Telangana High Court
Mohd. Iliyasuddin vs Peddamul Anjaiah Died Per Lrs. And 5 ... on 1 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.34 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 28.07.2022 passed by the Principal District and
Sessions Judge, Sangareddy, in A.S.No.79 of 2018, confirming the
judgment and decree dated 27.04.2018 passed by the Senior Civil
Judge, Zaheerabad, in O.S.No.64 of 2011.
2. For convenience, the parties are referred to as they are
arrayed before the trial Court.
3. Brief facts leading to filing of the present Second Appeal
are that the appellant/plaintiff filed the suit vide O.S.No.64 of
2011 for specific performance of contract. It is contended that the
respondent No.1/defendant No.1 was owner and possessor of
the suit schedule property i.e., the land admeasuring Ac.0.34
guntas situated in Survey No.13/E/1 situated at Kothur-K
Village, Koheer Mandal, Medak District. It is also contended that
the defendant No.1 approached the plaintiff and offered to sell
the suit schedule property and the plaintiff agreed to purchase
the same for a valid consideration of Rs.2,45,000/- per acre.
LNA, J
Accordingly, the plaintiff and the defendant No.1 entered into an
agreement of sale dated 19.09.2008 and the plaintiff paid an
amount of Rs.60,000/- to the defendant No.1 towards earnest
money. The defendant No.1 agreed to have surveyed the land
and after survey, the plaintiff has to pay the remaining amount.
On 19.09.2008, the plaintiff paid further amount of Rs.10,000/- to
the defendant No.1 on his request and a receipt was also issued to
that effect. Thereafter, the plaintiff approached the defendant
No.1 several times for executing the sale deed, but the defendant
No.1 evaded the same. Therefore, the plaintiff issued legal notice
dated 01.12.2011 to the defendant No.1 to execute a registered
sale deed, but there was no response from the defendant No.1.
Hence, the suit.
4. The defendant No.1 filed written statement admitting that
he is the owner of the suit schedule property and that he entered
into an agreement of sale with the plaintiff in respect of the suit
schedule property. It is stated that the defendant No.1 was
planning to sell the suit schedule land for his daughter's marriage
and one Balraj brought the plaintiff to him for purchasing the
LNA, J
land. Accordingly, the agreement of sale was entered and
advance was also paid by the plaintiff. As per the agreement of
sale, the balance sale consideration was to be paid on or before
19.12.2008 i.e., within three months from the date of agreement.
Though the defendant No.1 requested the plaintiff to pay the
balance sale consideration, the plaintiff failed to pay the same. It
is further stated that there was no condition that the defendant
No.1 should get the land surveyed.
5. During the pendency of the suit, the defendant No.1 died
and his legal representatives were brought on record.
6. On behalf of the plaintiff, P.Ws.1 and 2 were examined and
Exs.A1 to A.7 were marked. On behalf of the defendants, though
defendant No.3 was examined as D.W.1, no documents were
marked.
7. The trial Court, after considering the entire material
available on record, vide judgment and decree dated 27.04.2018
held that the plaintiff ought to have paid the balance of sale
consideration to the defendant No.1 by 19.12.2008 and got the
sale deed executed; there was no proof that the plaintiff brought
LNA, J
it to the notice of the defendant No.1 that he came forward for
execution of registered sale deed in his favour after receiving the
balance sale consideration and that the plaintiff failed to prove
his readiness or willingness to pay the balance sale consideration,
and therefore, he is not entitled to the relief of specific
performance.
8. The trial Court held that party seeking specific
performance of a contract has to come to consideration to the first
defendant by 19.12.2008 and get the sale deed executed. There is
no proof that the plaintiff brought it to the notice of the first
defendant that he has to come forward to execute the registered
sale deed in his favour after receiving the balance sale
consideration. The legal notice issued by the plaintiff is long after
the due date mentioned in Ex.A2. The specific performance being
equitable relief, the plaintiff, who has come with unclean hands
to the Court, is not entitled to the relief of specific performance
and accordingly, dismissed the suit.
9. Aggrieved by the judgment and decree dated 27.04.2018
passed by the trial Court, the plaintiff filed appeal vide A.S.No.79
LNA, J
of 2018. The first Appellate Court, being the final Court of facts,
re-appreciated the entire evidence and material on record, and
dismissed the appeal confirming the judgment and decree passed
by the trial Court vide judgment and decree dated 28.07.2022. The
first Appellate Court observed that appellant has paid the
advance sale consideration and the date is stipulated in the
agreement for registration, however the appellant has not made
any effort to pay the balance sale consideration to the first
respondent on 19.12.2007. No evidence was adduced by the
plaintiff to show that as on 19.12.2008, he was ready to pay the
balance sale consideration and had offered to pay the same to the
first respondent and the first respondent refused to receive the
same. Hence, the present Second Appeal.
10. Heard Mr. M.D. Ajmal Ahmed, the learned counsel for the
appellant and Mr. L. Venkateswar Rao, the learned counsel for
the respondents and perused the record.
11. A perusal of the record discloses that both the Courts
below concurrently held that the plaintiff failed to prove his
readiness or willingness to pay the balance sale consideration.
LNA, J
12. Learned counsel for appellant vehemently argued that the
trial Court dismissed the suit without proper appreciation of the
evidence and the first Appellate Court also committed an error in
confirming the judgment and decree passed by the trial Court.
13. However, learned counsel for appellant failed to raise any
substantial question of law to be decided by this Court in this
Second Appeal. In fact, all the grounds raised in this appeal are
factual in nature and do not qualify as the substantial questions
of law in terms of Section 100 C.P.C.
14. It is well settled principle by a catena of decisions of the
Apex Court that in the Second Appeal filed under Section 100
C.P.C., this Court cannot interfere with the concurrent findings
on facts arrived at by the Courts below, which are based on
proper appreciation of the oral and documentary evidence on
record.
15. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that
the High Court sitting in Second Appeal cannot examine the
(2007) 1 Supreme Court Cases 546
LNA, J
evidence once again as a third trial Court and the power under
Section 100 C.P.C. is very limited and it can be exercised only
where a substantial question of law is raised and fell for
consideration.
16. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the first
Appellate Court, this Court finds no ground or reason warranting
interference with the said concurrent findings, under Section 100
C.P.C. Moreover, the grounds raised by the appellant are factual
in nature and no question of law much less a substantial question
of law arises for consideration in this Second Appeal.
17. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
Pending miscellaneous applications, if any, shall stand
closed.
__________________________________
LAXMI NARAYANA ALISHETTY, J
Date: 01.02.2024
va
LNA, J
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
Date: 01.02.2024
va
