Telangana High Court
Mohd. Iliyasuddin vs Peddamul Anjaiah Died Per Lrs. And 5 ... on 1 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.34 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 28.07.2022 passed by the Principal District and Sessions Judge, Sangareddy, in A.S.No.79 of 2018, confirming the judgment and decree dated 27.04.2018 passed by the Senior Civil Judge, Zaheerabad, in O.S.No.64 of 2011.
2. For convenience, the parties are referred to as they are arrayed before the trial Court.
3. Brief facts leading to filing of the present Second Appeal are that the appellant/plaintiff filed the suit vide O.S.No.64 of 2011 for specific performance of contract. It is contended that the respondent No.1/defendant No.1 was owner and possessor of the suit schedule property i.e., the land admeasuring Ac.0.34 guntas situated in Survey No.13/E/1 situated at Kothur-K Village, Koheer Mandal, Medak District. It is also contended that the defendant No.1 approached the plaintiff and offered to sell the suit schedule property and the plaintiff agreed to purchase the same for a valid consideration of Rs.2,45,000/- per acre. 2
LNA, J S.A.No.34 of 2023 Accordingly, the plaintiff and the defendant No.1 entered into an agreement of sale dated 19.09.2008 and the plaintiff paid an amount of Rs.60,000/- to the defendant No.1 towards earnest money. The defendant No.1 agreed to have surveyed the land and after survey, the plaintiff has to pay the remaining amount. On 19.09.2008, the plaintiff paid further amount of Rs.10,000/- to the defendant No.1 on his request and a receipt was also issued to that effect. Thereafter, the plaintiff approached the defendant No.1 several times for executing the sale deed, but the defendant No.1 evaded the same. Therefore, the plaintiff issued legal notice dated 01.12.2011 to the defendant No.1 to execute a registered sale deed, but there was no response from the defendant No.1. Hence, the suit.
4. The defendant No.1 filed written statement admitting that he is the owner of the suit schedule property and that he entered into an agreement of sale with the plaintiff in respect of the suit schedule property. It is stated that the defendant No.1 was planning to sell the suit schedule land for his daughter's marriage and one Balraj brought the plaintiff to him for purchasing the 3 LNA, J S.A.No.34 of 2023 land. Accordingly, the agreement of sale was entered and advance was also paid by the plaintiff. As per the agreement of sale, the balance sale consideration was to be paid on or before 19.12.2008 i.e., within three months from the date of agreement. Though the defendant No.1 requested the plaintiff to pay the balance sale consideration, the plaintiff failed to pay the same. It is further stated that there was no condition that the defendant No.1 should get the land surveyed.
5. During the pendency of the suit, the defendant No.1 died and his legal representatives were brought on record.
6. On behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A1 to A.7 were marked. On behalf of the defendants, though defendant No.3 was examined as D.W.1, no documents were marked.
7. The trial Court, after considering the entire material available on record, vide judgment and decree dated 27.04.2018 held that the plaintiff ought to have paid the balance of sale consideration to the defendant No.1 by 19.12.2008 and got the sale deed executed; there was no proof that the plaintiff brought 4 LNA, J S.A.No.34 of 2023 it to the notice of the defendant No.1 that he came forward for execution of registered sale deed in his favour after receiving the balance sale consideration and that the plaintiff failed to prove his readiness or willingness to pay the balance sale consideration, and therefore, he is not entitled to the relief of specific performance.
8. The trial Court held that party seeking specific performance of a contract has to come to consideration to the first defendant by 19.12.2008 and get the sale deed executed. There is no proof that the plaintiff brought it to the notice of the first defendant that he has to come forward to execute the registered sale deed in his favour after receiving the balance sale consideration. The legal notice issued by the plaintiff is long after the due date mentioned in Ex.A2. The specific performance being equitable relief, the plaintiff, who has come with unclean hands to the Court, is not entitled to the relief of specific performance and accordingly, dismissed the suit.
9. Aggrieved by the judgment and decree dated 27.04.2018 passed by the trial Court, the plaintiff filed appeal vide A.S.No.79 5 LNA, J S.A.No.34 of 2023 of 2018. The first Appellate Court, being the final Court of facts, re-appreciated the entire evidence and material on record, and dismissed the appeal confirming the judgment and decree passed by the trial Court vide judgment and decree dated 28.07.2022. The first Appellate Court observed that appellant has paid the advance sale consideration and the date is stipulated in the agreement for registration, however the appellant has not made any effort to pay the balance sale consideration to the first respondent on 19.12.2007. No evidence was adduced by the plaintiff to show that as on 19.12.2008, he was ready to pay the balance sale consideration and had offered to pay the same to the first respondent and the first respondent refused to receive the same. Hence, the present Second Appeal.
10. Heard Mr. M.D. Ajmal Ahmed, the learned counsel for the appellant and Mr. L. Venkateswar Rao, the learned counsel for the respondents and perused the record.
11. A perusal of the record discloses that both the Courts below concurrently held that the plaintiff failed to prove his readiness or willingness to pay the balance sale consideration. 6
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12. Learned counsel for appellant vehemently argued that the trial Court dismissed the suit without proper appreciation of the evidence and the first Appellate Court also committed an error in confirming the judgment and decree passed by the trial Court.
13. However, learned counsel for appellant failed to raise any substantial question of law to be decided by this Court in this Second Appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C.
14. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings on facts arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.
15. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that the High Court sitting in Second Appeal cannot examine the 1 (2007) 1 Supreme Court Cases 546 7 LNA, J S.A.No.34 of 2023 evidence once again as a third trial Court and the power under Section 100 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration.
16. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellant are factual in nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal.
17. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
Pending miscellaneous applications, if any, shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY, J Date: 01.02.2024 va 8 LNA, J S.A.No.34 of 2023 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY SECOND APPEAL No.34 of 2023 Date: 01.02.2024 va