Madhya Pradesh High Court
Smt. Savitri vs Smt. Begubai on 9 February, 2024
Author: Amar Nath Kesharwani
Bench: Amar Nath Kesharwani
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
SECOND APPEAL NO.3101 OF 2019
BETWEEN:-
SMT. SAVITRI W/O TUKARAM MALVIYA AGED
ABOUT 52 YEARS OCCUPATION HOUSE WIFE,
RESIDENT OF WARD NO.37, IN THE HOUSE OF
T.R. RANE, CHANDAN NAGAR, CHANDANGAON,
TAHSIL & DISTRICT CHHINDWARA (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI BALRAM KOSHTA - ADVOCATE)
AND
1. SMT. BEGUBAI W/O BAARU BARASKAR,
AGED ABOUT 83 YEARS, OCCUPATION HOUSE
WIFE RESIDENT OF WARD NO.36, BHARTADEO
ROAD, PACHMARHIDHANA, CHANDANGAON,
TAHSIL AND DISTRICT CHHINDWARA
(MADHYA PRADESH)
2. STATE OF MADHYA PRADESH,
THROUGH DISTRICT MAGISTRATE
CHHINDWARA, TAHSIL AND DISTRICT
CHHINDWARA (MADHYA PRADESH)
.....RESPONDENTS
(MS. SHAKTI TRIPATHI - PANEL LAWYER FOR THE RESPONDENT
NO.2/STATE)
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Reserved on : 23/01/2024
Delivered on : 09/02/2024
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This Second Appeal having been heard and reserved for order,
coming on for pronouncement on this day, Justice Amar Nath
(Kesharwani) pronounced the following :
Signature Not Verified
Signed by: ANURAG SONI
Signing time: 09-02-2024
19:28:56
2
ORDER
Heard on admission.
This Second Appeal has been preferred by the appellant/plaintiff
under Section 100 of the Code of Civil Procedure being aggrieved by
the judgment and decree dated 08/08/2019 passed by Ist Additional
District Judge, Chhindwara, District Chhindwara (M.P.) in Regular
Civil Appeal No.1800128-A/2016, whereby learned Additional District
Judge dismissed the appeal and affirmed the judgment and decree
dated 20/09/2016 passed by VIth Civil Judge, Class-II, Chhindwara,
District Chhindwara (M.P.) in Regular Civil Suit No.150082-A/2015,
whereby the suit filed by appellant/plaintiff for specific performance of
contract was dismissed holding that the plaintiff could not prove his
readiness and willingness to perform his part of agreement.
2. Brief facts of the case are that the appellant/plaintiff filed a civil
suit before the learned trial Court for permanent injunction and specific
performance of contract over the suit land bearing khasra No.630/10
admeasuring 36 X 15 feet total area 540 sq. feet. situated at
Chandangaon, Patwari Halka No.20, Chhindwara, District
Chhindwara. It was alleged that appellant/plaintiff entered into an
agreement with respondent No.1/defendant No.1 to purchase the suit
property for a consideration of Rs.13,500/- and in lieu of that he paid
Rs.10,000/- as earnest money to the respondent No.1 and balance
amount was to be paid at the time of execution of sale deed. At that
time possession of the suit property was given to the appellant.
Thereafter, on many occasions appellant asked respondent No.1 to
execute the sale deed, but respondent No.1 did not execute the sale
deed. Thereafter, when appellant came to know that the respondent
No.1 is going to sell the suit property to another person, he filed civil
suit before the trial Court for permanent injunction and specific
performance of contract.
3. Learned trial Court after framing of issues and recording of
evidence, dismissed the suit, against which appellant/plaintiff preferred
an appeal, which was also dismissed, against which present appeal has
been filed.
4. Appellant has filed this appeal challenging the concurrent
finding of the trial Court as well as First Appellate Court and in the
memo of appeal, 9 substantial questions of law have been prepared, but
during course of arguments learned counsel for the appellant restricted
his argument only upon substantial question (b), which is reproduced
herein below :-
"(b) Whether as per finding dated 22/06/2006 ought to be
got executed while the court has accepted it has been
proved by appellant?"
5. Learned counsel for the appellant drew the attention of this Court
towards agreement to sale (Ex.P-1) and Para-10 of cross-examination
of Savitri Bai (PW-1) and prayed to admit the appeal.
6. I have heard the contentions of learned counsel for the appellant,
perused the record and impugned judgment.
7. It revals from the record that alleged agreement (Ex.P-1) was
executed on 22/06/2006 and Civil Suit was filed on 17/06/2015. The
learned trial Court as well as First Appellate Court has given the
finding that the suit was filed within limitation. Learned First Appellate
Court also found that the defendant No.1 was not the owner of the suit
property, so she was not competent to execute the agreement to sell the
suit property. Learned First Appellate Court has directed the
respondent No.1 to refund the advance consideration amount of
Rs.10,000/- to the appellant along with interest @ 6.5% per annum.
8. It reveals from the judgment of trial Court as well as First
Appellate Court that both the Courts have considered the pleadings of
the parties and evidence placed on record and after marshaling the
entire evidence, the issues involved in the case were properly decided
by the trial Court as well as First Appellate Court. There are concurrent
findings of fact by both the Courts. Learned counsel for the appellant is
unable to show that those findings are either contrary to record or
perverse. Learned counsel for the appellant is also not able to point out
any substantial question of law which needs adjudication in this
Second Appeal.
9. After perusing the entire record, especially the agreement in
question and in view of the concurrent findings of fact recorded by
both the Courts below in respect of readiness and willingness, this
Court does not find any illegality in the judgment and decree passed by
Courts below.
10. In the case of Kondiba Dagadu Kadam vs Savitkibai Sopan
Gujar And Ors., (1999) 3 SCC 722 Hon'ble Apex Court held that the
High Court must satisfy itself that substantial question of law is
involved and must then formulate the question of law on which the
appeal could then be heard. It is also held that the concurrent findings
of fact however erroneous cannot be disturbed under Section 100 of the
CPC.
11. In the case of Suresh Lataruji Ramteke Vs. Sau. Sumanbai
Pandurang Petkar & Others, 2023 LiveLaw (SC) 821 Hon'ble Apex
Court has held that a Court sitting in second appellate jurisdiction in
ordinary course, the High Court in such jurisdiction does not interfere
with finding of fact.
12. As discussed above, in view of concurrent findings of the fact, I
find no reason to entertain this appeal. Hence, appeal sans merit and is
hereby dismissed.
13. Cost of the appeal will be borne by the appellant himself.
14. Let the record of the trial Court as well as First Appellate Court
be sent back to the concerned Court alongwith the copy of this order.
(AMAR NATH (KESHARWANI))
JUDGE
as.
