THE HONOURABLE SRI JUSTICE K. SARATH
S.A.Nos.120 and 126 of 2023
COMMON JUDGMENT
Heard Sri H. Venugopal, learned Senior Counsel
for Sri Ravi Kumar Vadlakonda, learned counsel for
the appellant and Sri Gandra Mohan Rao, learned
Senior Counsel for Sri T. Rajinikanth Reddy and Sri C.
Raghu, learned Senior Counsel for Sri Erigi Ganesh,
appearing for the respondents.
2. Since both these appeals arise out of the common Judgment and Decree dated 18.10.2022 in A.S.Nos.1 and 7 of 2017 on the file of III Additional District Judge at Karimnagar, they are being disposed of by this common judgment.
3. The appellant and the respondent No.1 filed suits against each other. The respondent No.1 in both the appeals filed O.S.No.320 of 2002 on the file of the 2 SK, J S.A.Nos.120 and 126 of 2023 Principal Junior Civil Judge at Karimnagar against the appellant in both the appeals for perpetual injunction stating that he is the owner and possessor of land to an extent of Ac.1-17 gts in Sy.No.207/AA Situated at Kothapalli, Karimnagar Mandal and District and the appellant in both the appeals filed O.S.No.154 of 2004 on the file of the Principal Junior Civil Judge at Karimnagar for specific performance of contract dated 07.03.1988 in respect of same land.
4. Both parties have filed written statements in the suits vice-versa. The trial Court after considering the pleadings framed the following issues in O.S.No.320 of 2002:
1. Whether the plaintiff is entitled to perpetual injunction as prayed for ?
2. To what relief?
and framed the following issues in O.S.No.154 of 2004:
1. Whether the plaintiff is entitled to the relief of specific performance as prayed for ?3
SK, J S.A.Nos.120 and 126 of 2023
2. To what relief?
5. The trial Court clubbed both the suits, conducted common trial and passed common Judgment and Decree in both the suits. The trial Court treated the respondent No.1 herein as the plaintiff and the appellant herein as the defendant.
6. During trial, P.Ws.1 to 8 were examined and Exs.A1 to A14 were marked on behalf of the plaintiff. D.Ws.1 to 4 were examined and Exs.B1 to B13 were marked on behalf of the defendant.
7. The trial Court after conducting full-fledged trial, decreed the suit in favour of the plaintiff in O.S.No.320 of 2002 granting perpetual injunction and dismissed the suit in O.S.No.154 of 2004 for specific performance of contract filed by the appellant herein.
8. Aggrieved by the said common judgment, the defendant in O.S.No.320 of 2022 filed A.S.Nos.1 and 7 of 2017 on the file of the III Additional District 4 SK, J S.A.Nos.120 and 126 of 2023 Judge at Karimnagar. The Appellate Court heard both the appeals commonly and framed the following points for consideration:
1. Whether the plaintiff in O.S.No.154 of 2004 has succeeded in proving that the plaintiff in O.S.No.320 of 2022 has executed a registered sale deed for the schedule property along with his brother (D.W.2).
2. Whether the plaintiff in O.S.No.320 of 2002 has succeeded in proving his possession over the schedule property?
3. Whether plaintiff in O.S.No.154 of 2004 has permitted the defendant to cultivate the suit land of paying of profits to him?
4. Whether the lower Court has committed any error in decreeing the suit?
9. During pendency of these appeals, the plaintiff in O.S.No.320 of 2002 died and his legal representatives were brought on record. The appellate Court, after hearing both sides and perusal of the record and after appreciating the evidence on record dismissed both the 5 SK, J S.A.Nos.120 and 126 of 2023 appeals confirming the Judgment of the trial Court through the common Judgment dated 18.10.2022. Aggrieved by the said Judgment and Decree, the defendant preferred the present Second Appeals.
10. Learned Senior Counsel for the appellant/ defendant submits that as the defendant permitted the plaintiff to cultivate the suit land, the name of the plaintiff was continued as possessor of the suit land in the revenue records and when the plaintiff failed to pay the profits, the defendant entered in possession of the suit land from June, 2002 onwards. He submits that the Courts below erred in believing Exs.A1 to A14 without examining any supported evidence with respect to those documents and wrongly held that the plaintiff was in possession as on the date of filing of the suit. He submits that the Courts below failed to see that the revenue records or entries therein do not confer any title as they cannot be changed on the basis of agreement of sale dated 07.03.1988. He submits 6 SK, J S.A.Nos.120 and 126 of 2023 that the Court below failed to see that Exs.B12 and B13 are important documents to prove the execution of Ex.B1, which clearly shows about the delivery of possession in favour of the defendant. He submits that though the suit for specific performance of contract was filed within three years from the date of refusal, the Courts below erred in holding that the suit is barred by limitation and he prays to allow the appeals.
