Karnataka High Court
Smt Saraswathi D/O Dhulappa W/O ... vs Smt Siddamma W/O Late Sangramappa Gumma ... on 1 December, 2023
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RSA No. 7180 of 2011
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7180 OF 2011 (SP-PER)
BETWEEN:
SMT. SARASWATHI D/O DHULAPPA
(W/O SANGAPPA HEMSHETY)
AGED ABOUT: 49 YEARS,
OCC: HOUSEHOLD & AGRICULTURE
R/O: JOJNA TALUKA AURAD-B,
NOW AT PROPER BIDAR.
...APPELLANT
(BY SRI R. S. SIDHAPURKAR, ADVOCATE)
AND:
1. SMT. SIDDAMMA
W/O LATE SANGRAMAPPA GUMMA,
Digitally signed
by SHILPA R AGED ABOUT: 69 YEARS,
TENIHALLI OCC: HOUSEHOLD & AGRICULTURE
Location: HIGH
COURT OF
KARNATAKA 2. VIJAY KUMAR
S/O LATE SANGRAMAPPA GUMMA
SINCE DECEASED BY LR'S
2a. VIJAY LAXMI
W/O LATE VIJAYKUMAR GUMMA
AGED ABOUT: 50 YEARS,
OCC: AGRICULTURE,
2b. USHA
D/O LATE VIJAYKUMAR GUMMA
AGED ABOUT 23 YEARS,
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RSA No. 7180 of 2011
OCC: AGRICULTURE
BOTH R/O: H.NO. 12-3-10, PRATAP NAGAR,
NAWABAD, DIST. BIDAR.
3. SUBHASH
S/O LATE SANGRAMAPPA GUMMA
AGED ABOUT: 43 YEARS, OCC: AGRICULTURE
4. RAMESH
S/O LATE SANGRAMAPPA GUMMA
AGED ABOUT: 39 YEARS, OCC: AGRICULTURE
5. RAJKUMAR
S/O LATE SANGRAMAPPA GUMMA (DEAD)
(EXEMPTED FROM BRINGING LR;S)
6. BHARATH
S/O LATE SANGRAMAPPA GUMMA
AGED ABOUT: 35 YEARS, OCC: AGRICULTURE
ALL R/O: HARUGERI, BIDAR.
...RESPONDENTS
(BY SRI B. K. HIREMATH, ADV. FOR R1, R3, R4 & R6;
V/O DATED 21.02.2023 NOTICE TO PROPOSED R2(a) & R2(b)
IS HELD SUFFICIENT; V/O DATED 21.02.2022 APPELLANT IS
EXEMPTED FROM TAKING STEPS TO BRING LR'S OF R5)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO CALL
FOR THE RECORDS, ALLOW THE APPEAL AND SET-ASIDE THE
JUDGMENT AND DECREE DATED: 08.02.2011 PASSED IN R.A.
NO.117 OF 2007 BY LEARNED PRINCIPAL DISTRICT AND
SESSIONS JUDGE, BIDAR, CONFIRMING THE JUDGMENT AND
DECREE PASSED IN O.S. NO.78/2000 BY THE LEARNED
PRINCIPAL SENIOR CIVIL JUDGE, BIDAR, DATED: 18.09.2007,
WITH COSTS THOUGHT OUT, IN THE INTEREST OF JUSTICE
AND EQUITY.
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RSA No. 7180 of 2011
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in O.S.No.78/2000 on the file of the learned
Principal Civil Judge (Sr.Dn.), Bidar (hereinafter referred to as
'Trial Court'), is impugning the judgment and decree dated
18.09.2007, dismissing his suit for specific performance of
contract, which was confirmed in R.A.No.117/2007 on the file
of the learned Principal District and Sessions Judge, Bidar
(hereinafter referred to as 'First Appellate Court') vide
judgment dated 08.02.2011.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. Brief facts of the case are that, the plaintiff filed the
suit against defendant Nos.1 to 9 seeking decree for specific
performance of the contract against defendant Nos.1 to 6
directing them to deliver the actual possession of the land
measuring 13.34 acres out of 27.27 acres in Survey No.41
situated at Jangalkoi village, Bidar district, with the boundaries
mentioned therein (hereinafter referred to as 'suit land'), to
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execute the sale deed in favour of the plaintiff after receiving
the balance consideration amount of Rs.25,000/- and if the suit
land was acquired by defendant Nos.7 to 9, the compensation
amount in respect of the same is ordered to be paid to the
plaintiff and also for perpetual injunction restraining defendants
from alienating the suit land or any portion thereof or from
making any construction over the same.
