Telangana High Court
Mohammed Khaled Ali vs A. Hanumanth Reddy on 28 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.527 of 2023
JUDGMENT:
Challenging the validity and legality of the judgment and decree,
dated 03.07.2023, passed in A.S.No.53 of 2022 (Old AS.No.16 of 2021)
on the file of the Court of Principal District Judge, Sangareddy,
confirming the judgment and decree dated 12.12.2019 passed by the
Senior Civil Judge, Medak in O.S.No.24 of 2006, the present Second
Appeal is filed.
2. The appellant is defendant No.1, respondent No.1 is the plaintiff
and respondent Nos.2 to 4 are defendant Nos.3 to 5 in the suit. For
convenience, hereinafter the parties are referred to as they are arrayed in
the suit.
3. The facts of the case in brief, which led to filing of the present
Second Appeal, are that the plaintiff agreed to purchase the suit schedule
property for a sale consideration of Rs.4,10,000/- from defendant No.1,
who is the absolute owner and possessor thereof, and accordingly, on
27.9.2005, an agreement of sale was executed, as per which, the plaintiff
paid a sum of Rs.20,000/- to defendant No.1 and the same was
acknowledged under receipt.
LNA, J
3.1. It was further averred that inspite of requesting defendant No.1
several times to execute the sale deed and even after receipt of legal
notice which was got issued by the plaintiff in that regard, he failed to
execute the same and gave a reply notice with all false and untenable
allegations. Hence, the suit for specific performance of agreement of
sale.
4. Defendant No.1 filed written statement inter alia denying the
allegations made in the plaint as regards his offer to sell the suit
schedule property to the plaintiff, the discussions between him and the
plaintiff, about fixation of sale consideration and also receiving a part
thereof from the plaintiff. He further averred that the Agreement of sale
produced by the plaintiff is a forged and fabricated document.
4.1. Defendant No.1 also averred that the suit schedule property
was inherited by himself, his brothers and mother after death of his
father. Since he was the eldest son, the Revenue authorities have
mutated the suit schedule property in his name and therefore, he is not
the absolute owner and possessor of the suit schedule property.
Accordingly, he prayed the Court to dismiss the suit.
5. On the above pleadings, the trial Court framed the following
issues for trial:-
"1. Whether the defendant executed the suit agreement of
sale on 27.09.2005? If so ?
LNA, J
2. Whether the plaintiff is entitled for specific performance
of Contract on the suit agreement of sale as prayed for?
3. To what relief?"
6. On behalf of plaintiff, PWs.1 to 5 were examined and Exs.A1 to
A6 were marked. On behalf of the defendants, DWs.1 to 3 were
examined and Exs.B1 to B-30 were marked. Ex.X-1-Expert Opinion
was also marked.
7. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, decreed the suit, vide
judgment dated 12.12.2019, by observing as hereunder:-
"The evidence of PW1 coupled with the evidence of PW2
to PW4 who are the scribe and attestors of Ex.A1 and
the evidence of PW5 who is Assistant Director (FSL)
and also the documentary evidence produced by him, it
is very clear that defendant No.1 has executed the suit
agreement of sale on 27-09-2005 in favour of plaintiff
(PW1) after receiving a sum of Rs. 20,000/- as part
payment of sale consideration. Thus, the plaintiff (PW1)
approached this Court with clean hands and hence he is
entitled for Specific Performance."
8. The first Appellate Court, being the final fact-finding Court, re-
appreciated the entire evidence and the material available on record and
vide its judgment dated 03.07.2023 observed that since the plaintiff
established that Ex.A-1-Agreement of sale is genuine and the property
LNA, J
belongs exclusively to the defendant and the said property was subject
matter of Ex.A-1 and the plaintiff was willing to perform his part of the
agreement, the decree of specific performance of agreement of sale
granted by the trial Court was confirmed. It is further observed that the
respondent/plaintiff disputed the balance sale consideration on passing
of decree.
9. Heard Sri S.Bhooma Goud, learned counsel for the appellant.
Perused the record.
10. A perusal of the record discloses that both the Courts below
concurrently held that the oral and documentary evidence adduced by
both the parties goes to show that plaintiff proved the execution of ExA-
1-Agreement of sale in his favour by the defendant and he was also
ready and willing to perform his part of contract and thus, decreed the
suit directing defendant No.1 to execute registered sale deed in favour of
the plaintiff in respect of the suit schedule property after receiving the
balance sale consideration from the plaintiff.
11. Learned counsel for appellant argued that the trial Court
decreed 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.
LNA, J
12. 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.
13. 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.
14. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that the
High Court sitting in Second Appeal cannot examine the 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.
15. 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
(2007) 1 Supreme Court Cases 546
LNA, J
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.
16. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
17. Pending miscellaneous applications, if any, shall stand closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date: 28.02.2024
dr