11. Learned Senior Counsel for the appellant/defendant has relied on the following judgments;
1. Hasmat Ali vs. Amina Bibi and others 1
2. Hero Vinoth (minor) v. Seshammal 2
3. State of Rajasthan and others vs. Shiv Dayal and another 3
4. Janak Dulari Devi and another vs. Kapildeo Rai and another 4 1 2021 SCC OnLine SC 1142 2 AIR 2006 SC 2234 3 (2019) 8 SCC 637 4 (2011) 6 SCC 555 7 SK, J S.A.Nos.120 and 126 of 2023
5. Kulwant Kaur and others v. Gurdial Singh Mann (dead) by LRs. and others 5
6. Madina Begum and another vs. Shiv Murti Prasad Pandey and others 6
7. Gunwantbhai Mulchand Shah and others v. Anton Elis Farel and others 7
8. Om Prakash Berlia and another v. Unit Trust of India and others 8
12. On the other hand, learned Senior Counsel for the respondents/plaintiffs submits that the plaintiff is the absolute owner and possessor of the suit schedule property which was allotted to him in the partition along with his brother and his name was entered in the revenue records and the plaintiff has never executed any agreement of sale in favour of the defendant on 07.03.1988 and it is a forged and fabricated document. They submit that the Courts below have rightly held that there is no averment in Ex.B2 that the plaintiff and his brother had executed Ex.B1 in favour of the defendant in respect of Ac.2-33 5 (2001) 4 SCC 262 6 (2016) 15 SCC 322 7 (2006) 3 SCC 634 8 AIR 1983 Bombay 1 8 SK, J S.A.Nos.120 and 126 of 2023 gts of land, whereas D.W.2 had executed Ex.B2 in respect of the extent of land of his share and also there were material contradictions between Exs.B1 and B2 with regard to the consideration and the suit for specific performance of contract is barred by limitation. They submit that both the Courts below have concurrently held that the appellant/defendant has failed to prove his case and therefore, there is no error in the Judgment of the trial Court as well as the appellate Court and there is no substantial question of law to admit the Second Appeals and requested to dismiss the appeals.
13. Learned Senior Counsel for the respondents has relied on the following judgments;
1. Narayanan Rajendran and another vs. Lekshmy Sarojini and others 9
2. C. Doddanarayana Reddy (dead) by L.Rs. vs. C. Jayarama Reddy (dead) by L.Rs 10.
9 (2009) 5 SCC 264 10 (2020) 4 SCC 659 9 SK, J S.A.Nos.120 and 126 of 2023
3. Chandrabhan (deceased) through Lrs vs. Saraswati 11
4. Biswanath Ghosh (dead) by L.Rs vs. Gobinda Ghosh Alias Gobindha Chandra Ghosh 12.
14. After hearing both sides and perusal of the record, this Court is of the considered view that the deceased respondent No.1 herein filed O.S.No.320 of 2002 for perpetual injunction and the appellant herein filed O.S.No.154 of 2004 for specific performance of contract dated 07.03.1988. In both the suits, the suit schedule property is the land admeasuring Ac.1.17 gts in Sy.No.207/AA situated at Kothapally Village, Karimnagar Mandal and Districts.
15. The contention of the appellant/defendant is that as the plaintiff/deceased respondent No.1 is his close relative, he has not insisted for execution of registered sale deed in his favour as he was residing in Hyderabad. He filed suit in O.S.No.154 of 2004 for 11 2022 SCC OnLine SC 1273 12 (2014) 11 SCC 605 10 SK, J S.A.Nos.120 and 126 of 2023 specific performance of contract after 16 years. The appellant has taken another plea that the suit schedule property was given to the plaintiff/deceased respondent No.1 for cultivation even though he was residing at Hyderabad, which clearly shows that the plaintiff/deceased respondent No.1 was in possession of the suit schedule property as on the date of filing of the suit in O.S.No.320 of 2022. In Ex.B2, which was executed in favour of the appellant by D.W.2, there was no recital about Ex.B1. Therefore, the trial Court and the appellate Court have rightly held that Ex.B2 was not executed in pursuance of Ex.B1 agreement of sale.
16. The contention of the appellant/defendant is that Ex.A14-Attendance Register extract cannot be taken into account as alibi as the plaintiff/deceased respondent No.1 was on duty as on the date of execution of Ex.B.1. The appellate Court held that Ex.A14 is the document issued by the Government 11 SK, J S.A.Nos.120 and 126 of 2023 Officer and it is presumed to be true and genuine unless contrary is proved. Though the counsel for the appellant/defendant has cross-examined the plaintiff/deceased respondent No.1, he failed to disprove the contents of Ex.A14 and held that the plaintiff/deceased respondent No.1 was on duty on the date of execution of Ex.B.1.
