Jharkhand High Court

Rajendra Singh vs Kanhaiya Sharma on 1 October, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
               S.A. No.422 of 2016
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Rajendra Singh, son of Chandrama Singh, resident of Village-Vistipara, Hirapur, P.O. & P.S.-Dhanbad, Dist.-Dhanbad .... .... .... Appellant Versus

1. Kanhaiya Sharma

2. Sunil Kumar Sharma

3. Anil Kumar Sharma

4. Soni Kumar All sons/daughter of late Lakshmi Devi, resident of Hindu Mission Road, Dhanbad, P.O. & P.S.-Dhanbad, Dist.-Dhanbad

5. Smt. Murni Devi, w/o Manoj Sharma, resident of Beli Road, P.S.- Shastri Nagar, P.O.-Patna, Dist.-Patna (Bihar) .... .... .... Respondents

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For the Appellant : Mr. R.S. Mazumdar, Sr. Advocate : Mrs. Jasvindar Mazumdar, Advocate : Mr. Rohan Mazumdar, Advocate

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PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the learned counsel for the appellant.

2. This second appeal has been preferred under Section 100 of

Code of Civil Procedure against the judgment and decree of

affirmance dated 28.05.2016 passed by the learned District Judge-

VI, Dhanbad in Title Appeal No.27 of 2015 whereby and where

under, the learned first appellate court by a judgment of

concurrence has dismissed the appeal on contest.

3. The brief fact of the case is that the plaintiff filed Title Suit

No. 106 of 2004 in the court of Civil Judge (Sr. Div.)-VII, Dhanbad

with a prayer for specific performance of contract between the

plaintiff and the defendants.

4. The case of the plaintiff in brief is that the original defendant

was the owner of the suit premises. She inducted the plaintiff as a

tenant on monthly rent of Rs.500/- for a period of seven years. The

agreement of lease was executed by the original defendant on

15.12.1997 and since then the plaintiff occupied the premises as a

tenant on monthly rent of Rs.500/-. The plaintiff paid a sum of

Rs.28,000/- on 15.12.1997 to the defendant as a security money for

the said premises which was to be refunded to the plaintiff without

any interest after the expiry of the tenancy period. During the

period of tenancy the original defendant wanted to sell and

transfer the premises at a total consideration of Rs.1,80,000/- with

an understanding that the security money of Rs.28,000/- would be

adjusted in the consideration money fixed for the shop premises.

The plaintiff paid an advance of Rs.11,000/- on 21.12.1998 in

continuation of the agreement and the plaintiff went on paying

money as part consideration money to the original defendant on

different dates. The defendant acknowledged the receipt of the

payment. The plaintiff claimed to have paid altogether

Rs.1,41,000/- against the consideration money of Rs.1,80,000/- in

respect of the premises. The plaintiff and the original defendant

mutually agreed that the balance consideration amount of

Rs.39,000/- will be paid by the plaintiff to the original defendant at

the time of registration and execution of the sale deed. The plaintiff

requested the defendant on several occasions to receive the balance

consideration amount of Rs.39,000/- and to execute and register

the sale deed but as the defendant avoided the same, hence the suit

was filed. Before filing the suit the defendant instituted C.P. Case

No. 1154 of 2004 in the court of Chief Judicial Magistrate, Dhanbad

implicating the plaintiff and his father. The plaintiff always being

ready and willing to pay the balance consideration amount of

Rs.39,000/-.

5. In her written statement, the defendant- Laxmi Devi

challenged the maintainability of the suit on various technical

grounds. After her death her son and daughter were substituted

and they adopted the written statement filed by her. The

defendants pleaded that the documents which is claimed to be the

agreement for sale was in fact a forged document, which was

prepared for the purpose of the suit. The defendants denied receipt

of any consideration or any advance amount from the plaintiff. The

defendants requested the plaintiff to collect Rs.28,000/- the

security amount, from the defendants, on any day but the plaintiff

did not turn up to collect the said security money. The defendants

specifically pleaded that all the receipts purported to have been

issued by the defendants are manufactured and forged.

