Rajasthan High Court
Chandulal vs Ramveer And Anr on 7 November, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 151/2017
Chandulal S/o Dayaram, aged about 70 years, R/o Baghana,
Teh. Kotkasim, Distt. Alwar
----Appellant-Appellant
Versus
1. Ramveer S/o Jairam, R/o Heli Mandi Todapura, Distt.
Gurgaon, Haryana
2. Ramkishn S/o Chandu, R/o Baghana, Teh. Kotkasim Distt.
Alwar
----Respondent-Defendants
For Appellant(s) : Mr. Mohit Gupta
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
07/11/2022
1. The instant civil second appeal under Section 100 CPC has
been preferred by appellant-plaintiff assailing the judgment and
decree dated 28.11.2016 passed in Civil Regular Appeal No.
6/2010 by the Additional District Judge No.1, Kishangarh Bas,
Alwar whereby and whereunder dismissing the appeal and
affirming the judgment and decree dated 10.03.2010 passed in
Civil Suit No.96/1997 by the Civil Judge (Jr. D.) Kishangarh Bas,
Alwar whereunder the plaintiff's suit for specific performance of
agreement dated 30.07.1988 has been dismissed.
2. Heard learned counsel for appellant and perused the
impugned judgments.
3. It has come on record that defendant No.1-Ramveer from
whom plaintiff-Chandulal alleges to purchase the suit property
(2 of 4) [CSA-151/2017]
through agreement dated 30.07.1988, was minor at the time of
agreement. Appellant plaintiff, on the basis of voter list claimed
that defendant No.1 was major but in counter, defendant No.1 has
produced the mark-sheet of Secondary Board (Exh.D/2) wherein
his date of birth is indicated as 08.08.1970. Both courts below
have treated the agreement in question as void and has observed
that defendant No.1 has sold the land in question to defendant
No.2-Ramkishn through registered sale deed dated 01.10.1997.
4. Counsel for appellant submits that both courts below have
not disbelieved on the execution of agreement dated 30.07.1988
and under this agreement, plaintiff paid Rs.19,000/- to defendant
No.1-Ramveer by way of cash, therefore if the agreement was not
held liable to be specifically enforceable, at least a decree for
refund of Rs.19,000/- should have been passed and therefore,
impugned judgments and decree are required to be interfered with
to this extent.
5. There is a fact finding of both courts below that the
defendant No.1 was minor at the time of execution of alleged
agreement dated 30.07.1988 and such fact finding is based on
document of mark-sheet of Secondary Board, therefore, as per
Section 11 of Contract Act, 1872 such an agreement is void and
on the basis of such agreement, plaintiff cannot claim any relief. It
may also be noticed that plaintiff never made any prayer in his
suit for refund of Rs.19,000/- nor any such prayer was made
before the first appellate court. Such a prayer which do not arise
out of pleadings, cannot be entertained at this stage of second
appeal. The judgments and decree are just and cannot be said to
suffer from any infirmity, irregularity or jurisdiction error.
(3 of 4) [CSA-151/2017]
6. The counsel for appellant could not point out any perversity
on the part of courts below in recording findings which are based
on appreciation/re-appreciation of evidence. In absence of only
perversity, or when findings are neither based on surmises and
conjunctures nor the same do not give rise to any substantial
questions of law. Substantial questions of law are sine-qua-non to
exercise the jurisdiction of high court under Section 100 of CPC.
7. In case of Damodar Lal Vs. Sohan Devi [(2016)3 SCC
78], the Apex Court held that even if finding of fact is wrong,
that by itself will not constitute a question of law. The wrong
finding should stem out of a complete misreading of evidence or it
should be based only on conjectures and surmises. The safest
approach on perversity is the classic approach on the reasonable
man's inference on facts.
8. In case of State of Rajasthan v. Shiv Dayal [(2019)8
SCC 637], the Hon'ble Supreme Court held that a concurrent
finding of the fact is binding, unless it is pointed out that it was
recorded de hors the pleadings or it was based on no evidence or
based on misreading of the material on records and documents.
The Hon'ble Court held as under:-
"16. When any concurrent finding of fact is
assailed in second appeal, the appellant is entitled
to point out that it is bad in law because it was
recorded de hors the pleadings or it was based on
no evidence or it was based on misreading of
material documentary evidence or it was recorded
against any provision of law and lastly, the
decision is one which no Judge acting judicially
could reasonably have reached. (see observation
made by learned Judge Vivian Bose, J. as His
Lordship then was a Judge of the Nagpur High
Court in Rajeshwar Vishwanath Mamidwar & Ors.
(4 of 4) [CSA-151/2017]
vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943
Nagpur 117 Para 43)."
8. In the case of C. Doddanrayana Reddy and Ors. Vs. C.
Jayarama Reddy and ors. [(2020)4 SCC 659], wherein the
Hon'ble Supreme Court has observed that where two courts have
reached a finding which is not based upon any misreading of
material documents, nor is recorded against provisions of law and
neither can it be said that any Judge acting judiciously and
reasonably could not have reached such a finding, then High Court
is not required to interfere with such fact findings while exercising
its jurisdiction under Section 100 CPC.
10. In view of concurrent findings of fact recorded by both courts
below, this court is not inclined to interfere with impugned
judgments, there is no force in the second appeal as no
substantial question of law arises in the matter, hence the same is
hereby dismissed. No Costs
11. Stay application and any other pending application, if any,
stand(s) disposed of.
(SUDESH BANSAL),J
TN/11
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