4. It is contended that one Sangramappa was the
absolute owner in exclusive possession of Survey No.41,
measuring 27.27 acres, situated in Jangalkoi village, Bidar
district and after his death, his wife-defendant No.1 and his
sons i.e., defendant Nos.2 to 6 are in joint possession and
enjoyment of the said property. Defendant Nos.1 to 6, who are
in need of money to meet their family necessities and also to
meet the litigation expenses in respect of the suit land, jointly
agreed to sell the same in favour of the plaintiff for a total
consideration amount of Rs.1,25,000/-. They accepted
Rs.1,00,000/- as earnest money and agreed to receive balance
consideration amount of Rs.25,000/- at the time of executing
the registered sale deed. Accordingly, defendant Nos.1 to 6
have executed the registered agreement for sale on
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14.12.1992. It is agreed that on resolving the dispute in
respect of the suit land, defendant Nos.1 to 6 to execute the
registered sale deed by accepting the balance consideration
amount.
5. On 03.04.1972, Adeappa, Kanteppa and
Sharanappa, who are the sons of Channappa got their names
entered in the record of rights pertaining to Survey No.41
measuring 27.27 acres situated at Jangalkoi village, Bidar
district. Challenging the said entry, late Sangramappa had
preferred RD/APPL/CR-80/81-82 before the Assistant
Commissioner, Bidar, but, the same was came to be dismissed
vide order dated 13.05.1983. The writ petition in
W.P.No.15040/1987 was preferred impugning the said order.
They have also filed the suit seeking declaration of their title,
for perpetual injunction and also for correction of record of
rights against Kanteppa and others in O.S.No.118/1998 on the
file of the learned Civil Judge (Sr.Dn.), Bidar. The said suit was
came to be decreed on 30.06.1998. Thus, they were declared
as joint owners of the entire extent of the land in Survey No.41
and the defendants in the said suit were restrained from
interfering with the possession and enjoyment of the plaintiffs
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by granting perpetual injunction. The order passed by the
Assistant Commissioner in the appeal referred to above was
also set aside. Accordingly, the record of rights was ordered to
be corrected. In view of decreeing the suit O.S.No.118/1998,
the writ petition filed before this Court in W.P.No.15040/1987
also came to be disposed of.
6. It is contended that the plaintiff asked defendant
Nos.1 to 6 to receive the balance consideration amount of
Rs.25,000/- and to execute the registered sale deed in respect
of the suit land. Defendant Nos.1 to 6 started dragging on the
matter on one pretext or the other.
7. It is stated that on 07.04.1998 at 11.00 a.m.
defendant No.2 with some third parties came to the house of
the plaintiff demanded his signature on a document stated to
be pertaining to the litigation between the plaintiff and her
husband Sangappa Hemshetty pending before the JMFC Court
at Bidar and by misrepresentation and by playing fraud he
managed to get the signature and thumb impression of the
plaintiff on a blank stamp paper with an oblique motive. The
plaintiff lodged the complaint on 11.04.1998 before the
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concerned Police in respect of such criminal action. In the
mean while, the plaintiff has also filed suit O.S.No.88/1998 on
the file of the learned Civil Judge (Sr.Dn.) at Bidar for entering
her name in Column No.11 of the record of rights in respect of
the suit land.
8. It is stated that defendant Nos.7 to 9 acquired the
suit land in file No.LAQ/CR-1605/99-2000 dated 20.03.2000 for
construction of house by the Housing Board. The plaintiff
demanded defendant Nos.7 to 9 to cancel the acquisition, for
which, they refused to do so. Defendant Nos.1 to 6 have filed
W.P.No.8299/1999 before this Court for cancellation of the land
acquisition proceedings.
