Court No. - 31
Case :- SECOND APPEAL No. - 813 of 2018
Appellant :- Smt. Sheela Devi Respondent :- Smt. Omwati Devi Counsel for Appellant :- Raj Singh Counsel for Respondent :- Ankit Agarval
Hon'ble Mrs. Vijay Lakshmi,J.
This Second Appeal has been filed by the defendant/ appellant against the judgment and order dated 17.5.2018 passed by the Additional District Judge, Court No. 8, Bulandshahar, in Civil Appeal No. 22 of 2016, Sm. Sheela Devi Vs. Sm. Omwati Devi, whereby the learned lower appellate court has dismissed the appeal filed by the defendant- appellant and has confirmed the judgment and order dated 7.1.2016 passed by the Additional Civil Judge (Senior Division), Court No. 3, Bulandshahar, whereby the suit filed by the plaintiff-respondent was decreed.
Heard learned counsel for the defendant- appellant and learned counsel for the plaintiff- respondent (caveator) on the point of admission. Perused the available record.
Some relevant facts in brief are that Smt. Omwati Devi (plaintiff-respondent) filed Original Suit No. 544 of 2008 for specific performance of contract. The trial court decreed the suit and directed the defendant- appellant to execute the sale deed in favour of the plaintiff- respondent after receiving Rs. 30,000/- as remaining amount of consideration. Defendant (appellant) was also directed to hand over possession of the disputed house to the plaintiff- respondent.
Being aggrieved the defendant- appellant filed Civil Appeal before the Additional District Judge, Bulandshahar, which was dismissed by the lower appellate court vide impugned judgment and order dated 17.5.2018 and the judgment and order dated 7.1.2016 passed by the trial court in the original suit, was confirmed.
Learned counsel for the defendant- appellant has challenged the legality and correctness of the findings recorded by both the courts below on the grounds that both the courts below have illegally relied upon payment of Rs. 87,000/- by the plaintiff- respondent prior to the execution of the agreement to sell dated 17.1.2006, merely on the ground that the said agreement to sell was a registered document, therefore, the contents of the agreement are reliable. Learned counsel for the appellant has further contended that the plaintiff- respondent was not ready and willing to perform her part of the contract but both the courts below have recorded perverse findings illegally, which are liable to be set aside.
Per contra, learned counsel for the plaintiff- respondent has vehemently contended that both the courts below, after a detailed discussion and appreciation of the evidence available on the record have recorded concurrent findings of fact about the readiness and willingness of the plaintiff- respondent to execute her part of the contract. Moreso, the agreement to sell being registered and its execution, being corroborated by the documentary as well as oral evidence adduced by the plaintiff, the trial court and the lower appellate court have rightly placed reliance on it and have decreed the suit. It is further contended that the lower appellate court has also placed reliance on various judgments of Hon'ble Apex Court while dismissing the appeal, hence there is no need to interfere in the concurrent findings of fact arrived at by both the courts below. It is further contended that no arguable substantial question of law is involved in this second appeal, therefore, it is liable to be dismissed at the admission stage itself.
Considered the rival submissions advanced by learned counsel for both the parties and perused the record.
On a perusal of the impugned judgments, it is clearly apparent that both the courts below have recorded concurrent finding relating to the factual aspects of the case. The issue involved in this case is purely factual in nature. No substantial question of law is involved in the present case. Although the appellant in the memo of Second Appeal has framed the following three proposed substantial questions of law:
1. Whether, mere registration of Deed is self proof ot its contents without proving them by evidence?
2. Whether, both the agreements dated 17.1.2006 and 17.1.2007 have been executed under misrepresentation, fraud and under influence?
3. Whether, the evidence led by the Defendant- Appellant has been illegally discarded, while the evidence led by plaintiff- respondent has been relied upon illegally?
However, keeping in view the well settled legal position, none of the above questions can be termed as arguable 'substantial questions of law'.
The term "substantial question of law" has been interpreted by Hon'ble Supreme Court in a catena of judgments.
In State Bank of India and others Vs. S.N. Goyal; (2008) 8 SCC 92 the Hon'ble Supreme Court has held as under :-
"Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law."
In Santosh Hazari Vs. Purushottam Tiwari, 2001(3) SCC 179 the Supreme Court considered what the phrase "substantial question of law" means as under:-
"The phrase is not defined in the Code. The word "substantial", as qualifying question of law, means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substances or consequence, or academic merely."
A Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, AIR 1951 Madras 969 considered this term and observed:
"when a question of law is fairly arguable, where there is room for difference of opinion or where the Court thought it necessary to deal with that question at some length and discuss an alternative view, then the question would be a substantial question of law. On the other hand, if the question was practically covered by decision of highest Court or if general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of case, it could not be a substantial question of law."
The above observations were affirmed and concurred by a Constitution Bench of Hon'ble Supreme Court in Sir Chunilal Mehta and Sons Ltd. Vs. The Century Spinning and Manufacturing Company Ltd. AIR 1962 SC 1314. Referring to above authorities, the Court in Santosh Hazari (supra) said:
"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
In Dharmabiri Rana Vs. Mramod Kumar Sharma (dead) through Legal Representatives and others, (2018)11 SCC 554 the Hon'ble Apex Court has observed as under:-
“12.In view of the above findings recorded by the First Appellate Court, the suit was rightly dismissed. The High Court has also rightly dismissed the Regular Second Appeal holding that it does not contain any substantial question of law. We do not find any substance in the submissions of the learned counsel for the appellant. With the result, the Civil Appeal is dismissed.”
Now reverting to the facts of the present case, it is clearly evident that both the courts below have recorded concurrent findings of fact with regard to the issues involved in the case. There does not appear any perversity or illegality in the findings recorded by both the courts below on the facts of the case.
The Hon'ble Apex Court in catena of judgments has laid down the law that the concurrent findings of fact recorded by two courts below should not be interfered by the High Court in Second Appeal, unless and until the findings are perverse.
In a recent case of Shivah Balram Haibatti Vs. Avinash Maruthi Pawar (2018)11 SCC 652 the Apex Court has held as under:-
“...... These findings being concurrent findings of fact were binding on the High Court and, therefore, the second appeal should have been dismissed in limine as involving no substantial question of law.”
In another recent case of Narendra and others Vs. Ajabrao S/o Narayan Katare (dead) through legal representatives, (2018) 11 SCC 564 the Hon'ble Apex Court held as under:-
“...interference in second appeal with finding of fact is permissible where such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or where that finding is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law permitting interference in Second Appeal.”
In one more recent case Dalip Singh Vs. Bhupinder Kaur, (2018) 3 SCC 677 the Hon'ble Apex Court has held that if there is no perversity in concurrent findings of fact, interference by the High Court in Second Appeal is not permissible.
In view of the above cited legal position and in absence of any arguable substantial question of law, this Second Appeal is liable to be dismissed at the admission stage itself and is accordingly dismissed.
Order Date :- 18.9.2018 Pcl