Allahabad High Court
Santosh Kumar Yadav vs Lalji Yadav on 24 April, 2023
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- SECOND APPEAL No. - 266 of 2023
Appellant :- Santosh Kumar Yadav
Respondent :- Lalji Yadav
Counsel for Appellant :- Capt Seema Singh,Vinay Kumar Singh
Hon'ble Dinesh Pathak,J.
1. The defendant-appellant has preferred this second appeal assailing the judgment and decree passed by the first appellate court, dismissing the civil appeal filed on behalf of the defendant, affirming the judgment and decree passed by the trial court in Original Suit No. 848 of 2019, decreeing the suit under Order XII Rule 6 C.P.C. The plaintiff-respondent has filed suit for mandatory injunction against the defendant-appellant to execute registered sale deed in favour of the plaintiff in pursuance of the agreements dated 22.12.2017 & 08.01.2018, declaration letters dated 11.01.2018 & 23.03.2018 and compromise dated 01.08.2019. In alternative, relief has been sought for to return the entire money amounting Rs. 15,81,000/-with interest. As per plaint case property of the defendant was mortgaged with the bank. Under the agreement inked between the parties, the plaintiff has deposited the entire loan amount which was due against the defendant. In written statement the defendant has admitted mortgage of the property and payment of loan amount by the plaintiff. In this backdrop of the case, the trial court has decreed the suit, on the basis of the admission made by the defendant, under Order XII Rule 6 C.P.C. and issued a direction to the defendant to reimburse the amount i.e. 13,81,000/- to the plaintiff with interest at the rate of 6% per annum. The first appellate court, on appeal being filed on behalf of the defendant, has dismissed the appeal and affirmed the judgment and decree passed by the trial court.
2. Learned counsel for the appellant submits that the suit has been decided without framing issues as enunciated under Order 14 C.P.C. It is further submitted that the appeal has been decided in cursory manner without properly formulating the point for determination. It is next submitted that entire original documents to the defendant are with the plaintiff, therefore, plaintiff may be directed to return all the original documents of the defendant so that he can alienate the property in question and reimburse the decreetal amount to the plaintiff.
3. Having considered the submissions advanced by the counsel for the appellant and perusal of record, I found no substantial question of law to entertain the instant second appeal under Section 100 C.P.C. In the memo of appeal learned counsel for the appellant has formulated four substantial questions of law, which are mentioned as below:-
"1. Whether the plaintiff suit is barred by the provisions of sec 34 of the Specific Relief Act when he is not owner and in possession of the property in suit.
2. Whether the learned trial Court erred in deciding the suit without framing issues and barred by section 53A of Transfer of property Act as consideration is not mentioned.
3. Whether the lower appellate court erred in not appreciating the evidence educed by Respondent appellant.
4. Whether the judgment and decree passed by trial Court as well as appellate court is vitiated in law as being based on conjectures and surmises."
4. Substantial questions of law, as mentioned above, are misconceived, which cannot be treated to be substantial questions of law in the given circumstances of the present case. There was no occasion for the trial court to frame issues and decide the suit issue-wise, inasmuch as defendant himself has admitted the payment of loan amount made by the plaintiff and the suit has been decided on the application moved by the plaintiff under Order XII Rule 6 C.P.C. The first appellate court has elaborately discussed the scope of Order XII rule 6 C.P.C. and came to the conclusion that in the given circumstances of the present case there is no illegality or perversity in the order passed by the trial court to be interfered by the first appellate court.
5. In this conspectus, as above, learned trial court has rightly decided the suit under Order XII Rule 6 C.P.C in light of the admission made by the defendant with respect to the payment of loan amount to the tune of Rs. 13,81,000/- and first appellate court has not committed any manifest error in affirming the judgment and decree passed by trial court. I do not find any perversity, illegality or ambiguity in the orders passed by the courts below.
Resultantly, instant appeal, being devoid of merit and misconceived, is hereby dismissed.
Order Date :- 24.4.2023
Pkb/
