Dharam Dass deleted through Lr'S and Others Vs Inder Singh

The present appeal arises out of the judgment and decree, as passed by the learned Presiding Officer, Fast Track Court, Mandi, H.P. in C. A. No. 76/98, 199/2004, dated 16.03.2005, whereby the appeal preferred by the present appellants/defendants has been ordered to be dismissed and the judgment and decree, as passed by the

¶14

1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes

¶15

2

¶16

learned Civil Judge, 1^st Class, Court No.1, Mandi, dated 22.09.1998 has been affirmed whereby the suit filed by the plaintiff/respondent for specific performance of agreement of sale, dated 31.03.1989 and for injunction was decreed.

¶17

2 Facts of the case are that the

¶18

plaintiffs/respondents filed a suit for specific performance of agreement and injunction before the learned Civil Judge Court No.1 Mandi on 19.06.1992. It was averred in the plaint that an agreement dated 31.03.1989 was duly executed and signed between the plaintiff and defendant No.1 in the presence of attesting witnesses namely Lal Man and Puran Chand whereby defendant No.1 sold her ¼ share to the extent 1-14-14 bighas, out of total area of the land measuring 6-18-5 bighas comprised under Khewat No. 524 min, Khatauni No. 900, Khasra No.2331 and 2388, Kitas 2, situated at Village Kumi Illaqua Balh, Tehsil Sadar, District Mandi, in favour of the plaintiff for a total sale consideration of Rs.15,547.50/- ( Fifteen Thousand Five Hundred FortySeven and Fifty Paise) i.e. at the rate of Rs. 9000 per bigha. It was stated that in part performance of agreement, dated 31.03.1989, the plaintiff paid a sum of Rs.10,000/- to defendant No.1 as an earnest money and in pursuance to

¶19

3

¶20

that, defendant No.1 handed over the joint possession of the land to the plaintiff and thereafter, the plaintiff is in joint possession of the suit land till the institution of the suit.

¶21

3 It was further averred that the payment of balance sale consideration of Rs.5,547.50/- was agreed to be paid to defendant No.1 at the time of execution and registration of the sale deed in favour of the plaintiff. It was agreed by defendant No.1 that as per terms and conditions of the agreement whenever the plaintiff deems fit, he may get the sale deed executed and registered in his favour and in case defendant No.1 resiles from her commitment, in that event the plaintiff can initiate appropriate legal proceedings against defendant No.1 for the redressal of his grievances. Time was not essence of the contract, but as per the plaint it was to be got executed and registered in the office of Sub Registrar, Sadar, Mandi, in the year 1992 and the plaintiff orally informed defendant No.1 about this fact in the presence of the witnesses. In the month of March, 1992, the plaintiff requested defendant No.1 to accompany him to Mandi for getting registration of sale deed done in his favour and to receive the balance sale consideration amount before the Sub Registrar, Sadar Mandi, but she assured and

¶22

4

¶23

promised to do so within fortnight. It was submitted that defendant No.2 was having prior knowledge of the agreement to sell entered between the plaintiff and defendant No.1, therefore, the defendants conspired and connived with each other and entered into a sale purchase transaction qua the suit land through a registered sale deed No. 235 on 7.3.1992 for a total sale consideration of Rs.12,000/-. Therefore, defendant No.2 is not a bona fide purchaser of the suit land and he should be directed to reconvey title of the suit land in favour of the plaintiff by executing and registering the sale deed jointly with defendant No.1.

¶24

4 Under such circumstances, the plaintiff filed a suit for specific performance of the agreement dated 31.3.1989 against the defendant and it was prayed that the defendants be directed to execute the sale deed in favour of the plaintiff. Further, an injunction was sought restraining the defendants from causing any sort of interference with the peaceful possession of the plaintiff over the suit land.

¶25

5 The defendants filed joint written statement to the plaint as preferred by the plaintiff. Preliminary objections with respect to the limitation and maintainability were raised by the defendants. On merits, it was averred that it is wrong

¶26

5

¶27

that defendant No.1 sold her 1/4^th share of the suit land on 21.3.1989 in favour of the plaintiff for a total sale consideration of Rs.15,547.50 ( Fifteen Thousand Five Hundred Forty-Seven and Fifty Paise) . Though it was stated that there was a proposal to sell the suit land in favour of the plaintiff, but he failed to pay money to defendant No.1, therefore, the said proposal was never acted upon. It was denied that the plaintiff in part performance of the agreement to sell had paid a sum of Rs.10,000/- to defendant No.1. Further, it was also denied that in pursuance to the agreement, the possession of the suit land was handed over to the plaintiff. It was averred that though some talks were going on for the sale of the land between the plaintiff and defendant No.1, and some papers were also executed , however, no money was paid by the plaintiff to defendant No.1 and he tried to defraud defendant No.1 who is simpleton villager and an illiterate lady. It was averred that defendant No.1 flatly refused to sell the land to the plaintiff nor she ever parted with the possession of the suit land and she was coming in possession upto the date of transfer of the land in favour of defendant No.2. The very execution of the agreement in favour of the plaintiff was denied in toto.

