Jharkhand High Court
Sobhagmal Jain (Deleted Vide Order ... vs Uday Lal Sahu @ Uday Kumar Sahu Son Of Late ... on 5 August, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 78 of 1999 (R)
1. Sobhagmal Jain (deleted vide order dated 06.06.2011)
1(a) Kailash Chand Jain
1(b) Kajormal Jain (deleted vide order dated 04.08.2025)
1(b) (1) Manju Jain aged about 67 years, widow of the late Kajor Mal
Jain
1(b) (2) Neha Jain, aged about 41 years, daughter of late Kajor Mal
Jain
1(b) (3) Aniket Jain, aged about 36 years, S/o Kajor Mal Jain
All resident of village Mahabir Mandir Chowk, Post Boddam Bazar,
P.S. Sadar Hazaribag, Dist. Hazaribag, Jharkhand
1(c) Bhagchand Jain
1(d) Santosh Kumar Jain
1(e) Nirmal Kumar Jain
1(f) Sunil Kumar Jain
1(g) Manoj Kumar Jain
1(h) Rashmi Jain ... ... Plaintiff/respondent/appellants
Versus
1. Uday Lal Sahu @ Uday Kumar Sahu son of Late Asharfi Lal Sahu
2. Smt. Chandrakanta Devi daughter of Shri Achit Lal Sahu wife of
Asharfi Lal Sahu (deleted vide order dated 06.05.2002)
Both residents of Mohalla Boddom Bazar, Golapatti Hazaribagh,
P.O. and P.S. Hazaribagh, Dist. Hazaribagh
Defendants/appellants/Respondents
3. Md. Ikram
4. Md. Ashar @ Md. Ashar
5. Md. Ibrar
6. Md. Ikrar son of late Immame Haque
7. Jaimun Khatoon wife of Hafiz and daughter of Imamme Haque
All residents of Pugmal Hazaribagh
8. Sahida Khatoon wife of Ikram daughter of Late Imamul Haque
village Sibla District Chatra
9. Jubeda Khatoon wife of Md. Shfique @ Saquib and daughter of
Late Imamul Haque village Amar Nagar, District Nawadah
10.Hushn Ara wife of Late Md. Basir, Deceased
11.Md. Arif
12.Md. Ashraf
13.Md. Suhail
14.Md. Javed, 13 and 14 sons of late Md. Basir
15.Sakila
16.Nahid
17.Shana Prawin daughters of late Md. Basir
18.Saqukta Pravir wife of late Md. Imamul Haque, Pugmmul, District
Hazaribagh
Nos. 10 to 17 residents of Mohalla Hindpiri, P.S. Lower Bazar,
District Ranchi
19.Akhtar Hussain
20.Md. Manjoor both sons of late Fakir Mohammad
21.Nazima Khatoon wife of Serajuddin resident of Katkamsundi
Road, P.O. P.S. District Hazaribagh
22.Nawin Kumar Sahu
23.Om Prakash Sahu
24.Bina Kumari Sahu minor son and daughter of late Ashraf Lal Sahu,
through Shri Kishori Mohan Prasad Advocate G.A. I resident of
Boddom Bazar, Gola Patti, Hazaribagh
... Proforma/defendants/respondents
--
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Mr. Rahul Kumar Gupta, Advocate
For the Respondents : Mr. Ayush Aditya, Advocate
---
22/05.08.2025 Learned counsel for the parties are present.
2. This appeal has been admitted for hearing vide order dated
21.11.2000 on the following substantial question of law:-
"Whether the Court of appeal below erred in law in holding
that defendant no. 2 and 3 had neither actual nor constructive
notice of the agreement for sale in favour of the plaintiff?"
3. The suit was filed for a decree of specific performance of
contract dated 05.08.1979 (Exhibit-5) between the plaintiff and the
original defendant no. 1 Most. Saliman and also for a direction upon
the other defendants to join in a conveyance. A prayer for permanent
injunction was also made.
4. The learned Trial Court had decreed the suit.
5. Upon appeal filed by the defendant nos. 1 and 2 the learned 1 st
Appellate Court reversed the judgment and consequently the plaintiff
is the appellant before this court.
6. It further appears that earlier, against the Trial Court judgment
dated 11.03.1988 passed in Title Suit No. 43 of 1981, Title Appeal
No. 27 of 1988 was filed which was disposed of vide judgment dated
6th March 1991 by way of remand. The learned First Appellate court at
that point of time also framed the point for determination in paragraph
7 while remanding the matter which is quoted as under:-
Para 7:- The points for consideration are
(i) was the agreement dated 05.08.79 is genuine and
valid?
(ii) Had the defendants purchased the suit property on
25.01.1980 with due knowledge of the agreement to
sale dated 05.08.79 and
(iii) Was the suit barred under the provisions of Order II
Rule 2 of the C.P.C. and under other provisions of
law?"
