1. This appeal has been preferred against the judgment dated 18.11.2002 passed by Additional District Judge, Court No. 8, Allahabad in Civil Appeal No. 124/1994 (Mohd. Ahmad v. Karamat Hussain & others).
2. Original Suit No. 993/1985 (Mohd. Aslam v. Karamat Hussain & others) was filed by sole plaintiff Mohd. Ahmad with averment that he is owner in possession of disputed property of plot no. 234/1 of village Maheva Patti, Uparhar. Defendants have no right, title or interest in this property. They are expressing that plaintiff had done any agreement to sell in the year 1980 in favour of defendant no.-1 for sale of this property and they are trying to interfere in possession of plaintiff over it, therefore the plaintiff had filed suit against defendants from restraining them from interfering in possession of plaintiff's property.
3. In their written-statement filed in O.S. no. 993/1985, defendants pleaded that plaintiff had executed a registered agreement to sell dated 3.10.1980 for sale of his property and received Rs. 20,000/- as advance consideration, but when he has not executed sale-deed in terms of said contract for sale then defendants had given him notice for specific performance of contract. Plaintiffs had been ready and willing to perform their part of contract dated 3,.10.1980, but defendant had not executed sale-deed and filed suit on incorrect facts. Then plaintiff's suit is liable to be dismissed.
4. In another Suit no. 491/1985 (Smt. Salaha Begum v. Mohd Ahmad) was filed by three plaintiffs (who were defendants no. 1, 2 and 3 of O.S. no. 993/1985) for specific performance of contract for sale dated 3.10.1980/15.10.1980. In this plaint their pleading was same as their written-statement case in O.S. no. 993/1985. They pleaded that defendant Mohd. Ahmad had received advance consideration and executed registered agreement to sell for his property, but had not executed sale-deed, then after serving him notice for specific performance, they had filed suit for specific performance. They are and had been ready and willing to perform their part of contract.
5. In written statement of O.S. No 491/1985, the defendants Mohd. Ahmad had filed written statement denying any execution of registered agreement to sell. He further pleaded that defendant is ailing for some time and if plaintiffs of O.S. no. 491/1985 had get executed any deed from him or got signed any document then it is not binding on him. Plaintiff suit is liable to be dismissed.
6. Since the disputed property in both the original suits no. 993/1985 and 491/1985 was same and contesting parties were also the same, therefore both these suits were consolidated. Trial Court had framed total 9 issues (4 issues for O.S. no. 993/1985 and, 5 issues for O.S. no. 491/1985) and accepted evidences of the parties then after affording opportunity of hearing to the parties, the court of Vth Additional Munsiff, Allahabad had dismissed the O.S. no. 993/1985, Mohd Ahmad v. Smt. Salaha Begum & others. By the same judgment, the trial court had decreed the O.S. no. 491/1985, Sma. Salaha Begum v. Mohd Ahmad instituted for relief of specific performance of contract and directed the defendant of this suit Mohd. Ahmad (present appellant) to execute registered sale-deed of disputed property in favour of plaintiff of O.S. no. 491/1985 and also gave direction that if due to any reason cause of action of sale-deed becomes not possible then plaintiffs of this suit will be entitled to receive back the advance consideration of Rs. 20,000/- with compound interest at the rate of 17%.
7. Plaintiff of the Original Suit no. 993/1985 and defendants of Original Suit no. 491/1985, Mohd. Ahmad had filed two Civil Appeals against the judgment dated 25.3.1994 passed by trial Court in aforesaid suits. Civil Appeal No. 123/1994 (Mohd. Ahmad v. Karamat Hussain & others) was filed against judgment of dismissal of OS No. 993/1985. Civil Appeal no. 124/1994 (Mohd. Ahmad v. Karamat Hussain & others) was preferred against the decree of O.S. no. 491/1985. These two appeals relating to same property and same dispute between same parties were consolidated and heard together. After affording opportunity of hearing to parties, Additional District Judge, Court No.-8, Allahabad had decided both the appeals by common judgment dated 18.11.2002. By this judgment, lower appellate court had partly allowed the Civil Appeal no. 123/1994 (preferred against judgment of O.S. No. 993/1985) for the relief of permanent injunction and directed the defendant-respondents of this case not to interfere in possession of appellant Mohd. Ahmad until the respondents take possession of disputed property after getting sale-deed of it executed in their favour. By this judgment lower appellate court had dismissed the Civil Appeal No. 124/1994.
8. Present Second Appeal has been preferred by Mohd. Ahmad, appellant in first appeal (defendant in O.S. no. 491/1985) against the judgment dated 18.11.2002 passed by first appellate court only in Civil Appeal no. 124/1994 and the judgment of the trial court passed in O.S. no. 491/1985.
