Second Appeal by a plaintiff against dismissal of a suit for specific performance of an unregistered agreement for sale barred by laches and lack of evidence, dismissed as the trial court correctly found the agreement unproven.
The appeal was dismissed as it lacked merit and no substantial question of law arose.
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Court No. - 26
Case :- SECOND APPEAL No. - 1064 of 2018
Appellant :- Shambhu Nath Respondent :- Jeet Narain Vishwakarma And Another Counsel for Appellant :- Awadhesh Kumar Mishra,Yogesh Mishra Counsel for Respondent :- Sharda Vishwakarma
Hon'ble Ajit Kumar,J.
This appeal is directed against the judgment and decree dated 22nd March, 2004 passed by the Additional Civil Judge (Senior Division), Mirzapur in O.S. No. 63 of 1983 confirming the appeal by the judgment and decree dated 12.07.2018 and 19.07.2018 passed by the Additional District Judge, Court No. 3, Mirzapur in Civil Appeal No. 16 of 2011.
According to the plaintiff-respondent, the agreement for sale was executed by one Beni Madhav Tiwari on 26th January, 1975 which is admitted to be unregistered agreement for sale. It is alleged that while agreement for sale was subsisting instead of executing sale deed in terms of agreement of sale, Beni Madhav Tiwari executed the sale-deed in favour of the defendant-respondent. During the pendency of the suit, however, Beni Madhav Tiwari died and was not survived by any natural and legal representative.
The trial court framed issues with regard to the validity of agreement for sale and has come to conclude by giving a finding of fact to the effect that the plaintiff has not been able to lead any evidence in support of the agreement for sale. The plaint allegations with regard to the alleged agreement for sale did not come to be proved. The trial Court has recorded that even the marginal witness to the alleged agreement for sale was not produced before the court below and, therefore, in the absence of any evidence, cogent and convincing enough in support of plaint allegations, the suit was liable to be dismissed and was accordingly dismissed. The lower appellate court has also given concurrent finding on crucial issue of validity of agreement for sale.
On the question of finding of fact with regard to the validity of agreement for sale, I am of the opinion that trial court is the best place where the evidence should have been led by the plaintiffappellant. Having not done so, it does not lie in his mouth now to suggest that findings are perverse or vitiated for want of non consideration of any evidence. It is equally not a case of
misreading of any evidence in the face of the fact that there is virtually no evidence led by the plaintiff in support of his case.
The contention advanced by the learned counsel for the plaintiff-appellant is that merely on the basis of the pendency of suit, the court below should not have dismissed the suit and should not have observed that after merely 43 years, there is no point in exercising the discretion. I am of the view that it is discretionary relief and if the court refuses to exercise its discretion, learned counsel for the appellant cannot suggest that it was mandatory for the court below to decree the suit for specific performance.
In view of the above, I do not see any good ground to interfere in the appeal. No substantial question of law arises for consideration under Section 100 of Code of Civil Procedure, 1908.
The appeal lacks merit and is, accordingly, dismissed.
Order Date :- 23.10.2018 Atmesh
3 issues framed by the court
Whether the lower appellate court erred in dismissing the suit for specific performance due to lack of evidence regarding a unregistered agreement for sale.
Whether the barring of specific performance after a long delay is a matter of law or discretion.
Whether a substantial question of law arose under Section 100 CPC warranting interference.
1 provisions across 1 enactments
Shambhu Nath
Jeet Narain Vishwakarma
Another
Ajit Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