9. It is contended that the plaintiff was ready and
willing to perform her part of the contract by paying balance
consideration amount of Rs.25,000/- and to bear the
registration expenses for the purpose of getting the sale deed
registered. Defendant Nos.1 to 6 were never read and willing
to perform their part of the contract.
10. It is further contended that the defendants have
filed their written statement in O.S.No.88/1998 on 21.02.2000
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refusing to perform their part of contract. On 09.06.2000, when
the plaintiff again asked the defendants to receive the balance
consideration and to deliver the actual and physical possession
of the suit land and also to execute the registered sale deed,
they have refused to do so. Therefore, the plaintiff has filed
the suit for specific performance of the contract and for
permanent injunction as stated above.
11. During the pendency of the suit, vide order dated
20.08.2003, names of defendant Nos.7 to 9 was deleted.
12. Defendant No.2 filed the written statement denying
the contentions taken by the plaintiff. It is admitted that
Sangramappa was the owner in possession of Survey No.41
measuring 27.27 acres, but, denied other contentions of the
plaintiff that Sangramappa left behind him only six legal
representatives i.e., defendant Nos.1 to 6. It is stated that
apart from defendant Nos.1 to 6, one Sri Nagamma W/o.
Dilipkumar is also the joint owner of land bearing Survey No.41
of Jangalkoi village, Bidar district. It is denied that defendant
Nos.1 to 6 have agreed to sell the suit land in favour of the
plaintiff for a total consideration of Rs.1,25,000/- and accepted
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the advance amount of Rs.1,00,000/- or they have agreed to
cancel the sale deed after settling the dispute and by accepting
the balance consideration amount of Rs.25,000/-.
13. It is stated that even according to the plaintiff, the
agreement in question was came to be executed on
14.12.1992, but, the suit was came to be filed on 12.06.2000
i.e. after lapse of more than eights years. Therefore, the suit is
hopelessly barred by limitation. It is admitted that there was a
dispute pending between Adeppa, Kanteppa and Sharnappa on
one hand and Sangramappa on the other hand in respect of
Survey No.41 before the Assistant Commissioner, Bidar and
before this Court in W.P.No.15040/1987. It is denied that the
defendants have agreed to sell the property after settlement of
all these litigations.
14. It is contended that the suit O.S.No.118/1998 was
came to be decreed on 30.06.1998, but, the plaintiff has never
thought it fit to implead herself as a party to the said suit. The
very fact that the plaintiff kept quite for all these years in spite
of knowing pendency of O.S.No118/1998, falsifies her
contention regarding execution of an agreement of sale by the
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defendants. It is admitted that since there was error in the
revenue records in mentioning the name of Kanteppa and
others, the defendants in O.S.No.118/1998 rightly admitted the
claim of defendant Nos.1 to 6 in respect of Survey No.41 of
Jangalkoit village, Bidar district and accordingly, the suit was
decreed and the revenue records were ordered to be rectified.
15. The defendants denied that on 07.04.1998
defendant No.2 along with other unruly elements came to the
house of the plaintiff and demanded her signature. All these
allegations are made only to have cause of action for the
plaintiff to seek a decree in her favour. It is admitted that the
plaintiff had filed the suit O.S.No.88/1998 before the learned
Civil Judge (Sr.Dn.), Bidar for entering her name in the record
of rights in respect of Survey No.41, but, defendant Nos.1 to 6
have filed their written statement raising objections for the
same and denied the contention of the plaintiff that the same
has given raise to file the present suit. It is contended that
defendant Nos.1 to 6 are the owners in possession and
enjoyment of the suit property and the plaintiff is not having
any right, title or interest over the same.
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16. It is also contended that the defendants have
already sold several sites formed in the suit property laying
towards the southern side of Survey No.41, in favour of eight
different persons, under different registered sale deeds. All
those persons, who have purchased the properties are
necessary parties to the litigation.
17. It is contended that defendant No.1 to 6 have filed
writ appeal in W.A.No.8299/1999 before this Court challenging
the legality and correctness of the notification for acquisition of
the land bearing Survey No.41. An order of stay was passed
for acquisition of the said land. Therefore, the contention of
the plaintiff that an agreement for sale was executed in favour
of the plaintiff cannot be accepted.
