Nanak vs Mohammad Inam
2015 Latest Caselaw 5597 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 
Case :- 	SECOND APPEAL No. - 1069 of 2015
 
Appellant :- 	Nanak
 
Respondent :- 	Mohammad Inam
 
Counsel for Appellant :- Rajesh Gupta
 

 
Hon'ble Pramod Kumar Srivastava, J.

1. Heard learned counsel for the appellant on the point of admission of Second Appeal and perused the records.

2. It is admitted fact that registered agreement to sell dated 31.05.2006 was executed between Nanak and Mohd. Inam, by which it was agreed that Nanak (present appellant) will sell his property in question to Mohd. Inam (present respondent) for consideration, and at the time of execution of said registered deed, the plaintiff/appellant Nanak had received advance consideration and promised to execute the sale-deed of disputed property after receiving remaining consideration from defendant/respondent Mohd. Inam. It is also admitted fact that after that the proposed sale-deed, as mentioned in registered deed of agreement to sell, was never executed and both the parties to this registered agreement had filed suits in that regard against each other.

3. The original suit no. 821/2006 ( Nanak v. Mohd. Inam) was filed by Nank against Mohd. Inam with averment that he is an illiterate man and had faith on defendant Mohd. Inam. Mohd Inam had asked him to come to Sub-Registrar office for being witness in a matter, but when he (Nanak) reached tehsil, he was asked to make signature and thumb impression on several documents without explaining them. Some time after, he heard rumors that Mohd. Inam had got any registered agreement deed executed for sale for his property, and is preparing to file suit for the same, then he got matter enquired and came in knowledge of all facts. Since, he had not received any consideration and not executed any agreement to sell, therefore, the registered agreement to sell dated 31.05.2006 as above may be cancelled.

4. Another original suit no. 983/2006 (Mohd. Inam v. Nanak) was filed with averment that defendant Nanak had agreed to sell his property as above and executed registered agreement to sell after after receiving consideration but later on he denied the execution of sale-deed . Since plaintiff Mohd. Inam is ready and willing to perform his part of said contract and defendant is not ready, therefore, plaintiff had filed suit for specific performance of contract.

5. Since both the original suits no. 821/2006 and no. 983/2006 were related to same registered agreement to sell dated 31.05.2006 as above, and were between the same parties, therefore both the suits were consolidated by order of the trial court, which made the original suit no. 821/2006 (Nanak v. Mohd. Inam) as leading case.

6. The trial court had framed issues separately for both the suits, but after the consolidation common oral and documentary evidences were received. After affording opportunity of hearing to the parties, Additional Civil Judge (S.D.), Court No.-2, Meerut had dismissed the original suit no. 821/2006, but had decreed partially original suit no. 983/2006 (Mohd. Inam v. Nanak), by which main relief of specific performance of contract was declined, but the said suit was decreed for return of advance consideration of Rs. 1,00,000/- with interest to be payable by defendant Nanak to plaintiff Mohd. Inam.

7. Aggrieved by the another judgment dated 27.08.2011 of trial court in abovementioned consolidated cases, two appeals were preferred. Civil Appeal no. 229/2011 (Nanak v. Mohd. Inam) was preferred by plaintiff of O.S. no. 821/2006 for challenging the dismissal of his suits as well as for decreeing the O.S. no. 983/2006 for relief of refund of said advance consideration. Another Civil Appeal no. 230/2011 (Mohd. Inam Vs. Nanak) was preferred by the plaintiff of abovementioned O.S. no. 983/2006 by which it was requested that judgment of O.S. no. 983/2006 be interfered by appellate court for substituting the relief of refund of money, and replacing it by the main relief of specific performance of registered agreement to sell dated 31.05.2006. Both the Civil Appeals no. 229/2011 and Civil Appeal no. 230/2011 were preferred against the same judgment; therefore they were consolidated and jointly heard. After hearing the Additional District Judge, Court No.-6, Meerut had passed the joint judgment dated 15.10.2015 in both the appeals by which C.A. no. 229/2011 was dismissed; but C.A. no. 230/2011 (Mohd. Inam Vs. Nanak) was allowed by which the portion of judgment of trial court for granting alternative relief of refund of advance consideration was set aside and was substituted by decreeing the original suit for main relief of specific performance of contract. By this judgment, first appellate court had directed the Nank to execute the registered sale-deed of disputed property in accordance terms of registered agreement to sell dated 31.05.2006, after receiving remaining advance consideration of Rs. 70,000/- and handover the possession of disputed property to Mohd Inam.