9. At the time of admission of the present second appeal, by order dated 24.02.2003 of this court, following substantial questions of law framed in the memorandum of second appeal were adopted for decision of this appeal:
"(1) Whether suit for specific relief could be decreed without framing of issue and proving readiness and willingness on part of plaintiff to perform their part of contract throughout since the date of agreement.
(2) Whether finding of court below on the point of payment of sale consideration is perverse in view of non considerations of oral deposition of plaintiff's witness Mohd. Naseem and Defendant's oral evidence."
10. On first question the learned counsel for the appellant contended that in suit for the specific performance of contract the plaintiff must prove that he had been ready and willing to perform his part of contract, but matter was decided by the lower courts without framing any issue on this specific point, therefore the judgment of two lower courts are erroneous and are liable to be set aside.
11. Refuting these contentions learned counsel for the respondent submitted that this point was admitted and not denied or disputed, so there was no need to frame issue on non disputed points. He further contended that no prejudice was caused to defendant-appellant due to non framing of issue on this point.
12. In plaint there has been specific averment that plaintiff is and has been ready and willing to perform his part of contract. This fact was not contested in written-statement. In fact this plaint averment was not specifically denied in the written-statement. Such non denial of plaint averment amounts to admission of plaint case.
13. Rules 3, 4, and 5 of Order VIII CPC are as under:
"3. Denial to be specific-- It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
4. Evasive denial-- Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance.
5. Specific denial--(1)] Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :
Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission."
14. In present matter neither the plaint case on readiness and willingness of plaintiff to perform his part of contract for sale in question was denied nor in additional pleas of written-statement any such pea was taken. Thus evasive denial in form of denying all paragraph of plaint, including the admitted facts also, is not the specific denial. Such evasive non admission of specific plaint case amounts to admission. It appears that for this reason when nine issues were being framed then at that time trial court had opted not to frame issue on admitted point, which was not specifically denied, nor specifically required the respondent to prove this fact, although it was proved from evidences. The relevant provisions of Rule 1 of Order XIV CPC are as under:
"1. Framing of issues-- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence."
15. In present case plaintiff-respondent had specifically in paragraph-5 of the plaint of O.S. no. 491/1985 that plaintiff "had been and are still ready and willing to get the sale-deed executed and are also ready and willing to perform all those acts which the have to perform." In absence of any specific denial in present case, the trial court was not required to frame specific issue on this point.
16. It is also pertinent to mention that in the memorandum of first appeal filed against the judgment of trial court, the appellants had no where had taken the ground that such issue was not framed. It appears that this plea was raised for the first time in present second appeal.
17. The provisions of Order 41 Rule 2 CPC reads as under:-
"2. Grounds which may be taken in appeal.- The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal, but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule:
Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground."
18. Since this Rule-2 of Order-41 CPC makes it clear that those grounds cannot be taken during appeal by appellants as a matter of right which were not mentioned in memo of appeal, except with permission of the Court, This was not the argument of learned counsel for the appellants that any such ground was raised by appellants' side during first appeal. Since he had not raised any ground regarding non-framing of such issue, therefore such ground cannot be raised directly in second appeal.
19. There was no confusion or misunderstanding between the parties as to what plaint averment was, what was the real disputed point and what are the pleading of the parties. Plaintiff has adduced evidences regarding his plaint case. On these points the cross-examination was made by defendant's side. Then defendant had also led evidences for proving his case mentioned in his written-statement, but no evidence was given denying the point of readiness and willingness of plaintiff to perform his part of contract for sale in question. After this, the judgment was passed, and no prejudice was caused to any party in understanding these points. The trial court's judgment was based on the finding that plaintiff side had properly proved its case in O.S. no 491/1985. After this judgment, the defendant had preferred first Civil Appeal no. 124/1994 before the lower appellate court. The memorandum of appeal does not contain averment that issue on relevant point of readiness and willingness of plaintiff to perform his part of contract for sale in question was not framed. Since this point of non-framing of aforesaid issue was not raised under Order-41, Rule-2 C.P.C. by the defendant-appellants; therefore they are estopped from raising this plea before lower appellate court. Likewise, they cannot raise such issue directly in second appeal to the prejudice of plaintiff-respondents.
20. Apart from it, as held earlier, there was no confusion or misunderstanding between the parties at the time of trial of original suit or in first appellate court, as to on what points they are contesting. The plaintiff had claimed rhar he had been ready and willing to perform his part of contract, which the defendant-appellant was not denied. From evidences the case of plaintiff was proved. Therefore impugned judgment was passed. In fact no prejudice was caused to defendant-appellant because of non-framing of issues on point of alleged license. In Swamy Atma Nanda v. Sri Rama Krishna Tapovanam, (2005) 10 SCC 51, the Apex Court had held as under:-
"39. If the parties went to the trial knowing fully well the real issues involved and adduced evidence in such a case, without establishing prejudice, it would not be open to a party to raise a question of non-framing of particular issue."
