substantial questions of law are arising from the present appeal and, therefore, the appeal deserves to be heard with regard to these questions. Before dealing with the so called substantial questions of law allegedly arising from the present appeal, it would be relevant to give brief background of the case.
4. The respondent herein, Mahesh Kumar Mandal (plaintiff in the original suit), filed a suit for specific performance, possession and mesne profits against Ram Darash Mahto (appellant No.1 herein) and his wife Bindrawati (since deceased and represented by her LRs being appellant Nos.2 to 6 herein). The averments made in the suit were that the appellants-defendants, who were husband and wife, represented themselves to be the owners of the property No.368, Lal Kuan near petrol pump, Badarpur, New Delhi consisting of three rooms and one bathroom besides open space/passage on the ground floor and one room with open space on the first floor along with land underneath measuring about 70 square yards. It was alleged that the appellants-defendants had agreed to sell the said property to the respondent-plaintiff on 13.3.1990 for a total sum of `51,000/-. Two documents were purported to have been executed; one on 13.3.1990 and the other on 31.3.1990. It was alleged R.S.A. No.80/2004 Page 2 of 9 that the appellants-defendants had received the entire amount of `51,000/- vide two transactions; one was for an amount of `23,600/- which was paid by the plaintiff/respondent through appellants/defendants to one Kalka Prasad on 13.3.1990, who was the mortgagee in respect of the three rooms of the suit property while as the balance amount of `27,400/- was paid to the appellants-defendants in cash on 31.3.1990. When the amount of `23,600/- was given to Kalka Prasad, he is stated to have handed over the possession of two rooms on the ground floor and one room on the first floor to the plaintiff-respondent, who claimed that he had put his own locks on the said premises. Later on, it was alleged that these locks were broken and the appellants-defendants had taken the possession of these three rooms also and instead of perfecting the title of the respondent-plaintiff, they refused to honour the transaction. This resulted in filing of a suit for specific performance of the agreement as well as the oral agreement between the parties in respect of the suit property and possession of the property and thirdly, the damages/mesne profits, which were claimed @ `500/- per month.
5. The appellants-defendants contested the suit by denying that they had ever received any payment either directly or through Kalka Prasad. R.S.A. No.80/2004 Page 3 of 9 They also denied the execution of the two documents dated 13.3.1990 and 31.3.1990 either by themselves or by Kalka Prasad. They also denied any oral agreement purported to have been arrived at with the respondent- plaintiff for the sale of the property.
6. On the pleadings of the parties, the following issues were framed :-
"i. Whether any oral or written agreement was entered into between the parties for sale of the suit premises? OPP ii. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP iii. Whether the defendants jointly received any consideration for agreement referred to (i) above from the plaintiff? OPP iv. Whether the agreement is forged and fabricated document? OPD v. Whether the plaintiff at any point of time came in possession of portion of suit premises? OPP vi. Whether the plaintiff is entitled to relief prayed for in para 10(i) of his plaint? OPP vii. Whether the plaintiff is entitled to damages/mesne profits as claimed in para 10(ii) of the plaint? OPP viii. Whether the plaintiff in alternate is entitled to recover `51,000/- for defendants jointly? OPP ix. Whether the plaintiff is entitled for interest, if so, on what rate and for what period on `51,000/-? OPP R.S.A. No.80/2004 Page 4 of 9 x. Relief."
7. The respondent-plaintiff in support of his case, examined himself as PW-1, Suresh Kumar Sani as PW-2, Kapil Dev Prasad, witness to the agreement as PW-3 and the appellant No.1 (Ram Darash Mahto) examined himself as DW-1, as a sole witness.
8. All the issues were decided against the appellants-defendants by the trial court. It was held by the trial court that the respondent-plaintiff has been able to prove that there was not only an oral agreement but also an agreement in writing for the sale of the property in question between him and the appellants-defendants for a total consideration of `51,000/- which was received by them and, therefore, the suit for specific performance, possession and damages was decreed. A decree of `57,900/- was also passed in favour of the plaintiff-respondent being the arrears of damages/mesne profits from 21.5.1990 till date of decision, which is 18.1.2000, and thereafter, the respondent-plaintiff was further held entitled to damages/mesne profits @ `500/- per month till the time the possession is handed over to him.
