Delhi High Court

Ram Darash & Ors. vs Mahesh Kumar Mandal on 14 February, 2013

Author: V.K.Shali

*                   HIGH COURT OF DELHI AT NEW DELHI

+              R.S.A. NO.80 OF 2004 & C.M. NO.4255 OF 2004

                                        Decided on : 14th February, 2013

RAM DARASH & ORS.                            ...... Appellants
            Through:              Mr. Raj Kumar Sherawat, Advocate.

                        Versus

MAHESH KUMAR MANDAL                 ...... Respondent
           Through: Mr. Deepak Dewan, Advocate.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed under Section 100 CPC

against the order dated 22.1.2004 passed by the learned Additional

District Judge dismissing the appeal of the appellant.

2. This appeal is pending for the last more than eight years at the

admission stage itself. Till date, no efforts have been made by the

learned counsel for the appellants to show that any substantial question of

law is arising from the appeal.

3. I have heard the leaned counsel for the appellants and have gone

though the record. The contention of the learned counsel for the

appellant is that number of substantial questions of law are arising from

the present appeal and, therefore, the appeal deserves to be heard with

regard to these questions. Before dealing with the so called substantial

questions of law allegedly arising from the present appeal, it would be

relevant to give brief background of the case.

4. The respondent herein, Mahesh Kumar Mandal (plaintiff in the

original suit), filed a suit for specific performance, possession and mesne

profits against Ram Darash Mahto (appellant No.1 herein) and his wife

Bindrawati (since deceased and represented by her LRs being appellant

Nos.2 to 6 herein). The averments made in the suit were that the

appellants-defendants, who were husband and wife, represented

themselves to be the owners of the property No.368, Lal Kuan near petrol

pump, Badarpur, New Delhi consisting of three rooms and one bathroom

besides open space/passage on the ground floor and one room with open

space on the first floor along with land underneath measuring about 70

square yards. It was alleged that the appellants-defendants had agreed to

sell the said property to the respondent-plaintiff on 13.3.1990 for a total

sum of `51,000/-. Two documents were purported to have been

executed; one on 13.3.1990 and the other on 31.3.1990. It was alleged

that the appellants-defendants had received the entire amount of

`51,000/- vide two transactions; one was for an amount of `23,600/-

which was paid by the plaintiff/respondent through appellants/defendants

to one Kalka Prasad on 13.3.1990, who was the mortgagee in respect of

the three rooms of the suit property while as the balance amount of

`27,400/- was paid to the appellants-defendants in cash on 31.3.1990.

When the amount of `23,600/- was given to Kalka Prasad, he is stated to

have handed over the possession of two rooms on the ground floor and

one room on the first floor to the plaintiff-respondent, who claimed that

he had put his own locks on the said premises. Later on, it was alleged

that these locks were broken and the appellants-defendants had taken the

possession of these three rooms also and instead of perfecting the title of

the respondent-plaintiff, they refused to honour the transaction. This

resulted in filing of a suit for specific performance of the agreement as

well as the oral agreement between the parties in respect of the suit

property and possession of the property and thirdly, the damages/mesne

profits, which were claimed @ `500/- per month.

5. The appellants-defendants contested the suit by denying that they

had ever received any payment either directly or through Kalka Prasad.

They also denied the execution of the two documents dated 13.3.1990

and 31.3.1990 either by themselves or by Kalka Prasad. They also denied

any oral agreement purported to have been arrived at with the respondent-

plaintiff for the sale of the property.

6. On the pleadings of the parties, the following issues were framed :-

"i. Whether any oral or written agreement was entered into between the parties for sale of the suit premises? OPP

ii. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP

iii. Whether the defendants jointly received any consideration for agreement referred to (i) above from the plaintiff? OPP

iv. Whether the agreement is forged and fabricated document? OPD

v. Whether the plaintiff at any point of time came in possession of portion of suit premises? OPP

vi. Whether the plaintiff is entitled to relief prayed for in para 10(i) of his plaint? OPP

vii. Whether the plaintiff is entitled to damages/mesne profits as claimed in para 10(ii) of the plaint? OPP

viii. Whether the plaintiff in alternate is entitled to recover `51,000/- for defendants jointly? OPP

ix. Whether the plaintiff is entitled for interest, if so, on what rate and for what period on `51,000/-? OPP

x. Relief."