21. The issues are framed only for the purpose of regulating the proceedings in the suit. It is well settled that omission to frame an issue of fact is not fatal for the suit when the parties went to trial knowing fully well their rival case and led evidence not only in support of his case but also to challenge the case of the adversary. As such, on the point raised and to be decided is not fatal and the finding is not liable to be set aside only on the ground that formal issue has not been framed.
22. Appellant has failed to produce any evidence to show that any prejudice was caused to him on account of non framing of the issues. In fact, in this matter no prejudice has actually been caused to defendant-appellants from non-framing of alleged issue, as held above, therefore the argument of alleged prejudice is unacceptable and is hereby rejected. The judgments of trial court as well as the first appellate court are based on proper appreciation of pleadings, in which on the basis of available evidence the plaint case of O.S. no. 491/1985, including the point of readiness and willingness of plaintiff to perform his part of contract for sale in question, was found proved. The judgment on facts is found correct without any infirmity. Therefore in view of the above, the first substantial question of law is decided in favour of respondents and against the appellants.
23. Learned counsel for the appellant contended that trial court had not properly appreciated the evidences adduced by the parties, especially evidence adduced on behalf of appellant in trial court and judgments were passed on the evidences adduced only by the respondents side (plaintiff of O.S. no. 491/1985), therefore, the judgment of trial court as well as judgment of appellate court is erroneous. He further submitted that payment of consideration is not proved from the evidences adduced in lower court, but both the court had erroneously gave otherwise finding which is factually incorrect.
24. These arguments were refuted by learned counsel for the respondent, who contended that trial court as well as the first appellate court had meticulously appreciated the evidences of both the parties, giving special attention of evidences adduced by appellant Mohd. Ahmad as PW-1, and also on other evidence of respondent's side, and then passed the judgment. He contended that finding of facts were given by the two lower courts independently, but these are concurrent findings of facts based on proper appreciation of evidences which are not erroneous. Therefore those findings should not be disturbed in second appeal.
25. A perusal of original record reveals that in lower court, the appellant (plaintiff of O.S. no. 993/1985, and defendant of O.S. no. 491/1985) had out rightly denied the execution any agreement deed in favour of appellant side (defendant of O.S. no. 993/1985 and plaintiff of O.S. no. 491/1985); during cross-examination he did not stick to his pleading of outright denial and simply stated that he does not remember as to whether he had executed any agreement for sale of disputed property in favour of Smt. Salaha Begum, Shamima Begum and Alya Begum (plaintiffs of O.S. no. 491/1985) or not. The registered deed of agreement to sell in question was paper no. '9-Ka' of trial court record. When that deed was shown to PW-1 Mohd. Ahmad (present appellant) during cross-examination and he was asked that he had signed and put thumb impression on it before the Registrar, then he had not denied this fact. Thus not only in pleading but also during the oral examination the denial of case of respondents (relating to plaint of O.S. no. 491/1985 and w.s. of O.S. no. 993/1985) by PW-1 Mohd Ahmad (appellant) was vague and uncertain, which leads to conclusion that he had been suppressing true facts. On the other hand, both the lower courts had independently appreciated every evidence adduced during the trial including the evidence of defendants' witnesses and also the expert evidence produced by defendant side. After proper appreciation of evidences of both sides, trial court as well as the lower appellate court had given separate and independent, but concurrent findings of fact and reached to conclusion that registered deed of agreement of sale in question is proved, and the appellant had received advance consideration and executed registered deed of agreement to sell of disputed property in favour of respondents (appellants of O.S. no. 491/1985). Meticulous scrutiny of findings of lower courts in light of those oral and documentary evidences makes it clear that findings of trial court as well as the first appellate court regarding registered agreement to sale and then for its specific performance is correct and acceptable on facts and of law. Both the courts have given correct findings that it is proved that appellants had received advance consideration and wullingly executed registered deed of agreement for sale of disputed property to the respondents.
26. The only question to be determined in this matter at present is as to whether the appellant had executed registered deed of contract for sale of his disputed property in favour of respondent after receiving advance consideration, or not. This was not a question of law but was a question of fact that could be decided on the basis of adduced evidences, as has been done by the lower courts. There is no infirmity or perversity in findings of lower courts that may require interference in it by re-appreciation of evidence. Therefore, in view of aforesaid discussions, the second substantial question of law as above, is decided in negative, against the appellant and in favour of respondents.
25. On examination of the reasonings recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned and are based upon proper appreciation of the entire evidences on record. No perversity or infirmity is found in the concurrent findings of fact recorded by the lower courts regarding O.S. no. 491/1985 and first Civil Appeal no. 124/1994, to warrant interference in this second appeal. None of the contentions of the learned counsel for the appellant-defendant can be sustained.
26. In view of the above, this appeal is dismissed.
Order Date :- 31.05.2016 SKS