¶28

6

¶29

Further, it was stated that defendant No.2 was not having any knowledge about the agreement to sell between the plaintiff and defendant No.1 and that defendant No.2 is a bona fide purchaser and he purchased the suit land by executing a registered sale deed bearing No. 235 dated 7.3.1992 in his favour. It was stated that defendant No.2 was not having any knowledge of any agreement to sell between the plaintiff and defendant No.1. The very execution of the agreement to sell was denied and all the averments as made in the plaint were specifically refuted.

¶30

6 The plaintiff filed replication to the written statement filed by the defendants and all the averments as made in the plaint were reiterated. The learned trial court on 24.4.1993 framed the following issues:-

¶31

Whether the defendant No.1 had sold suit land to the plaintiff through an agreement dated 31-3-89, as alleged?0PP

¶32

Whether the plaintiff had made part payment of the consideration amount, if so to what extent? OPP 3. If issues no.1 and 2 are proved, whether the plaintiff is entitled for the specific performance of the contract dated 31-3-89? OPP

¶33

Whether the sale deed in favour of the defendant No.2 was performed with prior notice of the agreement between the plaintiff and defendant No.1? OPP

¶34

7

¶35

Whether the suit is within limitation? OPD

¶36

Whether the suit is not maintainable in the present form, as alleged? OPD

¶37

Relief.

¶38

7 The learned trial court directed the parties to adduce evidence in support of their contentions to corroborate their respective case and ultimately, the learned trial court vide its judgment and decree dated 22.9.1998 decreed the suit of the plaintiff/respondent, thereby ordering to execute the sale deed in favour of the plaintiff and the plaintiff was directed to perform his part of the agreement by paying the remaining amount due to defendant No.1, who was directed to get the document registered in favour of the plaintiff. Further, the defendants were restrained from causing any interference with the peaceful possession of the plaintiff over the suit land in any manner whatsoever.

¶39

8 The defendants feeling dissatisfied by the judgment and decree, dated 22.9.1998, as passed by the learned trial court preferred an appeal before the first Appellate Court on 11.11.1998 and vide judgment and decree dated 16.3.2005, the learned first Appellate Court dismissed the appeal preferred by the present appellants.

¶40

8

¶41

9 Now, aggrieved by the aforesaid judgments and decrees, the appellants have preferred the present regular second appeal, which was admitted on 17.11.2006 by this Court on the following substantial question of law:-

¶42

What is the effect of two courts below in not touching and returning any finding on the point whether the plaintiff/respondent had always been ready and willing to perform his part of the contract?

¶43

10 It is contended by Mr. Karan Singh Kanwar, learned counsel for the appellants that the judgments and decrees passed by the learned courts below are perverse and against the well settled principles of law. He submitted that the suit of the plaintiff could not have been decreed on the strength of oral as well as documentary evidence placed on record, therefore, no relief could have been granted to the plaintiff in the present case. He has submitted that the judgments and decrees passed by the learned courts below are outcome of perversity and mis-appreciation and misconstruction of the evidence led by the respective parties. 11 On the other hand, Mr. Shrawan Dogra, learned Senior Advocate, duly assisted by Mr. Tejasvi Dogra, Advocate, for the respondents, has defended the judgments and decrees as passed by the learned courts below and he

¶44

9

¶45

has submitted that there are concurrent findings of fact by the courts below and they do not require any interference that too in regular second appeal while exercising powers under Section 100 CPC. He has also submitted that the impugned judgments and decrees are legal, valid and sustainable in the eyes of law and the same do not require any interference from this Court.

¶46

12 I have heard the learned counsel for the parties and have also perused the records of the case in detail. 13 The very case as set up by the plaintiff before the learned trial court is that an agreement to sell was executed between the parties on 31.3.1989. It has been contended that the agreement to sell was entered between the plaintiff and defendant No.1 Gangi Devi on 31.1.1989, whereby she sold her ¼th share to the extent 1-14-11 bighas out of total area of land measuring 6-18-5 bighas of the suit land for a total sale consideration of RS. 15,547.50 ( Fifteen Thousand Five Hundred Forty-Seven and Fifty Paise) i.e. at the rate of Rs.9000/- per bigha. It has been submitted that plaintiff had paid a sum of Rs.10,000/- to defendant No.1 as an earnest money in part performance of the said agreement . It is the case of the plaintiff that though plaintiff was willing to

¶47

10

¶48

perform his part of the agreement, however in an illegal manner defendant No.1 sold the suit land to defendant No.2 on 7.3.1992 for a sale consideration of Rs.12000/- just to defeat the rights of the plaintiff.