17. The trial Court and the appellant Court have categorically held that the heavy burden lies on the appellant/defendant to prove Ex.B1-agreement of sale dated 07.03.1988 as the same was disputed by the plaintiff/respondent No.1. The appellant has not chosen to file the suit for specific performance of contract for a long period of 16 years and not even choose to issue any legal notice to the plaintiff/deceased respondent No.1 demanding him to execute the registered document in his favour. Under Ex.B2, D.W.2 has executed a registered document on 18.06.1997 in favour of the appellant/defendant for 12 SK, J S.A.Nos.120 and 126 of 2023 his share and there was no recital with regard to Ex.B1-Agreement of Sale and it clearly shows that the plaintiff/deceased respondent No.1 has not come forward to register the document in the year, 1997 and the limitation starts from the year, 1997 but not from the year, 2002 when the plaintiff filed the suit for injunction against the defendant.
18. In the cross-examination, the appellant/ defendant admitted that he has not given any notice to the plaintiff even after filing of suit in O.S.No.320 of 2002 and also he has not issued prior notice to the plaintiff/deceased respondent No.1 before filing O.S.No.154 of 2004 and also not filed any counter claim in O.S.No.320 of 2002, which clearly shows that the appellant/defendant has waited for more than two years for filing O.S.No.154 of 2004 for specific performance of contract after filing of the suit by the plaintiff/deceased respondent No.1. 13
SK, J S.A.Nos.120 and 126 of 2023
19. The Judgments relied on by the learned Senior Counsel for the appellant/defendant in Hasmat Ali's case (cited 1 supra), Hero Vinoth's case (cited 2 supra), State of Rajasthan's case (cited 3 supra) Janak Dulari Devi's case (cited 4 supra), Kulwant Kaur's, Madina Begum's case (cited 6 supra), Gunwantbhai Mulchand Shah's case (cited 7 supra) and Om Prakash Berlia's case (cited 8 supra) are not apply to the instant case. The facts are different from the Judgments relied on by the learned Senior Counsel for the appellant.
20. The judgments relied on by the learned Senior Counsel for the respondents apply to the instant case.
21. The Hon'ble Supreme Court in Chandrabhan's case (cited 11 supra) framed the following principles relating to Section 100 C.P.C;
"33. The principles relating to Section 100 of the CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application 14 SK, J S.A.Nos.120 and 126 of 2023 of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
22. In Narayanan Rajendran's case (cited 9 supra), the Hon'ble Supreme Court held as under:
"The scope of interference by the High Court in second appeal under section 100 CPC after 1976 Amendment is strictly confined to cases involving substantial questions of law. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law.
15
SK, J S.A.Nos.120 and 126 of 2023 We have once again undertaken this exercise and tried to crystallize the legislative intention by referring to a number of cases decided by this court with the hope that now the High Courts would refrain from interfering with the concurrent findings of fact without formulating substantial question of law".
23. In C. Doddanarayana Reddy's case (cited 10 supra), the Hon'ble Supreme Court held as under:
27. In another judgment reported as Santosh Hazari v.Purushottam Tiwari10, this Court held as under:
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. 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 bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question 10 (2001) 3SCC 179 of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
28. Recently in another judgment reported as State of Rajasthan v. Shiv Dayal11, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under: "When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 16 SK, J S.A.Nos.120 and 126 of 2023
24. In U.N.Krisnhamurthy (Since deceased) through L.Rs. vs. A.M.Krishnamurthy 13, the Hon'ble Supreme Court held that the relief of specific performance of contract can be denied if the suit was not immediately filed after its breach.
25. In view of the above judgments and the record reveal that the concurrent findings of the trial Court as well as the appellate Court are based on proper appreciation of evidence. Both the Courts below have rightly appreciated that the plaintiff/deceased respondent No.1 has established his case, whereas the appellant/defendant has failed to prove his case. Therefore, the finding of both the Courts below are based on proper appreciation of evidence, which cannot be treated as erroneous and should not be interfered with on re-appreciation of the evidence in the Second Appeals. Therefore, no question of law 13 2022 SCC OnLine SC 840 17 SK, J S.A.Nos.120 and 126 of 2023 much less substantial question of law is involved in these Second Appeals.
26. In view of the same, this Court finds that no substantial question of law arises in these appeals and hence, both the appeals are liable to be dismissed at the admission stage itself.
27. Accordingly, the Second Appeals are dismissed. No order as to costs.
28. Miscellaneous petitions, if any pending in these appeals, shall stand dismissed.
____________________ SRI K. SARATH, J Date:31.10.2023.
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