Telangana High Court
Mohammed Khaled Ali vs A. Hanumanth Reddy on 28 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.527 of 2023
JUDGMENT:
Challenging the validity and legality of the judgment and decree, dated 03.07.2023, passed in A.S.No.53 of 2022 (Old AS.No.16 of 2021) on the file of the Court of Principal District Judge, Sangareddy, confirming the judgment and decree dated 12.12.2019 passed by the Senior Civil Judge, Medak in O.S.No.24 of 2006, the present Second Appeal is filed.
2. The appellant is defendant No.1, respondent No.1 is the plaintiff and respondent Nos.2 to 4 are defendant Nos.3 to 5 in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
3. The facts of the case in brief, which led to filing of the present Second Appeal, are that the plaintiff agreed to purchase the suit schedule property for a sale consideration of Rs.4,10,000/- from defendant No.1, who is the absolute owner and possessor thereof, and accordingly, on 27.9.2005, an agreement of sale was executed, as per which, the plaintiff paid a sum of Rs.20,000/- to defendant No.1 and the same was acknowledged under receipt.
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LNA, J S.A.No.527 of 2023 3.1. It was further averred that inspite of requesting defendant No.1 several times to execute the sale deed and even after receipt of legal notice which was got issued by the plaintiff in that regard, he failed to execute the same and gave a reply notice with all false and untenable allegations. Hence, the suit for specific performance of agreement of sale.
4. Defendant No.1 filed written statement inter alia denying the allegations made in the plaint as regards his offer to sell the suit schedule property to the plaintiff, the discussions between him and the plaintiff, about fixation of sale consideration and also receiving a part thereof from the plaintiff. He further averred that the Agreement of sale produced by the plaintiff is a forged and fabricated document. 4.1. Defendant No.1 also averred that the suit schedule property was inherited by himself, his brothers and mother after death of his father. Since he was the eldest son, the Revenue authorities have mutated the suit schedule property in his name and therefore, he is not the absolute owner and possessor of the suit schedule property. Accordingly, he prayed the Court to dismiss the suit.
5. On the above pleadings, the trial Court framed the following issues for trial:-
"1. Whether the defendant executed the suit agreement of sale on 27.09.2005? If so ?3
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2. Whether the plaintiff is entitled for specific performance of Contract on the suit agreement of sale as prayed for?
3. To what relief?"
6. On behalf of plaintiff, PWs.1 to 5 were examined and Exs.A1 to A6 were marked. On behalf of the defendants, DWs.1 to 3 were examined and Exs.B1 to B-30 were marked. Ex.X-1-Expert Opinion was also marked.
7. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, decreed the suit, vide judgment dated 12.12.2019, by observing as hereunder:-
"The evidence of PW1 coupled with the evidence of PW2 to PW4 who are the scribe and attestors of Ex.A1 and the evidence of PW5 who is Assistant Director (FSL) and also the documentary evidence produced by him, it is very clear that defendant No.1 has executed the suit agreement of sale on 27-09-2005 in favour of plaintiff (PW1) after receiving a sum of Rs. 20,000/- as part payment of sale consideration. Thus, the plaintiff (PW1) approached this Court with clean hands and hence he is entitled for Specific Performance."
8. The first Appellate Court, being the final fact-finding Court, re- appreciated the entire evidence and the material available on record and vide its judgment dated 03.07.2023 observed that since the plaintiff established that Ex.A-1-Agreement of sale is genuine and the property 4 LNA, J S.A.No.527 of 2023 belongs exclusively to the defendant and the said property was subject matter of Ex.A-1 and the plaintiff was willing to perform his part of the agreement, the decree of specific performance of agreement of sale granted by the trial Court was confirmed. It is further observed that the respondent/plaintiff disputed the balance sale consideration on passing of decree.
9. Heard Sri S.Bhooma Goud, learned counsel for the appellant. Perused the record.
10. A perusal of the record discloses that both the Courts below concurrently held that the oral and documentary evidence adduced by both the parties goes to show that plaintiff proved the execution of ExA- 1-Agreement of sale in his favour by the defendant and he was also ready and willing to perform his part of contract and thus, decreed the suit directing defendant No.1 to execute registered sale deed in favour of the plaintiff in respect of the suit schedule property after receiving the balance sale consideration from the plaintiff.
11. Learned counsel for appellant argued that the trial Court decreed 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.
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12. 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.
13. 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.
14. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that the High Court sitting in Second Appeal cannot examine the 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.
15. 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 1 (2007) 1 Supreme Court Cases 546 6 LNA, J S.A.No.527 of 2023 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.
16. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
17. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date: 28.02.2024 dr