7. While remanding the matter, following observations have been
made in paragraph 8 and 9 which is quoted as under: -
"8 Both sides have examined large number of witnesses
and have filed several documents, which are exhibits. The
learned lower court has not taken care to analyse the
evidence either oral or documentary adduced by the
parties. He has simply quoted the evidence of some of the
witnesses, what they deposed in their exanimation in chief.
He did not analyse their evidence in their cross
examination in order to test the veracity of the witnesses.
Not only that, he has not discussed the evidence of Some of
the material witnesses, nor did he discuss all the exhibits on
the record of the case. Further, the parties examined three
experts on the point of L.T.I. of the executants of the alleged
agreement to sale. The learned lower court accepted the
evidence of expert examined on behalf of the plaintiff and
rejected the evidence of the expert examined on behalf of
the defendants without analysing the evidence of any of the
expert and without giving any cogent and convincing
reason for his conclusion. The learned lower court simply
derived some conclusion of the other on the basis of certain
circumstances. Such funding in no finding in the eye of
Law.
9. In view of what has been discussed above, the impugned
judgment and decree of the learned lower court cannot be
upheld under law. Accordingly, they are set aside and the
case is remanded back to the learned lower court for
deciding the same according to law, keeping in view the
observations made above."
8. Fresh judgment upon remand was passed by the learned 1st
appellate court on 31.07.1999 and following points of determination
were framed keeping in view the order of remand passed by the
learned 1st Appellate Court dated 06.03.1991 in Title Appeal No. 27 of
1988. The points for determination by the learned 1 st Appellate Court
upon remand are as under:-
" (I) Whether the document dated 5.8.1979 was rightly
held to be a genuine document.
(II) Whether the learned court below had found sufficient
evidence to hold that the defendant/appellants had actual
or constructive notice of the agreement.
(III) Whether the learned court had failed to take into
consideration that the defendant/appellants had been
able to prove their title and possession over the suit
premises.
(IV) Whether the decree was nullity on the ground that it
was passed against a dead person.
(V) Whether the suit was barred by order 2 rule 2 C. P.C.
(VI) Whether agreement purported to be an agreement of
sale was a contract or mere undertaking.
(VII) Whether the judgment and decree passed in
T.S.43/81 was fit to be set aside or interfered with on any
other ground."
9. The learned counsel for the respondents at the threshold has
submitted that neither the trial court nor the first appellate court has
framed any issue on the point of readiness and willingness on the part
of the plaintiff to perform his part of the contract relating to exhibit-5.
He has also submitted that though no substantial question of law has
been framed on this point but if the substantial question of law is
answered in favour of the appellants, then under such circumstances
the aforesaid point is also required to be taken into consideration and
if the appeal is decided against the appellants on the substantial
question of law, then he has nothing to say.
10. The learned counsel for the appellants in response to the
submission of the respondents has submitted that law is well settled
that at the second appellate stage, the court has to confine itself to the
substantial question of law so framed. The learned counsel has also
submitted that the respondents is otherwise also estopped from raising
such a plea in view of the fact that the fresh 1st appellate court
judgment has been passed after the order of remand wherein specific
issues were also indicated which were required to be decided by the
learned 1st Appellate Court.
11. He has also submitted that appeal was filed by the respondents
before the learned First Appellate Court and at any point of time, the
respondents never raised any objection with regard to framing of issue
by the learned Trial Court on the point of readiness and willingness
regarding performance of the part of the contract by the plaintiff and
even before the first appellate court, no such plea was raised. The
learned counsel has submitted that submissions are specifically
recorded in paragraph 8 of the impugned judgment where no such
ground has been raised.
12. The learned counsel has submitted that in paragraph 7 of the
plaint a plea was raised that the plaintiff was ready and willing to
perform his part of the contract but the defendant no. 1 with whom the
agreement was entered into i.e. Exhibit-5 never appeared before the
court nor filed any written statement and at any point of time she did
not participate in the proceedings. The learned counsel has submitted
that upon the death of defendant no. 1, she was substituted and written
statement was filed on behalf of the minor legal heirs through the
guardian but again no objection with regard to the readiness and
willingness was taken. The learned counsel has also submitted that so
far as written statement filed by the defendant no. 2 and 3 are
concerned, they also did not dispute the statement made by the
plaintiff that the plaintiff were ready and willing to perform his part
of the agreement.
13. The learned counsel has submitted that since the readiness and
willingness to perform the part of the contract on the part of the
plaintiff was not in dispute, neither any issue was framed by the
learned Trial Court, nor any such issue was framed by the learned first
appellate court and the substantial question of law framed by this court
is only required to be answered.
14. The learned counsel for the appellants submits that he has to go
through the records of this case to advance arguments on the
substantial question of law already framed by this court and
accordingly prays that the matter be posted on 11.08.2025.
15. The learned counsel for the respondents has no serious
objection to the prayer made.
16. Post this case under the same heading on 11.08.2025 to be
taken up as a first case at 10:30 A.M.
(Anubha Rawat Choudhary, J.)
Binit
