Heard Sri Kripa Shankar Singh, learned counsel for the appellants and Sri Arvind Srivastava III, learned counsel for the respondents.
This is defendant's second appeal against the judgment and decree dated 22.12.1990 passed by Additional District Judge, E.C. Act, Mainpuri in Civil Appeal No. 135 of 1989 in Civil Appeal No. allowing the Civil Appeal of the plaintiff and setting aside the judgment and decree dated 12.05.1989 passed by Civil Judge, Mainpuri in Original Suit No. 56 of 1985.
Plaintiff instituted the suit praying for a decree of specific performance of contract of sale dated 11.07.1984. Alternative relief of refund of advance sale consideration of Rs. 2000/- was also prayed.
Plaintiff's case is that she entered into an agreement to sell with defendant no. 1, Devi Dayal, on 11.07.1984 which was registered on 31.07.1984; that the land agreed to be sold was situated in Abadi, Mohalla Bada Bazar, Kasba, Bhugaon, District Judge, Mainpuri; that the total sale consideration was Rs. 14,000/- out of which Rs. 2000/- was paid as advance; that Rs. 12,000/- was to be paid at the time of registration of the sale deed; that the plaintiff had always been ready and willing to get the sale deed executed in her favour but the defendant no. 1 did not agreed to the same; that the plaintiff sent a notice dated 27.03.1985 by registered post asking the defendant no. 1 to appear before the Sub-Registrar, Bhugaon on 01.04.1985 for registration of the sale deed but he did not turn up though she remained present in the Sub-Registrar Office; that she sent another notice dated 02.04.1985 but again the defendant no. 1 did not appeared and instead he executed a sale deed in favour of defendant no. 2, Moinuddin, for an amount of Rs. 10,000/- on 17.04.1985; that defendant no. 2 has the knowledge of agreement to sale dated 11.07.1984 executed by defendant no. 1 in her favour but he got the sale deed executed and is trying to take possession of the land by force and hence the suit praying for injunction.
Defendant no. 1, Devi Dayal, filed his written statement denying any agreement to sell with the plaintiff. He admitted receipt of Rs. 2000/- from one Nawab Singh for his treatment and further stated that Nawab Singh got the disputed agreement to sale executed in favour of plaintiff in the garb of document of security for loan; that the defendant no. 1, denied receipt of any notice for execution of sale deed from plaintiff and admitted execution of sale deed in favour of defendant no. 2; that he further stated that the disputed land is joint property of the defendant no. 1 alongwith his brother, Anokhe Lal and therefore he has no right to sell any specific part of the same without partition; that the partition of the property however took place prior to execution of sale deed in favour of defendant no. 2; that plaintiff had never been ready and willing to get the sale deed executed and her suit is barred by Section 23 of the Contract Act and Section 16 and 20 of the Specific Relief Act.
Defendant no. 1, Devi Dayal, after filing his written statement died and his legal heirs were substituted but they never appeared before the trial court to contest the suit nor they filed any evidence. The suit was proceeded and decided ex-parte against them.
Defendant no. 2, Moinuddin, filed his written statement and asserted that he has got the sale deed dated 17.04.1985 executed for value after paying the sale consideration and is in possession over the same as owner; that he denied any knowledge of the agreement of sale executed by defendant no. 1, in favour of plaintiff and prayed for benefit of Section 41 of the Transfer of Property Act; that he denied that defendant no. 1 ever executed any agreement to sell of his joint property; that plaintiff never had the capacity to purchase the land in dispute for Rs. 14,000/-, and the disputed agreement to sell is forged and fabricated; that the suit of the plaintiff is barred by Section 23 of the Indian Contract Act and Section 34 and 41 of Specific Relief Act and non-compliance of Form 47 and 88, Appendix A C.P.C. and prayed that the suit may be dismissed.
Learned trial court found the agreement to sell in favour of plaintiff executed by defendant no. 1 to be genuine document but on account of this fact that the plaintiff had not sought for cancellation of the sale deed dated 17.04.1985, executed by defendant no. 1 in favour of defendant no. 2, the trial court decreed the suit for alternative relief of return of the advance sale consideration alongwith interest to the plaintiff by the legal heirs of defendant no. 1.
The plaintiff preferred a Civil Appeal against the judgment and decree of the trial court before the lower appellate court on the ground that she is entitled to relief of specific performance of contract but the trial court has wrongly denied the same. The reasoning of the trial court that since she has not sought the cancellation of sale deed dated 17.04.1985, executed by defendant no. 1 in favour of defendant no. 2, therefore, suit cannot be decreed for main relief is incorrect. The relief for cancellation of sale deed dated 17.04.1985 was already incorporated in the plaint by way of amendment and therefore the finding of the courts below is incorrect. The defendant purchaser has full knowledge of agreement to sell executed by defendant no.1 in favour of plaintiff and therefore the decree of the courts below is unjustified.