¶49

14 It is further case of the plaintiff that in pursuance to the payment of earnest money, the possession of the suit land was also handed over to the plaintiff and thereafter, he is enjoying the suit land being in its possession.

¶50

15 In order to substantiate its case, the plaintiff has placed on record copy of the agreement to sell, Ext. PW1/A and perusal whereof reveals that on 31.3.1989, defendant No.1 agreed to sell the suit land to the plaintiff for a total sale consideration of Rs.15,547.50 ( Fifteen Thousand Five Hundred Forty-Seven and Fifty Paise) i.e. at the rate of Rs.9000/- per bigha. It also emanates from the aforesaid agreement that out of total sale consideration of Rs.15,547.50 ( Fifteen Thousand Five Hundred Forty-Seven and Fifty Paise) , a sum of Rs.10,000/- was paid to defendant No1. Further perusal of the agreement, Ext. PW1/A it appears that there is acknowledgement that the defendant No.1 had received earnest money of Rs.10,000/- from the plaintiff and thereafter possession was handed over to the

¶51

11

¶52

plaintiff. It has been stipulated in the agreement that remaining sale consideration was to be paid to defendant No.1 at the time of execution and registration of the sale deed and the sale deed can be executed as and when plaintiff desires. It is mentioned that in case defendant No.1 refuses to perform her part of the contract, in that event, the plaintiff shall be able to get the redressal of his grievances from the competent court of law by instituting the appropriate proceedings against her.

¶53

16 The agreement to sell, Ext. PW1/A has been witnessed by one Lal Man and Puran Singh. The defendant No.1 has also appended her thumb impression on the agreement, Ext. PW1/A and it is duly signed by the plaintiff. 17 In order to substantiate and prove the execution of the agreement to sell, the plaintiff examined himself as PW1. While entering the witness box as PW1 he has reiterated the averments as contained in the plaint that agreement to sell was entered on 31.3.1989 between the parties and out of the total sale consideration of Rs.15,547.50 ( Fifteen Thousand Five Hundred Forty-Seven and Fifty Paise) , a sum of Rs.10,000/- was paid to defendant No.1. When plaintiff requested defendant No.1 to execute the

¶54

12

¶55

sale deed in the year 1992, then she stated that she shall do the needful, but subsequently she sold the suit land to defendant No.2 in order to defeat the rights of the plaintiff. 18 PW2 Lal Man, who is one of the witnesses of the agreement to sell, EXt. PW1/A, has supported the case of the plaintiff and has reiterated the averments as made by the plaintiff as PW1. He has submitted in his deposition that an agreement to sell the suit land was entered into between the plaintiff and defendant No.1 at the rate of Rs.9000/- per bigha. The agreement, Ext. PW1/A was executed between the parties and an earnest money amounting to Rs.10,000/- was paid to defendant No.1 and the possession of the land in question was handed over to the plaintiff. 19 In order to corroborate the case of the plaintiff and execution of the agreement to sell, Ext. PW1/A, the son of defendant No.1, namely, Teju entered the witness box as PW3. He has also reiterated the facts as made in the plaint and statements as made by PW1 and PW2. He has averred that an agreement to sell was entered between the parties for sale of the suit land @ Rs.9000/- per bigha and out of the total sale consideration, an earnest money of Rs.10,000/was paid to defendant No.1. He has also reiterated that on

¶56

13

¶57

the day when the agreement to sell was entered, the possession of the suit land was handed over to the plaintiff. 20 Another witness of the agreement, Ext. PW1/A, Puran Chand was examined by the defendants as DW4, who in his examination- in-chief, though has denied the case of the plaintiff and has stated that on the agreement to sell Ext. PW1/A, his signature, Mark B, is appended by him or not can be ascertained after comparing the same. He has stated that the plaintiff had come to him along with an agreement and he has requested him (DW4) to append his signatures on the same, but he had said that he would not append his signature on the blank papers and at that time, PW2 Lal Man and defendant No.1 did not come to his house.