8. Aggrieved by the judgment relating to O.S. no. 983/2006 and C.A. no. 230/2011, the plaintiff-respondent of said proceedings, namely, Nanak, had preferred present Second Appeal.

9. It is pertinent to mention that present appellant had not filed any Second Appeal against the two judgments passed against him in O.S. no. 821/2006 (Nanak v. Mohd Inam) and C.A. no. 229/2011 (Nanak v. Mohd Inam), which were carried out on his behalf for cancellation of registered deed of agreement to sell.

10. Learned counsel for the appellant raised several points at the time of their arguments. The first main point was that trial court had not given any finding on readiness and willingness to perform his part of contract in judgment of original suit no. 983/2006, therefore, the judgment without such finding is erroneous and the judgment of first appellate court based on such finding is erroneous and is liable to be quashed.

11. A perusal of the records reveal that plaintiff Mohd. Inam had specifically mentioned in paragraph-8 in his plaint that he has been ready and willing to perform his part of contract but since defendant is not ready to transfer the disputed land, therefore, he had no option but to file suit for specific performance of contract. It is very pertinent to mention that these facts of paragraph-8 of the plaint were admitted by defendant (present appellant) in paragraph-8 of his written-statement. The only point denied by him was that defendant is not entitled to sell his property. Since the case of plaint relating to readiness and willingness of plaintiff to perform his part of contract has been admitted in written-statement, therefore there was no necessity to give finding on admitted facts. This contention of learned counsel for the appellant is also baseless that trial court should have been framed issues on this admitted points and should have given finding on their evidences of proof, because for decreeing suit evidences are necessary. Since the pleading to that effect in plaint was admitted by defendant-appellant, therefore now the appellant is estopped to raise such issue.

12. It is also pertinent to mention that such plea of the alleged non-readiness or non-willingness on part of plaintiff-respondent was not taken by the defendant-appellant either in their written statement or in memorandum of the first appeal. In fact no such plea was raised by the appellant in first appeal and this plea has suddenly been taken directly in Second Appeal before this court. Rule-2 of Order-XLI CPC provides for the grounds which may be taken in appeal. It lays down that the appellant shall, not except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal. Therefore for this reason also the new plea of the alleged absence of readiness and willingness should not be permitted to be taken directly in Second Appeal. In absence of such plea before first appellate court, appellant had no right to argue on this point even before first appellate court; and permitting him on such point in Second Appeal directly may cause prejudice to rights of respondents. For this reasons, the contention of learned counsel for the appellant is rejected.

