In this second appeal for specific performance, the High Court of Chhattisgarh dismissed the appeal. The court found no perversity in the first appellate court's decision to dismiss the suit for proven lack of an agreement to sale, holding that no substantial question of law arose.
Second appeal dismissed; no order as to cost.
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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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.62 of 2003
Butangu, son of Shri Negi Satnami (since dead) through his legal representatives :-
1f. Sukh Bai, D/o Butangu, aged about 35 years, R/o Gram Pihira, Tahsil Baramkela, District Raigarh (CG).
---- Appellants
Versus
Maidni Singh Thakur, son of Tikaram Thakur (dead) through his legal heirs:-
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years, Occupation house wife, resident of Kududand Chandani Chowk Bilaspur, District Bilaspur.
The proposed respondents No.7b & 7c being minor through the natural guardian their elder brother Ramkrishna Singh, S/o late Krishna Singh, aged about 19 years and all are resident of Rajapara, Sarangarh, Police Station Sarangarh, District Raigarh (CG).
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For Appellants For Respondents
: Shri Rakesh Pandey, Advocate : Ms. Pritha Ghoshal, Advocate
Hon'ble Shri Justice Sanjay K. Agrawal Order On Board
08/09/2016
(1) Heard on admission.
(2) This is plaintiff's-Butangu second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'the CPC') challenging the judgment and decree dated 29.11.2002 passed by IInd Additional District Judge, Raigarh in Civil Appeal No.37A/1999, reversing the judgment and decree dated 30.10.1999 passed by Civil Judge, Class-1, Raigarh in Civil Suit No.8-A/1997, whereby the first appellate Court has reversed the finding of the trial Court and thereby, dismissed the suit.
(3) Plaintiff-Butangu filed a suit for specific performance of contract though the suit land has been mortgaged by defendant No.1-Maidni Singh Thakur in his favour on 25.04.1988 (0.462 hectares) and handed over for cultivation. On 11.03.1993, the agreement to sale has been executed by defendant No.1 in his favour, he is not ready and willing to perform his part of contract, therefore, no specific relief be granted in his favour.
(4) The trial Court decreed the suit holding that the suit land
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was mortgaged by defendant No.1 in favour of the plaintiff on 25.04.1988 and there is an agreement to sale on 11.03.1993 and therefore, plaintiff is entitled for decree for specific performance of the contract.
(5) On appeal being preferred by the defendant No.1-Maidni Singh Thakur before the first appellate Court, the said Court, by its impugned order dated 29th November, 2002 allowed the appeal and set-aside the judgment and decree of the trial Court holding that the suit land was mortgaged by defendant No.1 in favour of the plaintiff, but agreement to sale has not been proved and as such, dismissed the suit of the plaintiff by allowing the appeal.
(6) Feeling aggrieved of the judgment and decree of the first appellate Court, this second appeal under Section 100 of the Code of Civil Procedure (for short 'the CPC') has been preferred by the appellant/plaintiff.
(7) Shri Rakesh Pandey, learned counsel appearing for the appellant/plaintiff, would submit that the first appellate Court has allowed the appeal of the respondents/defendants by recording a perverse finding and contrary to the records, therefore, it gives rise to the substantial question of law for determination of this second appeal.
(8) After careful perusal of the plaint it would show that the
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suit property has already been mortgaged by defendant No.1Maidni Singh Thakur in favour of the plaintiff on 25.04.1988. The further case of the plaintiff is that agreement to sale was executed on 11.2.1993(95), but no agreement to sale has been filed and proved. No permission has been sought and granted by the trial Court for leading secondary evidence. The plea of readiness and willingness are not clear. The first appellate Court has accepted the plea of oral agreement to sale and reversed the same.
(9) I have heard learned counsel for the parties and perused the records of both the Courts below including judgment and decree impugned.
(10) The fact remains that the suit land was mortgaged on the date of institution of the suit and the first appellate Court has held that the suit land was mortgaged by defendant No.1 in favour of the plaintiff, but agreement to sale has not been proved. I do not find any perversity or illegality in the said finding recorded by the first appellate Court and no substantial question of law is involved in this appeal.
(11) Consequently, second appeal deserves to be and is accordingly dismissed. No order as to cost.
Sd/- (Sanjay K. Agrawal) JUDGE
L/-
1 issue framed by the court
Whether the findings of the first appellate court regarding lack of proof of agreement to sale were perverse or illegal justifying interference in the second appeal under Section 100 CPC.
1 provisions across 1 enactments
Butangu, son of Shri Negi Satnami and others
Maidni Singh Thakur, son of Tikaram Thakur and others
Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
