Second Appeal dismissed. Court upheld lower courts' decree for specific performance of an agreement to sale, holding the defendant failed to prove the agreement was forged. Rejected application for additional evidence as case was properly adjudicated on existing record.
Second Appeal dismissed; judgment and decree of lower courts affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Neutral Citation No. - 2024:AHC-LKO:48899
Reserved/AFR
Court No. - 6
Case :- SECOND APPEAL No. - 224 of 1986
Appellant :- Chandra Bhan Respondent :- Aditya Prasad Counsel for Appellant :- H.S. Sahai,Avadhesh Kumar,Om Prakash Pandey Counsel for Respondent :- R.S. Pandey,Aditya Kumar Tiwari,Chandra Bhooshan,Suyash Dwivedi,Vaishali Mishra
Hon'ble Rajnish Kumar,J.
“(1) Whether the burden to prove that the transaction with an illiterate and infirm village lady was made, fairly, consciously and with independent advice of the lady or not was on the defendantlady or on the plaintiff-respondents and as to whether without
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proof of the same, the courts below were justified in decreeing the suit?"
(2) Whether the lower appellate court was justified in refusing the prayer of the lady to get herself examined in court and still drawing inferences for not examining herself."
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of the plaintiff. She never talked with plaintiff to give the possession to him. The plaintiff was not in possession over the land in question. She never made her signatures or thumb impression over any plain and blank paper. The plaintiff never raised any objection for execution of sale deed in favour of defendants no.2 to 5.
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suit for specific performance was filed on misconceived and baseless grounds on the basis of the forged agreement. The learned Trial court as well as the appellate court, without considering the pleadings of the parties, material and evidence on record decreed the suit and dismissed the appeal. He further submitted that the application for additional evidence filed before the First Appellate court had wrongly and illegally been rejected by means of the order dated 12.08.1983 by the First Appellate Court. In case the application would have been allowed and the thumb impression verified, the matter could have been settled. He further submitted that the defendant no.1 Smt. Ram Sanehi, the executor of agreement to sale died during pendency of the First Appeal, therefore the direction issued by the trial court has become non executable after her death and it cannot be executed. The agreement to sale could not be proved in accordance with Section 45 of the Evidence Act 1872. The evidence of the P.W.2 has wrongly and illegally been considered by the courts below.
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dispute and after receiving Rs. 6000/-, she had handed over the possession and the sale deed was to be executed after getting Bhumidhari rights because the land was sirdari land at that time. The plaintiff-respondent approached the defendant no.1 with Rs.2000/- for execution of sale deed, then she told that she has executed the sale deed of land in dispute in favour of defendants no. 2 to 5 i.e. the present appellants, therefore the plaintiffrespondent had to file the suit. The plaintiff-respondent proved the agreement by cogent evidence and he was always ready and willing to comply his part but the defendant no.1 has not complied. The defendant no.1 had not appeared in evidence to prove that the agreement to sale was not executed by her and her thumb impressions are not on the agreement, whereas one attesting witness of the agreement to sale and writer of agreement were produced to prove the agreement to sale and nothing could be extracted by the defendant-appellants from them, which may create any doubt about the veracity of their evidence. She could also have applied for expert opinion to prove that her signatures are not on agreement but it was not done. In view of Section 101 of the Evidence Act, 1872 burden of proof that the agreement to sale was not executed by Smt. Ram Sanehi was on her as she was alleging that she has not signed or put thumb impression on it because it was proved that the agreement to sale was executed by her. He further submitted that the thumb impression on agreement to sale is clear but no verification of thumb impression was made on the written statement and as per findings recorded by the courts below the thumb impression on the ‘Vakalatnama’ was also blurred, so that it may not be verified. He further submitted that the application under Order 41 Rule 27 of Civil Procedure Code has rightly and in accordance with law been rejected by the First Appellate Court. There is no illegality or infirmity in it. He further submitted that the objection filed under Section 9 A of the Consolidation of Holdings Act, 1953 by the Consolidation Officer was stayed in appeal, which is still
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operative. The sale deed was executed without seeking permission from the consolidation authorities, therefore the suit itself was barred under Section 5(c) of the U.P. Consolidation of Holdings Act, 1953 and it was liable to be dismissed on this ground alone. Lastly learned counsel for the respondents submitted that the concurrent findings of facts recorded by the courts below cannot be interfered by this court in Second Appeal as there is no illegality, infirmity or perversity in the same as the findings have been recorded on the basis of the pleadings, material and evidence on record.