R.S.A. No.80/2004 Page 5 of 9
9. Feeling aggrieved by the aforesaid judgment and decree, the appellants herein preferred an appeal before the learned Additional District Judge. After hearing the arguments, the learned Additional District Judge upheld the judgment and the decree passed by the trial court and dismissed the appeal of the appellants vide order dated 22.1.2004.
10. Still feeling dissatisfied, the appellants filed the present regular second appeal in the year 2004 wherein certain substantial questions of law are stated to have been arising from the appeal. Mr. Sherawat, the learned counsel for the appellants has submitted that following questions of law are arising from the present appeal and, therefore, vehemently contended that the substantial questions of law be formulated and the appeal be heard on merits. The questions which have been formulated and handed over in the court are as under:-
"1. Whether the agreement/writing dated 31.3.1990 (Ex. P-2) fulfils the ingredients of a valid contract under Indian Contract Act between the plaintiff and the defendants and whether such agreement is enforceable under law?
2. Whether agreement/writing dated 31.1.1990 is an agreement or receipt or unregistered and insufficiently purported sale deed without any legal effect or consequences?R.S.A. No.80/2004 Page 6 of 9
3. Whether agreement/writing dated 31.1.1990 can be specifically enforced under provisions of specific relief Act when there is no stipulation or scope of enforcement of any agreement in the said document?
4. Whether there was any oral agreement between the parties to the suit in absence of any reference of any oral agreement in agreement/writing dated 31.1.1990?
5. Whether finding of the trial court in believing the theory of oral agreement without there being any cogent evidence to prove the same is correct?
6. Whether the plaintiff/respondent has discharged the heavy burden of proving oral agreement as required under law and as observed by the Division Bench of this Hon‟ble Court in the case of Sanjay Puri vs. Radhey Lal & Ors., RFA (OS) 84/2006?"
11. In addition to this, the learned counsel has also sought to place reliance on Union of India vs. Ibrahim Uddin & Anr.; JT 2012 (6) SC 466 and a judgment passed by Division Bench of this Court in R.F.A. (OS) No.84/2006 titled Sanjay Puri vs. Radhey Lal & Ors. decided on 24.12.2010.
12. I have gone through the proposed questions of law which have been formulated by the learned counsel for the appellants as well as the two judgments. So far as the law laid in the two judgments is R.S.A. No.80/2004 Page 7 of 9 concerned, that is not in dispute. In Ibrahim Uddin‟s case (supra), the Supreme Court has categorically observed as under:
"to be „substantial‟, a question of law must be debatable, not previously settled by law of the land or a binding precedent and must have a material on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned."
13. Keeping this parameter in view, the substantial question of law means a question of law which has not been considered or decided authoritatively by any court earlier, which has either binding or persuasive value, only then the second appeal would be admissible. If the proposed questions of law formulated by the appellants are considered, these are all essentially questions of fact and not questions of law much less to say substantial questions of law. Therefore, I feel that the questions as to whether agreement dated 31.3.1990 fulfils the ingredients of a valid contract; whether it was sufficiently stamped or not; whether the said agreement dated 31.1.1990 was enforceable by law or not; formulated by the learned counsel for the appellants, are essentially questions of fact which have already been considered and answered against the appellants by a concurrent finding. The learned counsel for the appellants has also referred to a judgment of this Court. I have gone R.S.A. No.80/2004 Page 8 of 9 through the said judgment also. The judgment is only striking a note of caution that in a case where a party is relying on an oral agreement between the parties for sale and purchase of a property, a very heavy onus is cast on him to prove that this agreement was actually between the parties. It seems that the learned counsel for the appellants wants to take advantage of this judgment to discredit the case of the respondent- plaintiff. While as the fact of the matter is that it is not only an oral agreement but also an agreement in writing on two different dates. This aspect has already been gone into by the two courts below and it has passed a decree of specific performance against the appellant. Therefore, in my considered opinion, none of the two judgments cited is helpful to the appellants.
14. For the reasons mentioned hereinabove, I feel as no substantial question of law is arising from the present appeal, accordingly, the appeal is dismissed.
V.K. SHALI, J.
FEBRUARY 14, 2013 'AA' R.S.A. No.80/2004 Page 9 of 9