The lower appellate court found that the suit property was divided between defendant no. 1 and his brother much before execution of agreement to sell dated 11.07.1984 in favour of the plaintiff. The finding of the trial court that the agreement to sell executed by defendant no. 1 in favour of plaintiff was genuine was affirmed by the lower appellate court and it further found that the sale deed dated 17.04.1985 in favour of defendant no. 2 was illegal and meant to defeat the agreement executed by defendant no. 1 in favour of plaintiff. The defendant no. 2 was not found to be bona fide purchaser for value without notice and therefore he was held not entitled to any benefit for Section 41 of the Transfer of Property Act. Court further found that the requirements of Form 47 and 48, Appendix-A, C.P.C. are compiled in the case and therefore decreed the suit of the plaintiff against the legal heirs of defendant no. 1 and it was declared that the sale deed dated 17.04.1985 executed by defendant no. 1 in favour of defendant no. 2 is void and illegal and does not confers any right on the defendant no. 2. Aggrieved by the judgment of the lower appellate court the second appeal has been preferred by the defendant no. 2 and it was admitted on 30.01.1991 on the following substantial question of law:-
(1) whether the appeal by the plaintiff whose suit was decreed for the alternative relief by the trial court was maintainable?
The counsel for the appellant has addressed the court on the question that the amendment in the plaint regarding challenge to the sale deed executed by defendant no. 1 in favour of defendant no. 2 was not correct and such an amendment could not have been allowed and case laws have been relied upon in support of the contention.
Counsel for the plaintiff-respondent has opposed the argument and his argued that Order 41, Rule 33, C.P.C. gives ample power to the first appellate court to pass any decree and to make any order which ought to be passed or made, as the case may require, even in the absence of any appeal or objection. He has submitted that the appeal against the decree of the trial court decreeing the suit for alternative relief is not barred under any law and therefore where the main relief of specific performance and contract of sale was denied by the trial court, the appellate court can always decree the suit for main relief in case it comes to the conclusion that the decree of the trial court was not justified under the facts and circumstances and the legal position of the case. He has argued that the lower appellate court has not committed any error in decreeing the suit of the plaintiff for the main relief.
After hearing the rival contention it is clear that the suit of the plaintiff was wrongly decreed by the trial court for alternative relief of return of sale consideration. Once the trial court found that the agreement to sell executed in her favour by the defendant no. 1 was a genuine document, only on the ground that she has not prayed for cancellation of the sale deed dated 17.04.1985 executed by defendant no. 1 in favour of defendant no. 2, cannot be a ground for denying the main relief to the plaintiff. The finding of the lower appellate court is based on proper appreciation of the material on record and the relevant law. The Apex Court in the case has held that this Court cannot interfere even in the wrong finding of fact recorded by the lower appellate court unless it is shown to be perverse. The Apex Court in the case of Deity Pattabhiramashwamy, Appellant Vs. S. Hanymayya and others, Respondents, AIR 1959 SC 57. Paragraph no. 13 of the aforesaid judgment provides as follows, "The finding on the title was arrived at by the learned District Judge not on the basis of any document of title but on a consideration of relevant documentary and oral evidence adduced by the parties. The learned Judge, therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding. The provision of Section 100 are clear and unambiguous. As early as 1891, the Judicial Committee in Durga Chowdhrani v. Jawahir Singh 17 IA 122 stated thus:
"There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be."
The principle laid down in this decision has been followed in innumerable cases by the Privy Council as well as by different High Courts in this country. Again the Judicial Committee in Midnapur Zamindari Co. v. Uma Charan 29 CWN 131 further elucidated the principle by pointing out:
"If the question to be decided in one of fact it does not involve an Issue of law merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be construed."
Nor does that fact that the finding of the first appellate court is based upon some documentary evidence make it any the less a finding of fact (See Wali Mohammad v. Mohammad Baksh, 11 Lahore 199). But, notwithstanding such clear and authoritative pronouncements on the scope of the provisions of section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of second appeals as if they were first appeal. The introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under Section 100 of the Civil Procedure Code. We have, therefore, no alternative but to set aside the decree of the High Court on the simple ground that the learned Judge of the High Court had no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence. In the result, the decree of the High Court is set aside and the appeal is allowed with costs throughout."
In view of the above consideration the second appeal has no merit and does not involve any question of law and is accordingly dismissed with costs.
Order Date: 27.07.2018 Rohit