¶58

21 In the cross-examination, DW4 has demolished case of the defendants and has supported the claim as presented by the plaintiff. He has admitted in his crossexamination that the plaintiff had paid a sum of Rs.10,000/to defendant No.1. He has also admitted that the said amount was paid as an earnest money in his presence. He has admitted that when a sum of Rs.10,000/- was paid to defendant No.1 by the plaintiff at the time other witness PW2 Lal Man was also present on the spot. He has further

¶59

14

¶60

admitted that the said writing was prepared on the spot and the signatures were also appended by the parties on the spot. He has admitted that after giving money by the plaintiff to defendant No.1, DW4, plaintiff, defendant No.1 and other witness PW2 had appended their respective signatures on the agreement to sell, Ext. PW1/A.

¶61

22 The said depositions by the respective parties clearly establish and prove due execution of the agreement to sell between the plaintiff and defendant No.1. The plaintiff has been able to establish that the agreement to sell was entered between the plaintiff and defendant No.1 in the presence of marginal witnesses PW2 Lal Man and DW4 Puran Chand. The testimonies of the plaintiffs’ witnesses, DW4 and agreement, Ext. PW1/A clearly establish and prove the case of the plaintiff that an agreement to sell was executed and prepared in accordance with law. Further, it has been proved that the earnest money amounting to Rs.10,000/- was paid to defendant No.1. The case as set up by the plaintiff is that defendant No.1 sold her ¼ share to the plaintiff @ Rs.9000 per bigha for a total sale consideration of Rs.15,547.50 ( Fifteen Thousand Five Hundred Forty-Seven and Fifty Paise) , out of which Rs.10,000/- was paid to defendant No.1.

¶62

15

¶63

Testimonies of plaintiffs’ witnesses and DW4 establish that defendant No.1 received a sum of Rs.10,000/- as earnest money from the plaintiff.

¶64

23 The contents of the agreement to sell, Ext. PW1/A contain the averments whereby defendant No.1 has acknowledged the receipt of the sale consideration and handing over the possession of the land in question to the plaintiff. PW1, PW2 and specially PW3, who happens to be son of defendant No.1, has admitted claim of the plaintiff that on the date of execution of the agreement to sell i.e. on 31.3.1989, the defendant No.1 handed over the possession of the suit land to the plaintiff. Though defendant No.1 while deposing in the witness box tried to prove otherwise, however in case the entire testimony is seen in that even it shall be clear that the possession was handed over to the plaintiff in pursuance to the agreement to sell, Ext. PW1/A. 24 In her deposition while appearing as DW1, she has submitted and taken a stand that no agreement to sell was entered between the parties. Neither she received any sale consideration nor she handed over the possession to the plaintiff. Further she had taken a stand that she sold the suit land for a sum of Rs.12,000/- to defendant No.2. She has

¶65

16

¶66

refuted that any amount was paid by the plaintiff to her. She has further refuted her thumb impression on the agreement to sell, Ext. PW1/A.

¶67

25 In her cross-examination, earlier she denied that the suit land was cultivated by the plaintiff and stated that the suit land was cultivated by Suresh and this year also, the land was cultivated by Suresh, but surprisingly and interestingly, she has admitted that Suresh had expired about 2 years ago. This statement clearly establishes that defendant No.2 in whose favour defendant No.1 had executed sale deed was not cultivating the suit land since as per her own deposition defendant No.2 had expired about 2 years ago from the date when she deposed before the Court.

¶68

26 The plaintiff has been able to establish his case by leading oral as well as documentary evidence placed on record, whereby the execution of the agreement to sell between the plaintiff and defendant No.1, the payment of earnest money made by plaintiff and delivery of possession of the suit land to the plaintiff have been proved.

¶69

27 Both the learned courts below have dealt with the issue in detail and have given detailed findings on this aspect. The learned first appellate court has, in its judgment,

¶70

17

¶71

touched each and every aspect of the case and has passed the judgment after appreciating the oral as well documentary evidence on record.

¶72

28 The defendants have filed joint written statement in order to rebut the case of the plaintiff and has placed on record common defence. In the written statement halfheartedly it was tried to be projected that defendant No.2 is the bona fide purchaser of the suit land, however perusal of the record and evidence available on record reveal that no evidence qua this fact has been led by the defendants. The testimonies of the defendants’ witnesses do not prove the case of the defendants and the perusal whereof would show that there is no such evidence on the said aspect. Therefore, defendant No.2 has failed to prove its case of being a bona fide purchaser of the suit land.

¶73

29 The learned counsel for the appellants has urged that the plaintiff has failed to prove its case in view of provisions of Section 16 (C) of the Specific Relief Act as he has failed to plead and prove his readiness and willingness in order to get the decree of specific performance. He has further contended that no decree of specific performance

¶74

18

¶75

could have been granted in favour of the plaintiff in absence of proof of readiness and willingness.