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Consolidation Officer after payment of the remaining amount of Rs.2000/-. In pursuance thereof after receiving Rs.6000/- the possession was handed over to the plaintiff-respondents. In the 1st week of August 1976 the plaintiff-respondent went to Late Smt. Ram Sanehi with Rs.2000/- for payment and execution of sale deed. Then the defendant no.1 told that she has already sold the land in dispute to the defendants no.2 to 5 i.e. the appellants. It was further alleged that the plaintiff-respondent was and is always ready and willing to pay the remaining Rs.2000/- and get the sale deed executed. The written statement was filed by the defendant no.1; Late Smt. Ram Sanehi denying the averments made in the plaint and stating that she has not made any signatures or put her thumb impression either on the agreement or on any plain paper. The plea was also taken that even if the signature or thumb impression is tried to be proved, even then no agreement has taken place between the plaintiff-respondent and the defendant no.1, therefore the same is totally forged and the plaintiffrespondent would not get any benefit out of it. The written statement was filed on 27.08.1979. A separate written statement was filed by the defendants no.2 to 5 i.e. the appellants denying the averments made in the plaint and stating that after deposit of 20 times land revenue the defendant no.1 has acquired the Bhumidhari rights and she has executed a sale deed in their favour on 24.06.1976 for a consideration of Rs.9000/- and has also handed over the possession. They have also denied that any agreement to sale was made by the defendant no.1 in favour of plaintiff-respondent.
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thumb impression on the agreement. Thereafter witnesses Hans Raj and Shiv Prasad had put their thumb impression/signature. Hans Raj, who had appeared as P.W.2 had proved the agreement to sale. Raj Bahadur the writer of the agreement to sale had appeared as P.W.3 and proved that it is the same agreement to sale, which was written by him. The writer P.W.3 has also stated that he had put his signature on the agreement. Thus the agreement was proved by the plaintiff-respondent by adducing cogent evidence.
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question of stating that she has not signed or put thumb impression would not have been mentioned, when the photocopy was also on record. The learned trial court also found that the thumb impression of the defendant no.1 on the agreement to sale is clear, whereas on the written statement and the Vakalatnama it is blurred and it has also not been identified by any counsel. Learned Trial court also recorded a finding that the defendant no.1 was the best witness to prove that the agreement to sale was not executed by her but she had not appeared in the witness box to record her evidence on oath. Thus the thumb impression on the agreement to sale is of the defendant no.1. The Privy Council, in the case of Robins Versus National Trust Company Limited and others (Supra), has held that onus is always on the person who attacks the will.
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regard to the aforesaid issues on the basis of evidence and material on record.
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cannot be said that it has not been produced with due diligence. It has also been recorded that the counsel for the defendantappellants admitted that it cannot be a ground for remand. 19. Order 41 Rule 27 of Civil Procedure Code (here-in-after referred as CPC) provides for production of additional evidence in appellate court in three contingencies. First of which is that the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. The second is that the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. The third is that the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The first two contingencies are not attracted at all in this case. So far as the third contingency is concerned, the appellate court can pass such order if it requires that it is necessary to enable it to pronounce the judgment or for any other substantial cause but this power can not be exercised to fill up the lacuna, if any. In this case since the agreement to sale was proved by adducing the cogent evidence before the trial court, therefore this court is of the view that there was no occasion for the first appellate court to pass any such order. In view of above this court does not find any illegality or error in rejection of the application by the learned first appellate court. However it does not preclude the court from drawing adverse inference to strengthen the view taken by it on the basis of pleadings, evidence and material on record. Thus the second substantial question of law is decided accordingly.
