Allahabad High Court
Rafeeque Ahemad Ansari vs Dr. Atmaram Mandhoria And 3 Others on 16 October, 2015
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 19
Case :- SECOND APPEAL No. - 856 of 2015
Appellant :- Rafiq Ahemad Ansari
Respondent :- Dr. Atmaram Mandhoria And 3 Others
Counsel for Appellant :- Harshit Pathak, Anurag Pathak
Counsel for Respondent :- Alok Kr. Srivastava
Hon'ble Pramod Kumar Srivastava,J.
1. The plaintiff (present respondent no.-1) had filed original suit no.-102 of 1998, Dr. Atma Ram Madhoriya Vs. Smt. Sahida @ Saeeda Begum and others, for specific performance of contract of sale of disputed property executed between defendant no.-1 and plaintiff. In the suit, this relief was also sought that decree of original suit no. 2 of 1998, Rafiq Ahemad Ansari Vs. Saeeda Begum, has no binding effect on plaintiff.
2. Facts of the original suit were that defendnat no.-1 had entered into a registered agreement to sell the disputed property to plaintiff for consideration of Rs. one lacs and recedived Rs. 35,000/- as advance money from him. Plaintiff had been ready and willing to perform his part of contract and even gave the legal notice through counsel to defendant no.-1 for executing sale deed but defendant no.-1 had not executed the sale deed. In meantime, an original suit no. 2/1998, Rafiq Ahemad Vs. Saiyada Begum, was filed on 2.1.1998 for declaring the ownership of disputed property on the ground that the predecessor in interest of Saeeda Begum had orally gifted the disputed property to plaintiff of that suit namely, Rafiq Ahemad. Defendant Saeeda Begum appeared in said case on 12.1.1998, filed the written statement same day, same day issued were framed and same plaintiffs witnesses PW-1 Rafiq Ahemad and PW-2 Nafees Ahemad were examined, and also defendant witness DW-1 Saeeda Begum was also examined. In her statement, DW-1 Saeeda Begum had admitted the alleged oral gift of disputed property by her father in favour of Rafiq Ahemad. Then trial court had passed the judgment in said suit on same day, i.e. on 12.01.1998, and decreed the suit and declared the Rafiq Ahemad as owner in possession of disputed property. After knowledge of these facts, plaintiffs had filed original suit no. 38/2014 for specific performance of his contract in his favour as well as for declaration as above.
3. The defendant no.-1 Sayeeda Begum had filed written statement in original suit and accepted the execution of deed of registered agreement to sell dated 17.11.1997 but stated that she had executed said deed for mortgaging her property and not for agreeing to sell the same. In original suit the defendant no. 2 Rafiq Ahemad (present appellant and plaintiff of original suit no. 2/1998) had filed the w.s. and pleaded that the original owner of disputed property had orally gifted it in his favour, therefore, suit of plaintiff should be dismissed. Other defendants had also filed written statements.
4. Defendant no.-3 Suraiya was also party to registered agreement to sell and had pleaded in her written-statement that decree of original suit no. 2/1998 was obtained by fraud, and she is ready to execute sale-deed for specific performance of contract dated 17.11.1997. Defendant no.-4 was not party to agreement to sell and he had supported the pleading of defendant no.-1 and stated that defendant no.-1 had not entered into agreement to sell but had executed the said deed of agreement to sell because she had taken loan from plaintiff.
5. Trial court had framed issued, accepted evidences of the parties and thereafter passed judgment dated 12.8.2015, by which original suit was decreed for both the reliefs of specific performance of contract as well as for declaring that decree passed in original suit no. 2/1998, Rafiq Ahamed Vs. Sayeeda Begum, and its judgment dated 12.1.1998 are void and not binding on plaintiff, and no right can be acquired by this decree.
6. Against the judgment dated 25.3.2014 of trial court, civil appeal no.38 of 2014, Rafiq Ahamed Vs. Dr. Atmaram Madhoriya and others was preferred, which was dismissed by the judgment dated 12.8.2015 of Additional District Judge, Court No. 8, Saharanpur. In this judgment, first appellate court had discussed the points of determination between the parties and the evidences adduced by them and thereafter confirmed the finding of facts and law given by the trial court, and dismissed the appeal.
7. Learned counsel for the appellant contended that findings and conclusions of the two courts below are manifestly erroneous, therefore it should be set aside. He also relied upon Devalsab (dead) by LRS. Vs. Ibrahimsad F. Karajagi & Anr., A.I.R. 2005 SC 1940 and contended that in a suit for specific performance of contract on the basis of agreement to sell descretion should not be exercised in favour of plaintiff if suit is based on incorrect facts or on the basis of cheating or fraud. He also contended that the trial court could not declare the decree of said suit no. 2/1998 as void, therefore, this second appeal should be admitted for being allowed.
8. The ruling cited by learned counsel for the appellant has no application in this matter for supporting appellant's case. On the contrary, this ruling is in fact against the appellant himself. It has been concurrent finding of fact that appellant Rafiq Ahamed as well as Sayeeda Begun (defendant no.-1 of original suit) had deliberately filed original suit no. 2/1998 for denying the legal rights of plaintiff to exercise his right to enforce registered agreement to sell. The finding of fact reached upon by the two courts below are not only concurrent but apparently correct. These findings have been based on proper reasoning, upon proper appreciation of evidences on record and after application of judicial mind. If a decree is passed with intention of cheating and fraud, then person aggrieved by such decree may get it cancelled through legal process as has been done in this matter by plaintiff respondent.
9. The judgment of two courts below are based on finding of facts. No perversity or infirmity is found in the concurrent finding of facts recorded by the two courts below. No question of law, much less a substantial question of law is involved in this case. None of the contentions of learned counsel for the appellant can be sustained.
10. In view of the above, this Court finds that no substantial question of law arises in this appeal. Therefore, this second appeal is dismissed.
Order Date :- 16.10.2015
SR