18. It is further contended that the plaintiff had
executed and agreement in favour of defendant Nos.1 to 6 on
14.12.1992 at Bidar to the effect that the agreement for sale
dated 14.12.1992 is a sham and fictitious document, which was
executed as a guarantee deed for reimbursement of the
litigation expenses spent by the husband of the plaintiff, who is
the friend of defendant No.2. Therefore, the plaintiff cannot
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seek any relief in respect of the agreement for sale dated
14.12.1992.
19. It is contended that the plaintiff is not an
agriculturist by profession and therefore, she is not eligible for
purchasing the agricultural land in view of bar contained under
the Karnataka Land Reforms Act. On that count also, the
plaintiff is not entitled for any relief.
20. It is contended that the suit property is worth more
than Rs.80,00,000/-. The contention of the plaintiff that the
defendants have agreed to sell it for paltry sum of
Rs.1,25,000/- cannot be believed. Only with an intention to
grab the valuable property from the defendants, the plaintiff
has made false allegations. Therefore, prayed for dismissal of
the suit with costs.
21. Defendant No.2 sought for counter claim against
the plaintiff for a decree for perpetual injunction restraining
her or anybody on her behalf from interfering with the
possession and enjoyment of Survey No.41, measuring 27.27
acres situated at Jangalkoi village by the defendants and also
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to declare that the registered deed of agreement dated
14.12.1992 is a sham and fictitious document.
22. On the basis of all these pleadings, the Trial Court
framed the following:
ISSUES
1) Whether the plaintiff proves that the defendant no.1
to 6 have agreed to sell the suit land sy.no.41,
measuring 13 acres 34 guntas of village Jangalkoi,
Bidar, for consideration of Rs.1,25,000/- and
executed Registered Agreement of Sale dated:
14.12.1992?
2) Whether plaintiff further proves that in pursuance of
agreement of sale, she has paid earnest of
Rs.1,00,000/- to the defendants?
3) Whether plaintiff further prove that she was/is ready
ad willing to perform her part of contract under
agreement of sale?
4) Whether plaintiff is entitle for the decree of specific
performance of contract directing the defendant no.1
to 6 to execute the Registered Sale Deed on receipt
of balance consideration of Rs.25,000/- in respect of
suit land Sy. No.41, measuring 13 acres 34 guntas of
village Jangalkoi?
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5) Whether the defendant no.1 to 6 prove that the
impugned Registered Deed of Agreement dated:
14.12.1992 executed in favour plaintiff in respect of
Southern portion of land sy. O. 41 of village Jangolki,
is a sham and fictitious document and not real Deed
of Agreement of sale?
6) Whether defendant no. 1 to 6 further prove that he
is entitled of the relief of perpetual injunction sought
against the plaintiff?
7) Whether the defendant no.1 to 6 are entitled for
compensatory costs of Rs.25,000/- from the
plaintiff??
8) What order or decree?
ADDITIONAL ISSUES
1. Whether the defendants prove that the plaintiff
has executed deed of agreement on dated:
14.12.1992 in their favour as alleged in para no.12
of written statement.
23. The plaintiff examined herself as PW.1. PW.2 is the
husband of the plaintiff and PW.4 is her brother. PW.3 is the
attesting witness to the agreement for sale. The plaintiff got
marked Exs.P1 to P25 in support of her contentions. Defendant
No.2 examined himself as DW.1 and got marked Exs.D1 to D4
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in support of his defence. The Trial Court after taking into
consideration all these materials on record answered issue
Nos.1 to 7 and additional No.1 in the negative and accordingly
dismissed the suit of the plaintiff.
24. Being aggrieved by the same, the plaintiff has
preferred R.A.No.117/2007. The First Appellate Court on re-
appreciation of the materials on record dismissed the appeal by
confirming the impugned judgment and decree passed by the
Trial Court. Being aggrieved by the same, the plaintiff is before
this Court.
25. Heard learned counsel Sri R.S.Sidhapurkar for the
appellant/plaintiff and learned counsel Sri B.K.Hiremath for
respondent Nos.1, 3, 4 and 6/defendant Nos.1, 3, 4 and 6.