6. On the basis of rival pleadings of the parties, the learned

trial court settled the following eight issues:-

(I) Is the suit is maintainable in its present form? (II) Is there is any cause of action for the present suit? (III) Whether suit is barred by principles of estoppel, waiver and acquiescence?

(IV) Whether suit is barred by provision of specific performance of contract?

(V) Whether the agreement to sale dtd. 28/12/2001 is legal and executable by law?

(VI) Whether there is readiness and willingness of plaintiff in performing his part of contract?

(VII) Whether plaintiff is entitled for the relief (s) as claimed? (VIII) To what relief, if any, the plaintiff is entitled to?

7. In support of his case, the plaintiff examined altogether five

witnesses and proved the documents which have been marked

Ext. 1 to Ext.7. On the other hand from the side of the defendants,

the defendants examined altogether five witnesses and also proved

the documents which has been marked Ext. A to C/a.

8. The learned trial court first took up issue no. V and after

considering the evidence in the record, as it appeared to the

learned trial court that the plaintiff has prepared the document of

agreement for sale and receipts by obtaining the signature of the

original defendant, which was put by the original defendant to be

used as receipt; regarding payment of rent. The agreement is on a

plain paper which is contrary to the claim of the plaintiff in his

statement on oath as a witness that the agreement was entered into

by writing on a non-judicial stamp paper. It appeared to the

learned trial court that Ext.1 which is a purported agreement for

sale is a forged one hence, the same is not sustainable in law and

decided the issue no. V against the plaintiff. The learned trial court

thereafter took up issue no. VI and came to the conclusion that as

the purported agreement for sale is not legally sustainable hence, it

is irrelevant whether the plaintiff is ready and willing to perform

his part of the contract on the basis of the illegal agreement and

decided the same against the plaintiff. The learned trial court then

took up issue no. III and IV together and disposed of the same as

not pressed, by the parties hence, decided the same against the

plaintiff. The learned trial court lastly took up issue nos. I, II, VII

and VIII together and concluded that there is no legal relationship

between the plaintiff and the original defendant and the agreement

for sale is not sustainable in law. Hence, the plaintiff has no cause

of action and the suit is not maintainable in its present form and

the plaintiff is not entitled to the relief prayed for and decided the

said issues against the plaintiff and dismissed the suit.

9. Being aggrieved by the judgment and decree passed by the

learned trial court, the plaintiff filed Title Appeal No.27 of 2015 in

the court of Principal District Judge, Dhanbad which was

ultimately heard and disposed of by the learned first appellate

court by the impugned judgment and decree.

10. The learned first appellate court on the basis of the materials

in the record and submissions before it, formulated the following

two points for determination :-

"(i) Whether there was a valid executable agreement to sale dtd. 28/12/2001 and 19/02/2003 between plaintiff and defendant with respect to suit property?

(ii) Whether the judgment and decree passed by ld. court below require and interference?

11. The learned first appellate court first took up the point for

determination no. (i). The learned first appellate court considered

the specific pleading of the defendants that the agreement for sale

is a forged one and the defendants filed a criminal case in this

regard; of course in which the plaintiff was acquitted. The learned

first appellate court took note of the fact that the purported

agreement for sale was not filed along with plaint and the same

was filed in the court only after the original defendant filed her

written statement and issues were framed. So till 27.06.2005 when

the said document for the first time filed in court the defendants

had no knowledge about the document. From the oral evidence

adduced by the plaintiff it appeared to the learned first appellate

court that the place and manner of execution of the document was

not proved rather it was inferred by the learned first appellate

court from the evidence in the record that the blank paper signed

by Laxmi Devi - the original defendant for the purpose of rent

receipts was used by the plaintiff, as a document and evidence for

agreement of sale and receipt of amount towards part payment of

consideration of the said sale. The learned first appellate court also

took note of the fact that had there been any agreement for sale

between the parties, there would have been negotiation between

the parties; instead of filing the Eviction Suit No. 72 of 2004 by the

original defendant and went on to hold that the purported

agreement of sale between the parties and the connected

documents are forged and manufactured documents and

answered the point for determination no. (i) against the plaintiff.

