Rajasthan High Court

Smt Tarakanwar vs Ranglal Gehlot And Ors on 14 October, 2022

Bench: Sudesh Bansal

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

            S.B. Civil Second Appeal No. 30/2013

Smt. Tarakanwar W/o Late Shri Jasraj, R/O Quarter No. 32,
Meershah Ali Colony, Ajmer Legal Heir Of The Deceased Jasraj
                                                     ----Appellant/Defendant
                                   Versus
1.     Ranglal Gehlot S/o Shri Chotu, R/o Lohakhan Police Line,
       Ajmer
                                                      ----Respondent/Plaintiff

2. Bhanu Pratap S/o Late Shri Jasraj, R/o Quarter No. 32, Meershah Ali Colony, Ajmer Legal Heir Of The Deceased Jasraj

3. Vijay S/o Late Shri Jasraj R/o Quarter No. 32, Meershah Ali Colony, Ajmer Legal Heir Of The Deceased Jasraj

4. Kumari Rekha D/o Late Shri Jasraj, R/o Quarter No. 32, Meershah Ali Colony, Ajmer Legal Heir Of The Deceased Jasraj

----Respondents/Defendants

For Appellant(s) : Mr. Digvijay Mantri For Respondent(s) :

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

14/10/2022

1. Appellant-defendant has preferred the instant second appeal

under Section 100 of the Code of Civil Procedure, assailing the

judgment and decree dated 04.09.2012, passed in Civil First

Appeal No.109/2008 by the Court of Additional District Judge

No.2, Ajmer, affirming the judgment and decree dated 29.07.2008

passed in Civil Suit No.103/1992 by the Court Additional Civil

Judge (Senior Division) No.2, Ajmer, whereby and whereunder a

civil suit for specific performance of agreement and permanent

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injunction filed by respondent-plaintiff has been decreed against

appellant-defendant.

2. Heard learned counsel for appellant and perused the

impugned judgments.

3. The relevant facts in nutshell as culled out from the record

are that, respondent-plaintiff alleged that defendant agreed to

sale plot in question measuring 244.44 Sq. yards situated out in

the land of Khasra No.877, Ramnagar Ajmer, against total sale

consideration of Rs.30,000/- and after receiving Rs.20,000/-,

executed an agreement to sale dated 31.05.1989 with condition

that defendant would be entitled to get cancelled the agreement,

after making payment of Rs.20,000/- within a period of two years

else, would execute a sale deed in favour of plaintiff after

receiving balance sale consideration of Rs.10,000/-. The limitation

of two years was further extended to six months. Since defendant

did not get cancel the agreement to sale, therefore, plaintiff

offered the balance sale consideration and asked to execute the

sale deed and thereafter, served one legal notice, and instituted

the present civil suit on 13.04.1992.

4. Defendant, in his written statement admitted the execution

of agreement dated 31.05.1989, but denied this agreement as

agreement to sale. Defendant took a defence that he has repaid

Rs.20,000/-, but receipt has not been issued.

5. Learned trial court after framing issues and recording

evidence of both parties held that the execution of agreement to

sale dated 31.05.1989 is proved and defendant has not repaid the

amount of Rs.20,000/- rather has took a false defence. Plaintiff

was held to be ready and willing to perform his part of the

agreement and to pay the balance sale amount. As per terms of

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agreement, it was observed that defendant is bound to execute

the sale deed and delivered possession of the plot to plaintiff.

Accordingly, issues No.1, 2 & 3 were decided in favour of plaintiff

and issues No.4 and 5 were decided against defendant and

accordingly, the suit was decreed vide judgment dated

29.07.2008.

6. Defendant challenged the judgment dated 29.07.2008, by

way of filing first appeal. The first appellate court reheard and

reconsidered the entire pleadings and evidence of both parties and

by a reasoned and well discussed judgment, has concurred with

findings of trial court and affirmed the judgment of trial court by

dismissing the first appeal vide judgment dated 04.09.2012.

7. Against concurrent findings of fact and the decree for specific

performance passed in favour of respondent-plaintiff, appellant-

defendant has filed the instant second appeal. The second appeal

is pending for admission since about ten years and there is no

interim stay order.

8. Learned counsel for appellant has argued that two courts

below have committed perversity in holding the execution of the

agreement to sale as valid and holding the plaintiff as ready and

willing to perform his part of agreement. Findings in respect of

issues No.1, 2 and 3 are perverse.

9. As far as issue No.1 in respect of execution of the agreement

dated 31.05.1989 is concerned, the same is question of fact and

on appreciation of evidence, both courts have decided the issue in

favour of plaintiff.

10. As far as issue No.2 is concerned, it is not in dispute that

defendant received Rs.20,000/- from the plaintiff and executed

the document. The defence of defendant that he has refunded the

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amount of Rs.20,000/-, is not substantiated by any evidence,

hence, it has rightly been decided against the defendant by courts

below.

11. As far as issue No.3, relating to readiness and willingness of

plaintiff is concerned, the Hon'ble Supreme Court in case of

Harjeet Singh Vs. Amrik Singh [(2005) 12 SCC 270] has held

that question:"(I) Whether the plaintiffs were always ready and

willing to perform their part of the contract and are entitled to a

decree for specific performance?" is not a question of law at all

what to say substantial question of law.

The ratio of law propounded by Hon'ble Supreme Court in

case of Harjeet Singh (Supra), has again been reiterated by the

Hon'ble Supreme Court in case of Jogendra Ram Vs. Phullan

Mian [(2011) 15 SCC 247].

12. In case of Ramathal Vs. Maruthathal [(2018) 18 SCC

303], where the trial court decreed the suit for specific

performance and which was affirmed in first appeal but the High

Court while exercising its jurisdiction under Section 100 CPC,

reversed the decree, then the Hon'ble Supreme Court propounded

as under:

"15. When the intention of the legislature is so clear the courts have no power to enlarge the scope of Section 100 for whatsoever reasons. Justice has to be administered in accordance with law. In the case on hand the High Court has exceeded its jurisdiction by reversing the well considered judgment of the courts below which is based on cogent reasoning. The learned judge ought not to have entered the arena of reappreciation of the evidence, hence the whole exercise done by the high court is beyond the scope and jurisdiction conferred under section 100 of CPC."

13. The substantial questions of law as suggested by counsel for

appellant are essentially questions of fact, which require re-

appreciation of entire evidence. Findings recorded by both courts

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below are based on appreciation/re-appreciation of evidence,

counsel for appellant has not been able to show any perversity in

the fact findings nor able to show that the same are based on

misreading or non-reading of evidence or based on no evidence.

14. The Hon'ble Supreme Court in case of State of Rajasthan

v. Shiv Dayal [(2019) 8 SCC 637], has held that a concurrent

finding of the fact is binding, unless it is pointed out that it was

recorded dehors the pleadings or it was based on no evidence or

based on misreading of the material on records and documents.

The Court held as under:

"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 dehors 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. vs. Dashrath Narayan Chilwelkar & Ors.,[AIR 1943 Nag 117 para 43]"

15. The Hon'ble Supreme Court in case C. Doddanarayan

Reddy vs. C. Jayarama Reddy [(2020) 4 SCC 659], has

observed that where two courts have returned 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

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with such fact findings while exercising its jurisdiction under

Section 100 CPC.

16. In the present case, it also appears that defendant has not

acted bonafidely and fairly. In totality of facts and circumstances,