26. Learned counsel for the appellant contended that
even though there is concurrent findings of fact by the Trial
Court as well as the First Appellate Court in dismissing the suit
of the plaintiff, both the Courts have recorded a finding
erroneously. The approach of the Trial Court as well as the
First Appellate Court was perverse. Even though defendant
No.2 is the contesting defendant, he has admitted in several
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words about execution of the agreement for sale dated
14.12.1992 and sought for counter claim i.e., for declaration
that the said agreement for sale is a sham and fictitious
document. Both the Courts have committed an error in
recording the finding that the plaintiff has not proved execution
of agreement for sale itself. Admittedly, the defendants are the
owners of the land in question. The agreement for sale is a
registered agreement. There is a presumption in its favour,
but, the both the Courts have not taken into consideration the
oral and documentary evidence placed before it and proceeded
to dismiss the suit without any basis. Defendant No.2 based
his defence on Ex.D1 dated 14.12.1992 contending that it s a
contemporaneous document got executed by the plaintiff to the
effect that Ex.P1 - the registered agreement for sale is a sham
and fictitious document, such prayer made by defendant No.2
itself go to show that the defendants have executed Ex.P1 and
they are bound by the terms of the agreement. Therefore, the
Trial Court and the First Appellate Court should have decreed
the suit of the plaintiff as prayed for.
27. Learned counsel also contended that in view of the
amendment to Section 10 of the Specific Relief Act, granting of
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relief for specific performance of contract is no longer a
discretionary relief. Under such circumstances, the plaintiff is
entitled for the relief of specific performance of the contract. In
support of his contention, learned counsel places reliance on
the decision of the Apex Court in the case of B.Santoshamma
and Another vs. D.Sarada and Another1 and also in the
case of Vathsala Manickavasagam and Others vs.
N.Ganesan and Another2 and contended that once defendant
No.2 admits execution of Ex.P1, he cannot be permitted to lead
contra evidence to disprove such document. Therefore, the
learned counsel prays for allowing the appeal in the interest of
justice.
28. Per contra, learned counsel for respondent Nos.1, 3,
4 and 6 opposing the appeal submitted that the plaintiff, who
has approached the Court with a specific pleading regarding
execution of agreement for sale, failed to probabilise such
contention. The Trial Court and the First Appellate Court gave
valid reasons for rejecting the claim of the plaintiff. There are
2020 SAR (Civ) 1131
2013 SAR (Civil) 851
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no reasons to interfere with the concurrent findings of fact.
Hence, he prays for dismissal of the appeal.
29. Perused the Trial Court and the First Appellate
Court records.
30. It is the specific contention of the plaintiff that
defendant Nos.1 to 6 are the owners in possession of the suit
property and they agreed to sell the same in favour of the
plaintiff for Rs.1,25,000/-. They received Rs.1,00,000/- and
executed the registered agreement for sale as per Ex.P1 dated
14.12.1992. Since there was a litigation in respect of the
subject matter of the registered agreement for sale, two years
time was fixed to execute the sale deed by accepting the
balance consideration of Rs.25,000/-. However, after clearing
the dispute or litigation in respect of the suit property, the
plaintiff demanded the defendants to execute the sale deed in
terms of agreement for sale. Since they were not ready and
willing to execute the sale deed, the plaintiff approached the
Trial Court by filing the suit for specific performance of the
contract.
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31. On the contrary, it is the specific defence taken by
the defendants that even though they are the owners of the
suit property along with another legal representative by name
Nagamma. So she is a necessary party. It is further contended
that the value of the property was more than Rs.80,00,000/-
and there was no question of the defendants agreeing to sell
the same in favour of the plaintiff for paltry sum of
Rs.1,25,000/-. Various issues were framed by the Trial Court
on the basis of the real controversy between the parties.