Thereafter, the learned first appellate court took up the point for

determination no. (ii) and considered that forged and fabricated

documents in the shape of agreement for sale does not give the

status of concluded contract to the document in question and

considered that the same cannot be enforced in the suit for specific

performance. So there was no necessity to decide the plea of

readiness and willingness to perform the contract and concluded

that there is no illegality in the judgment passed by the learned

trial court and dismissed the appeal.

12. It is submitted by the learned Senior Advocate appearing for

the appellant that the judgment and decree passed by both the

courts below has been passed without appreciation of the evidence

in the record. It is next submitted by the learned Senior Advocate

appearing for the appellant that both the courts below has failed to

consider that it is the admitted case of Laxmi Devi that she signed

the documents and in view of such admission both the courts

below ought to have held that there is a concluded contract of

agreement for sale between the plaintiff and the defendant and

ought to have allowed the prayer of the plaintiff. It is further

submitted by the learned Senior Advocate appearing for the

appellant that the court below came to an erroneous conclusion

and made a third case that the value of the suit premises is

Rs.54,30,000/- which is beyond the pleading therefore, it is not

permissible to be considered by the courts below. Hence, it is

submitted that the judgment and decree passed by both the courts

below be set aside and the suit of the plaintiff be decreed after

formulating appropriate substantial question of law.

13. Having heard the submissions made at the Bar and after

carefully going through the materials in the record, it is pertinent

to mention here that it is a settled principle of law that the finding

of fact of the learned first appellate court ought not be interfered

with by the second appellate court in exercise of the power under

Section 100 of Code of Civil Procedure unless there is perversity in

such finding of fact as has been held by the Hon'ble Supreme

Court of India in the case of Gurvachan Kaur and Others v.

Salikram (Dead) through LRs. reported in (2010) 15 SCC 530,

paragraph no.10 of which reads as under:-

"10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot

interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."

14. Perversity so far as it relates to interfering with the finding

of facts by exercise of the jurisdiction under Section 100 and 104 of

the Code of Civil Procedure is that if a finding of fact is arrived at

by ignoring or excluding the relevant materials or by taking into

consideration the irrelevant material or if the finding so

outrageously defies the logic as to suffer from the vice of

irrationality incurring the blame of being perverse, then the

finding is rendered infirm in the eyes of law. Similarly if the

finding of the court is based on no evidence or evidence, which is

thoroughly unreliable or the evidence that suffers from the vice of

procedural irregularity or the findings are such that no reasonable

person, would have arrived at those findings then the findings

may be said to be perverse as has been held by the Hon'ble

Supreme Court of India in the case of Municipal Committee,

Hoshiarpur vs. Punjab State Electricity Board & Ors. reported in

(2010) 13 SCC 216, para 28 of which reads as under :-

"28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings

are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483 : AIR 2010 SC 2685]." (Emphasis supplied)

and the same has been reiterated by the Hon'ble Supreme

Court of India in the case of Bharatha Matha and Another vs.

R.Vijaya Renganathan and Others reported in (2010) 11 SCC 483

and also by the Hon'ble Supreme Court of India in the case of K.N.

Nagarajappa and Others vs. H. Narasimha Reddy reported in

2021 SCC Online SC 694.

15. Now coming to the facts of the case, this Court finds that the

concurrent finding of fact arrived at by both the courts below that

the plaintiff failed to establish that purported agreement for sale is

in fact the agreement for sale is not based on any inadmissible

evidence nor such finding of fact is arrived at by ignoring or

excluding any admissible evidence.

16. Under such circumstances, this Court is of the considered

view that there is absolutely no perversity involved in such finding

of fact arrived at by both the courts below hence, there is

absolutely no substantial question of law involved in this appeal.

17. Accordingly, this second appeal being without any merit is

dismissed but under the circumstances without any costs.