7. The respondent-plaintiff in support of his case, examined himself

as PW-1, Suresh Kumar Sani as PW-2, Kapil Dev Prasad, witness to the

agreement as PW-3 and the appellant No.1 (Ram Darash Mahto)

examined himself as DW-1, as a sole witness.

8. All the issues were decided against the appellants-defendants by

the trial court. It was held by the trial court that the respondent-plaintiff

has been able to prove that there was not only an oral agreement but also

an agreement in writing for the sale of the property in question between

him and the appellants-defendants for a total consideration of `51,000/-

which was received by them and, therefore, the suit for specific

performance, possession and damages was decreed. A decree of

`57,900/- was also passed in favour of the plaintiff-respondent being the

arrears of damages/mesne profits from 21.5.1990 till date of decision,

which is 18.1.2000, and thereafter, the respondent-plaintiff was further

held entitled to damages/mesne profits @ `500/- per month till the time

the possession is handed over to him.

9. Feeling aggrieved by the aforesaid judgment and decree, the

appellants herein preferred an appeal before the learned Additional

District Judge. After hearing the arguments, the learned Additional

District Judge upheld the judgment and the decree passed by the trial

court and dismissed the appeal of the appellants vide order dated

22.1.2004.

10. Still feeling dissatisfied, the appellants filed the present regular

second appeal in the year 2004 wherein certain substantial questions of

law are stated to have been arising from the appeal. Mr. Sherawat, the

learned counsel for the appellants has submitted that following questions

of law are arising from the present appeal and, therefore, vehemently

contended that the substantial questions of law be formulated and the

appeal be heard on merits. The questions which have been formulated

and handed over in the court are as under:-

"1. Whether the agreement/writing dated 31.3.1990 (Ex. P-2) fulfils the ingredients of a valid contract under Indian Contract Act between the plaintiff and the defendants and whether such agreement is enforceable under law?

2. Whether agreement/writing dated 31.1.1990 is an agreement or receipt or unregistered and insufficiently purported sale deed without any legal effect or consequences?

3. Whether agreement/writing dated 31.1.1990 can be specifically enforced under provisions of specific relief Act when there is no stipulation or scope of enforcement of any agreement in the said document?

4. Whether there was any oral agreement between the parties to the suit in absence of any reference of any oral agreement in agreement/writing dated 31.1.1990?

5. Whether finding of the trial court in believing the theory of oral agreement without there being any cogent evidence to prove the same is correct?

6. Whether the plaintiff/respondent has discharged the heavy burden of proving oral agreement as required under law and as observed by the Division Bench of this Hon‟ble Court in the case of Sanjay Puri vs. Radhey Lal & Ors., RFA (OS) 84/2006?"

11. In addition to this, the learned counsel has also sought to place

reliance on Union of India vs. Ibrahim Uddin & Anr.; JT 2012 (6) SC 466

and a judgment passed by Division Bench of this Court in R.F.A. (OS)

No.84/2006 titled Sanjay Puri vs. Radhey Lal & Ors. decided on

24.12.2010.

12. I have gone through the proposed questions of law which have

been formulated by the learned counsel for the appellants as well as the

two judgments. So far as the law laid in the two judgments is

concerned, that is not in dispute. In Ibrahim Uddin‟s case (supra), the

Supreme Court has categorically observed as under:

"to be „substantial‟, a question of law must be debatable, not previously settled by law of the land or a binding precedent and must have a material on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned."

13. Keeping this parameter in view, the substantial question of law

means a question of law which has not been considered or decided

authoritatively by any court earlier, which has either binding or

persuasive value, only then the second appeal would be admissible. If the

proposed questions of law formulated by the appellants are considered,

these are all essentially questions of fact and not questions of law much

less to say substantial questions of law. Therefore, I feel that the

questions as to whether agreement dated 31.3.1990 fulfils the ingredients

of a valid contract; whether it was sufficiently stamped or not; whether

the said agreement dated 31.1.1990 was enforceable by law or not;

formulated by the learned counsel for the appellants, are essentially

questions of fact which have already been considered and answered