32. Issue Nos.1 to 4 were framed placing burden on the
plaintiff, whereas, issue Nos.5 to 7 and additional issue No.1
were framed placing burden on the defendants. Even though
several issues were framed placing burden on the defendants,
the primary burden is on the plaintiff to prove execution of the
registered agreement for sale dated 14.12.1992 produced as
per Ex.P1. To prove this document, the plaintiff herself has
stepped into the witness box and deposed as PW.1. This
witness pleaded her ignorance about the revenue documents
pertaining to the suit property. But, she mainly depends on the
evidence of her husband, who is examined as PW.2 and her
brother Ghaleppa examined as PW.4. Eve though the plaintiff
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contends that she has put her left thumb impression on the
document, she was unable to identify the same. The plaintiff
subscribed her signature in the plaint, but, there is no
reasonable explanation as to why she has put her left thumb
impression on Ex.P1. Strangely, PW.1 had not verified any of
the revenue records pertaining to the suit property. According
to her she was completely depending on PWs.2 and 4 for
entering into an agreement with the defendants.
33. PW.2 is the husband of the plaintiff. He also pleads
his ignorance about the revenue records in respect of the suit
property and in whose name it stands. The witness
categorically stated that he had not participated in the sale
talks and he was not even aware of the exact amount of
consideration agreed between the parties. The witness states
that he had not made any enquiry regarding the suit property
or whether any litigation is pending in respect of the same.
Therefore, even PW.2 has not taken active role in finalising the
sale transaction or entering into an agreement as per Ex.P1.
34. PW.3 is said to be the attesting witness to Ex.P1.
This witness also states that he had not taken part in the sale
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talks, which preceded the agreement for sale, he never seen
the property in question nor he had verified the revenue
records and he knows nothing except subscribing his signature
on Ex.P1. The witness stated that he had not seen any
document in respect of the suit property. Therefore, much
importance cannot be attached to the evidence of this witness
as well.
35. PW.4 is the brother of the plaintiff, who said to
have played important role in getting Ex.P1 execute. During
cross-examination, this witness stated that record of rights in
respect of the suit property was standing in the name of
Siddamma and Adeppa in the year 1990 and he had not made
any enquiry with regard to the dispute in respect of the suit
property. The witness states that he was not present when the
agreement in question was executed nor he had verified the
revenue records. The witness categorically stated that
registration of the sale deed was postponed for want of fund
with the plaintiff. The evidence led on behalf of the plaintiff
was very shabby and there is no consistency amongst the
witnesses deposed before the Court about the contentions
taken by the plaintiff.
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36. On perusal of Ex.P1, there is clear interpolation of a
sentence to the effect that the sale transaction has to be
completed within two years. There is absolutely no explanation
as to why and where the said sentence was added. It is also
pertinent to note that the agreement for sale is in respect of
the portion of the land, but, it does not disclose as to which
portion of the land was agreed to be sold. According to the
plaintiff, she agreed to purchase the southern side portion of
the land in question. But, there is no reason as to why no such
description is given while entering into and agreement as per
Ex.P1. The cumulative effect of these facts and circumstances
go to show that the plaintiff has made half hearted attempt to
prove Ex.P1.
37. Defendant No.2 has taken a defence and also made
counter claim. When the plaintiff herself failed to probabilise
her contention regarding proof of execution of agreement for
sale - Ex.P1, the burden cannot be shifted on to the defendants
to brobabilise their defence. However, defendant No.2 also not
made out any ground to entertain the counter claim and
therefore, the same is liable to be dismissed.
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38. Learned counsel for the appellant contended that
since Ex.P1 - agreement for sale is a registered document, it
has got presumption in its favour and the Trial Court and the
First Appellate Court have committed an error ignoring the
same. Ofcourse, a document which is registered is considered
as public document and will have some evidentiary value to
began with, but, once the parties led their evidence in proof of
such document and in the light of the discrepancies which are
highlighted above, the suit of the plaintiff cannot be decreed
solely on the ground that Ex.P1 is a registered document. The
law does not raise presumption in favour of Ex.P1 simply
because it is a registered document to accept the same without
any further proof. When the plaintiff has failed to discharge her
primary burden of proving execution of the document, the
same cannot be based on the pleadings of the defendants in
that regard.
39. Even though the learned counsel for the appellant
places reliance on the decision of the Apex Court in the case of
B.Santoshamma (supra) in support of his contention that
after the amendment to Section 10 of the Specific Relief Act,
granting the relief specific performance is discretionary, the
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same is not applicable to the facts and circumstances of the
present case as execution of the agreement for sale itself is not
proved by the plaintiff.
