The Hon'ble Court dismissed a second appeal under Section 100 CPC. The appellants failed to show a substance question of law as their own witness admitted knowledge of an earlier agreement to sale, contrary to the trial court's decree favoring the respondents.
The second appeal was dismissed.
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Court No. - 53 Case :- SECOND APPEAL No. - 212 of 2017 Appellant :- Ashutosh Agnihotri And 3 Others Respondent :- Shyam Lal And 3 Others Counsel for Appellant :- Vashishtha Tiwari,Anupam Tripathi Counsel for Respondent :- Anand Mohan Pandey,Ram Raj Mishra
Hon'ble Vivek Agarwal,J.
Heard Sri Vashishtha Tiwari, learned counsel for the appellants and Sri Anand Mohan Pandey, learned counsel for the respondents.
This second appeal under Section 100 C.P.C. has been filed by the defendants being aggrieved by judgment and decree dated 03.01.2017 passed by the Court of learned Additional District Judge, Court No. 2, Bareilly whereby First Appeal No. 33 of 2015 filed by the present appellant has been dismissed affirming the judgment dated 28.02.2015 and decree dated 21.03.2015 passed by learned Additional Civil Judge (Senior Division), Bareilly in Original Suit No. 269 of 2002.
Brief facts leading to the present appeal are that on 31.01.2002, an agreement to sale was executed by defendant no. 1- Sri Ramesh Chandra in favour of the plaintiffs, he had accepted earnest money of Rs. 10,000/- (ten thousand rupees). After that on 07.05.2002, said Ramesh Chandra executed a sale deed in favour of the present appellants.
Plaintiff filed a suit for specific performance of the agreement and cancellation of the sale deed which was decreed by the learned Trial Court and the first appeal filed by the defendants against such judgment and decree has been dismissed by the learned First Appellate Court.
Learned counsel for the appellant submits that suit has been decreed on the admission of defendant no. 1- Ramesh Chandra that he had accepted Rs. 10,000/- (ten thousand rupees) from the plaintiff- Shyam Lal and had informed Ashutosh and others about such transaction and had also shown them the papers pertaining to transaction dated 31.01.2002. It is submitted that this witness who was examined by the defendants before the learned Trial Court as DW2 further admitted in his crossexamination that he had actually entered into an agreement to sale on 31.01.2002 on the advise of the present appellants and though they were not present at the time of execution of such agreement to sale, but when such agreement was shown to them, they had said that let a sale deed be executed in their
favour and they will take care of other things and accordingly, he had executed a sale deed.
Learned counsel submits that there is no other independent evidence to the effect that the present appellants were having knowledge of said agreement to sale as was executed by the defendant no. 1- Ramesh Chandra in favour of the plaintiffs on 31.01.2002 or that they had seen such documents and yet suit has been decreed.
Learned counsel for the respondent supports the judgment and decree.
After hearing arguments and going through the record, it is evident that Ramesh Chandra was examined by the defendants in their favour. Their own witness had admitted the factum of execution of agreement to sale dated 31.01.2002. It is his admission that he had shown the documents pertaining to this agreement to the contesting defendants who are appellants before this Court. He has also admitted that when he had shown the agreement to sale to the defendant nos. 2 to 7 who are appellants before this Court, then they had asked him to carry out and execute the sale deed in their favour and they shall take care of other transactions.
In view of such facts and also evidence of DW3- Poshaki who has not been able to substantiate lack of knowledge of agreement dated 31.01.2002 through his deposition, learned Trial Court has passed a decree of specific performance and cancellation of sale deed which was executed by the defendant no. 1 in favour of the present appellants. In fact, other defendant i.e., DW2- Sumer Singh also could not prove their case that they were not having knowledge of the agreement which was executed by Ramesh Chandra in favour of Shyam Lal.
In view of such facts, the impugned judgment and decree passed by the learned Civil Court and the learned First Appellate Court cannot be faulted with as the onus was on the appellants to have prove that they had entered into a transaction of purchase from Ramesh Chandra without having any knowledge of earlier transaction so to protect their transaction in terms of the provisions contained in Specific Relief Act. Therefore, this appeal does not give rise to any substantial question of law.
Thus, appeal fails and is dismissed.
Order Date :- 25.2.2020 Vikram/-
2 issues framed by the court
Whether the appeal raises any substantial question of law regarding the specific performance of an agreement to sell and cancellation of a subsequent sale deed.
Whether the appellants discharged their onus to prove they entered into a transaction without knowledge of an earlier agreement.
2 provisions across 2 enactments
Ashutosh Agnihotri and others
Shyam Lal and others
Vivek Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