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of judgment and order dated 23.09.2021 passed in Review Petition No. 264 of 2003; Chandra Bhan Major and 4 others (Second Appeal No. 224 of 1986) Versus Aditya Prakash, which was filed for review of the judgment and order dated 14.08.2003 passed by this court in this Second Appeal, by means of which the appeal was dismissed without formulating the substantial questions of law after admission of appeal. The application has been filed for taking on record the certified copy of Registered Sale deed dated 24.05.1976, a copy of the judgment and order dated 04.05.2006 passed by the Consolidation Officer, Bikapur, Faizabad, photocopies of Khatauni and Khasra of the plots in dispute and report of finger print expert sought by the defendantappellants from Mr. D. K. Patel at Ahmadabad. So far as the certified copy of the sale deed dated 24.05.1976 is concerned it could have been filed earlier. The order passed by the Consolidation Officer dated 04.05.2006 does not decide the title and it has been passed on account of pendency of this appeal and as argued it has been stayed in appeal and stay is still operating. Khasra and Khatauni of the land in question could have been filed by the defendants-appellants earlier also. Even otherwise the order dated 04.05.2006 passed by the Consolidation Officer has no material bearing on the present case as the same has been passed in consolidation proceedings only on the ground that the judgment and decree passed by the trial court has not been executed because the plaintiff-respondents have failed to show the payment of the remaining amount of Rs.2000/- within the time granted by the trial court and execution of sale deed thereafter because the appeal is pending. So far as the report of the finger print expert obtained by the defendant-appellants is concerned, the same has been given on the basis of the zerox copies and it is only provisional and subject to verification of original documents. Even otherwise it cannot be said that the thumb impression on the sale deed made in favour of the defendant-appellants are the admitted thumb impression of Smt. Ram Sanehi; the defendant
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no.1 because the plaintiff-respondent has only averred in the plaint that the sale deed was executed by her as informed by her, when the plaintiff-respondent approached her with the remaining amount of Rs.2000/- for execution of sale deed. This court is of the view that the application moved under Order 41 Rule 27 CPC before this court is misconceived and baseless and liable to be rejected only.
“ 29. Under Order 41 Rule 27 CPC, production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are:
( I ) where the trial court had refused to admit the evidence though it ought to have been admitted;
( II ) the evidence was not available to the party despite exercise of due diligence; and
( III ) the appellate court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.
An application for production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, the court can receive additional documents.
30. In Union of India v. Ibrahim Uddin [ Union of India v. Ibrahim Uddin , (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362] , this Court held as under : (SCC pp. 167-68 & 170, paras 36-37, 40 & 47)
“ 36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in
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appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy [ K. Venkataramiah v. A. Seetharama Reddy , AIR 1963 SC 1526] , Municipal Corpn., Greater Bombay v. Lala Pancham [ Municipal Corpn., Greater Bombay v. Lala Pancham , AIR 1965 SC 1008] , Soonda Ram v. Rameshwarlal [ Soonda Ram v. Rameshwarlal , (1975) 3 SCC 698] and Syed Abdul Khader v. Rami Reddy [ Syed Abdul Khader v. Rami Reddy , (1979) 2 SCC 601] .)
37. The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali & Co. [ Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali & Co. , (1978) 2 SCC 493] .)
40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a “substantial cause” within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.”
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Consolidation of Holdings Act, 1953 read with Section 45(A) (2) it is illegal and non effective. The issue no.4, as to whether the agreement to sale is illegal and forged has been decided in negative and the issue no.5 that the suit is liable to be decreed. The appellate court also considering the pleadings of the parties, evidence and the grounds raised in the appeal held that the agreement was executed by the defendant no.1 in favour of the Plaintiff-respondents in respect of land in question and also upheld the findings recorded by the trial court in accordance with law. This court does not find any illegality or infirmity in the findings recorded by the courts below.
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document has to be proved by primary evidence except where court finds that the document is to be proved by leading the secondary evidence.
“ 11 . In this case, there are concurrent findings on facts by both the courts below. 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.
12 . 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."
13 . 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."
14. 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.
15 . In Gautam Sarup v. Leela Jetly and Ors. [(2008) 7 SCC 85], the Apex Court held that a party is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.
16 . 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
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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."
(Rajnish Kumar,J.)
Order Date :- 18.07.2024 Banswar
Digitally signed by :- RAM NARESH BANSWAR High Court of Judicature at Allahabad, Lucknow Bench
3 issues framed by the court
Whether the burden to prove that the transaction with an illiterate and infirm village lady was made fairly, consciously and with independent advice was on the defendant or the plaintiff?
Whether the lower appellate court was justified in refusing the prayer to examine the defendant-in-appeal in court and drawing adverse inferences for such refusal?
Whether the concurrent findings of fact by the trial and first appellate courts regarding the execution of the agreement to sale and possession can be interfered with in a second appeal?
Colour shows how this judgement treated each authority
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2020 (38) LCD 1455
Daulat Ram and others Versus Sodha and othersReferred¶76
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A.C. and Privy Council 515
Narendra Bahadur Singh and others Versus Ram Manorath Singh and othersReferred¶67
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(2019) 37 LCD 2346
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4 provisions across 3 enactments
Chandra Bhan
Aditya Prakash
Rajnish Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