40. The other decision of the Apex Court in the case of
Vathsala (supra) relied upon by the learned counsel for the
appellant in support of his contention that the admission made
by the defendants with regard to execution of Ex.P1 is to be
taken into consideration in proof of Ex.P2, also cannot be
accepted as both the plaintiff and defendant No.2 have led
shabby evidence in support of their respective contentions
raised in the plaint as well as in the written statement. As a
result, the plaintiff, who has approached the Court with a
specific pleadings seeking specific performance of the contract
should failed.
41. I have gone through the impugned judgment and
decree passed by the Trial Court and the First Appellate Court.
The Trial Court and the First Appellate Court have taken
consideration the oral and documentary evidence in a proper
perspective and dismissed the suit of the plaintiff recording
concurrent findings of fact. The scope of Section 100 of CPC to
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consider the second appeal against such concurrent findings of
fact is very limited.
42. It is relevant to refer to the recent decision of the
Hon'ble Apex Court in Chandrabhan (Deceased) through
LRs. And others vs. Saraswati and Others3 reported in AIR
2022 SC 4601, wherein, the Court has extensively dealt with
the parameters for framing substantial question of law and the
circumstances under which the findings of the Trial Court or the
First Appellate Court could be interfered with in the second
appeal. It also discussed as to whether the recitals or contents
of a document could be a question of fact or a question of law'.
The Apex Court held in paragraph Nos.31, 32, 33 and 36 as
under:
"31. The proper test for determining whether a
question of law raised in the case is substantial
would be, whether it is of general public importance
or whether it directly and substantially affects the
rights of the parties and if so, whether it is either an
open question in the sense that it is not finally
settled by this Court. If the question is settled by the
highest court or the general principles to be applied
AIR 2022 SC 4601
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in determining the question are well settled and
there is a mere question of applying those principles
or the question raised is palpably absurd, the
question would not be a substantial question of law.
32. 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 bearing on the decision of the case, if
answered either way, insofar as the rights of the
parties before it are concerned. To be a question of
law "involving in the case" there must be first, a
foundation for it laid in the pleadings and the
question should emerge from the sustainable
findings of fact arrived at by court of facts and it
must be necessary to decide that question of law for
a just and proper decision of the case. An entirely
new point raised for the first time before the High
Court is not a question involved in the case unless it
goes to the root of the matter. It will, therefore,
depend on the facts and circumstance of each case
whether a question of law is a substantial one and
involved in the case or not, the paramount overall
consideration being the need for striking a judicious
balance between the indispensable obligation to do
justice at all stages and impelling necessity of
avoiding prolongation in the life of any lis. (See
Santosh Hazari v. Purushottam Tiwari).
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33. The principles relating to Section 100 of the
CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or
contents of a document is a question of fact. But the
legal effect of the terms of a document is a question
of law. Construction of a document involving the
application of any principle of law, is also a question
of law. Therefore, when there is misconstruction of a
document or wrong 7 (2001) 3 SCC 179 application
of a principle of law in construing a document, it
gives rise to a question of law.
(ii) The High Court should be satisfied that the
case involves a substantial question of law, and not a
mere question of law. A question of law having a
material bearing on the decision of the case (that is,
a question, answer to which affects the rights of
parties to the suit) will be a substantial question of
law, if it is not covered by any specific provisions of
law or settled legal principle emerging from binding
precedents and involves a debatable legal issue. A
substantial question of law will also arise in a
contrary situation, where the legal position is clear,
either on account of express provisions of law or
binding precedents, but the court below has decided
the matter, either ignoring or acting contrary to such
legal principle. In the second type of cases, the
substantial question of law arises not because the
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law is still debatable, but because the decision
rendered on a material question, violates the settled
position of law.
(iii) The general rule is that the High Court will
not interfere with findings of facts arrived at by the
courts below. But it is not an absolute rule. Some of
the well-recognised exceptions are where (i) the
courts below have ignored material evidence or acted
on no evidence; (ii) the courts have drawn wrong
inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast the
burden of proof. When we refer to "decision based on
no evidence", it not only refers to cases where there
is a total dearth of evidence, but also refers to any
case, where the evidence, taken as a whole, is not
reasonably capable of supporting the finding.