13. Learned counsel for the appellant also contended that judgment of trial court is well reasoned on the point of grant of relief, but the first appellate court had reversed the same without setting aside the finding of trial court. He contended that without reversing the finding of trial court, the appellant court cannot substitute his own findings, therefore the appeal should be allowed for this reason. He also contended that in first appeal, defendant had raised ground for challenging the judgment of trial court as cross-objection which were not considered but they were not considered. A perusal of judgment of first appellate court makes it very clear that memo of cross-objection filed by present appellant Nanak in C.A. no. 230/2011 were almost identical which were his plaint case of original suit no. 821/2006 and the case on written statement filed by him in O.S. no. 983/2006. As held earlier, it is also admitted fact in both the O.S. no. 821/2006 and O.S. no. 983/2006 issues were framed earlier, then both the suits were consolidated and parties had led their evidences; and thereafter judgment of the trial court was passed. It is also admitted, as well as proved, that against the judgment dated 31.05.2006 of trial court for consolidated original suits no. 821/2006 and 983/2006, both the parties had preferred Civil Appeals no. 229/2011 and no. 230/2011. These appeals were also consolidated and decided by one and joint judgment dated 15.10.2015 by the first appellate court. In this impugned judgment, the first appellate court had considered the pleadings of both the parties in both the suits, their evidences, and thereafter framed points of determination for joint disposal of both the appeals. A perusal of the impugned judgment dated 15.10.2015 of first appellate court clearly shows that all the points relating to finding of trial court, pleading of the parties in original suits and in memorandum of appeals including cross-objection and facts relating to them were meticulously and properly considered. The first appellate court had specifically framed the points of determination on the point as to whether the relief of refund of amounts of Rs. one lac as advance consideration is proper or not, and whether the Mohd. Inam is entitle to get the contract dated 31.05.2006 specifically enforced from Nanak (present appellant). These specific points of determination included reconsideration by appellate court on point of finding of granting of alternative relief of refund of advance consideration in original suit no. 983 of 2006. After proper consideration of arguments and evidences, the lower court had given specific finding on these points. Therefore, the arguments raised as above on this points are factually incorrect and are unacceptable.

14. Learned counsel for the appellant contended that respondent/plaintiff would not suffer any hardship after amount of advance consideration is returned to him, but the appellant/defendant will face the inconvenience and hardship, therefore the finding of first appellate court regarding exercise of its discretion is erroneous and on this point, the appeal should be admitted for being allowed.

15. In this regard, a perusal of the judgments of the two courts below makes it clear that trial court had considered this fact that present appellant is in fact not in ownership of much land and this land is his source of income. But in this regard some very pertinent points were not considered by the trial court. When it was admitted case that at the time off execution of registered agreement to sell dated 31.05.2006, the appellant Nanak had 30-32 bighas of land, which was more than sufficient then why those lands were sold by him. This is admitted fact that at the time of execution of registered contract for sale in question a lot of lands in ownership of appellant but even then he executed the agreement for sale of disputed property, but later on he sold other lands and filed the suit for cancellation of registered agreement to sell executed in favour of plaintiff/respondent without any reason, and of course without any offer of return of the advance consideration of Rs. 1,00,000/- received by him. Reasons for sale of other lands were also not explained by him. These facts and these acts of mala-fide on the part of appellant were not considered by the trial court. But the first appellate court had not only considered these points and evidences relating to it meticulously, but had discussed the evidences including the admissions of PW-1 Nanak (present appellant) during his cross-examination in which he had also admitted that even the respondent was asking him not to execute agreement to sell his property, but he had willingly executed it. The first appellate court had specifically mentioned as to why findings of the trial court regarding alleged inconveniences are not acceptable and why relief of specific performance of contract is appropriate, and why the appellant would not face more inconvenience as compared to respondent. Whith specific finding of fact the first appellate court had allowed the C.A. no. 983/2006 and decreed the suit for specific performance of contract. There appears no error, illegality or impropriety in judgment of first appellate court when it had passed the impugned judgment by specific finding of fact which are apparently correct and acceptable. This Court in second appeal is not expected to re-appreciate the facts and evidences for substituting such finding of fact of the lower court.

16. The only dispute between the parties was as to whether the defendant/appellant Nanak had willingly executed the registered sale-deed for his property in question and received consideration of Rs. one lac and agreed to sell disputed property after receiving remaining amount of consideration are not, and whether the plaintiff has been ready and willing to perform his contract or not. These are questions of fact that can be decided on the basis of evidences only, as has been done in present case by the courts below. In fact no question of law is involved in this Second Appeal. The findings of the trial court and the first appellate court are neither infirm nor perverse, and has been given after appreciation of all the evidences on record. There is no perversity in it. No question of law, a much less substantial question of law, is involved in this matter before this Court for exercising jurisdiction under Section 100 CPC. None of the contentions of learned counsel for the appellant can be sustained.

17. For the reasons discussed above, and in absence of substantial question of law, this second appeal is dismissed.

Order Date :- 21.12.2015

Sanjeev