36. Right of appeal is not automatic. Right of
appeal is conferred by statute. When statute confers
a limited right of appeal restricted only to cases
which involve substantial questions of law, it is not
open to this Court to sit in appeal over the factual
findings arrived at by the First Appellate Court."
(Emphasis Supplied)
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43. It is relevant to refer to the decision of the Hon'ble
Apex Court in Thiagarajan and Others v. Sri
Venugopalaswamy B. Koil and Others4, where the scope
and ambit of Section 100 was discussed at length and it is held
that existence of substantial question of law is sine-qua-non for
the exercise of the jurisdiction under the amended provisions of
Section 100 of CPC. It is re-iterated that where findings on
facts by the First Appellate Court are based on evidence, the
High Court in second appeal cannot substitute its own findings
on re-appreciation of evidence, merely on the ground that
another view was possible.
44. In Narayan Rajendran and Another v. Lekshmy
Sarojini and Others5, the Apex Court discussed at length
about the scope and ambit of Section 100 CPC both prior to the
amendment to CPC in 1976 and after it and held that the
second appeal can lie only on one or the other grounds
specified in the section. It is also held that even before the
amendment, interference under Section 100 CPC was limited
and after the amendment the power has been further curtailed.
(2004) 5 SCC 762
(2009) 5 SCC 264
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The amendment Act 1976 has introduced drastic changes in the
scope and ambit of this section which is now confined to cases
where a question of law is involved and such question must be
a substantial one. The Court has referred to several such
judgments after amendment to Section 100 of CPC and re-
iterated that the jurisdiction of the High Court under this
section to entertain a second appeal is confined only to such
appeals which involve a substantial question of law and it does
not confer any jurisdiction to interfere with pure question of
fact while exercising its jurisdiction.
45. The Hon'ble Apex Court referred to its earlier
decision in Madhavan Nair Vs Bhaskar Pillai6, to hold that
the High Courts are not justified in interfering with the
concurrent findings of fact. It is held that even if the First
Appellate Court commits an error in recording a finding of fact,
that itself will not be a ground that the High Court to upset the
same.
46. Referring to the Fifty Fourth report of the Law
Commission of India submitted in 1973, the legislative
(2005) 10 SCC 553
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background which led to amendment of Section 100 CPC was
highlighted that 'the question could perhaps be asked, why the
litigant who wishes to have justice of the highest court of the
State should be denied the opportunity to do so, atleast where
there is a flaw in the conclusion of facts reached by the Trial
Court or by the Court of first appeal. The answer is obvious
that, even litigants have to be protected against too persistent
a pursuit of their goal of perfectly satisfactory justice. It is held
that an unqualified right of first appeal may be necessary for
the satisfaction of the defeated litigant; but a wide right of
second appeal is more in the nature of a luxury'. Thus, the
Apex Court once again crystallized the legislative intention by
referring to its earlier decisions to caution the High Courts to
refrain from interfering with the concurrent findings of fact
without there being a substantial question of law. Thus, the
position of law is very well settled with regard to interference
under Section 100 of CPC.
47. In view of the above, even if two views are possible
on the basis of the materials that are placed before the Court,
unless it is shown that the view taken by the trial Court and the
First Appellate Court is either perverse or against the materials
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that are placed before the Court or against the settled
proposition of law, this Court shall not interfere with the
impugned judgment and decree. The reasons assigned by the
trial Court and the First Appellate Court cannot be termed as
perverse or against the settled proposition of law.
48. It is therefore, I am of the opinion that the
impugned judgment and decree passed by the Trial Court and
the First Appellate Court do not call for any interference by this
Court. Hence, no substantial question of law arise for
consideration in this appeal and proceed to pass the following:
ORDER
(i) The appeal is dismissed with costs.
(ii) The judgment and decree dated 18.09.2007
passed in O.S.No.78/2000 on the file of the
learned Principal Civil Judge (Sr.Dn.) at
Bidar and the judgment decreed dated
08.02.2011 passed R.A.No.117/2007 on the
file of the learned Principal District and
Sessions Judge at Bidar, are hereby
confirmed.
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Registry is directed to send back the Trial Court and the First
Appellate Court records along with copy of this judgment.
Sd/-
JUDGE
SRT
CT-VD