¶76

30 Adverting to plaint filed by the plaintiff, in para 2 thereof, it has been stated that in part performance of the agreement to sell, he had paid a sum of Rs.10,000/- to defendant No.1 by way of earnest money and thereafter he had been handed over the vacant and peaceful possession of the suit land. Further it has been stated that the plaintiff is in joint possession of the suit property till date and the balance of the sale consideration of Rs. 5,547.50 was agreed to be paid to defendant No.1 at the time of registration of the sale deed. In para 7 thereof, the plaintiff has categorically averred that he was willing to perform his own part of the agreement to sell and still, he is ready and willing to do so but defendant No.1 has willfully committed breach of terms and conditions of the said agreement and in violation of the agreement to sell, she has sold the suit land to defendant No.2 on 10.3.1992.

¶77

31 The said averments as made in the plaint have been corroborated by the plaintiff in his deposition while entering into the witness box as PW1. In his deposition, while appearing as PW1 he has specifically submitted that an

¶78

19

¶79

agreement to sell was entered between the parties on 31.3.1985, Ext. PW1/A, which was duly signed by the plaintiff, defendant No.1 and its witnesses namely Lal Man and Puran Chand. It has been specified that the land was agreed to be sold to the plaintiff @ Rs.9000/- per bigha and out of total sale consideration of Rs.15,547.50 ( Fifteen Thousand Five Hundred Forty-Seven and Fifty Paise) a sum of Rs.10,000/- as earnest money was paid to defendant No.1. Further, he has averred that he is ready to pay the remaining amount. He has submitted that though in the year 1992, he requested defendant No.1 to execute the sale deed, however in order to defeat the rights of the plaintiff, the sale deed was executed in favour of defendant No.2.

¶80

32 Perusal of the plaint and testimony as made by PW1 and in addition to payment of earnest money of Rs.10,000/- shows that plaintiff is ready and willing to perform his part of the contract. As a matter of fact, payment of considerable earnest money @ Rs.10,000/- out of total sale consideration of Rs.15,547.50 ( Fifteen Thousand Five Hundred Forty-Seven and Fifty Paise) show readiness and willingness on the part of the plaintiff in order to perform his part of the contract.

¶81

20

¶82

33 Once the plaintiff has been able to establish and prove, more so in view of the findings as returned concurrently by the learned courts below that earnest money of Rs.10,000/- has been paid to defendant No.1, clearly establishes his case with respect to his readiness and willingness, the opinion regarding plaintiff’s readiness and willingness to perform his part under the contract is to be found on the entirety of the proved facts and circumstances of the case including conduct of the parties.

¶83

34 The test is that the person claiming performance must satisfy the conscience of the Court that he has treated the contract subsisting with preparedness to fulfill his obligation and accept performance when time for performance arrives.

¶84

35 In the present case, agreement was entered between the parties in the year 1989 and the plaintiff paid earnest money to defendant No.1 and he got possession of the suit land. The perusal of agreement in question shows that time was not essence of the contract and in the year 1992 when the plaintiff requested defendant No.1 to perform

¶85

her part of the contract, she agreed and requested the plaintiff to wait for some time and subsequently, instead of

¶86

21

¶87

registering the sale deed, she sold the suit land in the year 1992 in favour of defendant No.2.

¶88

36 Generally, time is presumed not to be essence of the contract relating to the immovable property, therefore, onus to prove and plead that the time was essence of the contract is on the person who alleges it.

¶89

37 The Hon’ble Supreme Court in catena of judgments has held that the first appellate is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 CPC can interference with the findings of fact on limited grounds such as - (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of the relevant admissible evidence; (c) where it is based on misreading of evidence; (d) where it is perverse, but that is not case in hand.

¶90

38 The Hon’ble Supreme Court while dealing with scope of interference under Section 100 in Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545 has held as under:

¶91

18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally

¶92

22

¶93

deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that : "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in

¶94

23

¶95

determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

¶96

19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

¶97

20. to 22 xx xx xx xx

¶98

23. 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, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the

¶99

24

¶100

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.”

¶101

39 The Hon’ble Supreme Court in Annamalai vs.

¶102

Vasanthi, 2025 INSC 1267 , has held as follows:-

¶103

“16. Whether D-1 and D-2 were able to discharge the aforesaid burden is a question of fact which had to be determined by a court of fact after appreciating the evidence available on record. Under CPC, a first appellate court is the final court of fact. No doubt, a second appellate court exercising power(s) under Section 100 CPC can interfere with a finding of fact on limited grounds, such as, (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of relevant admissible evidence; (c) where it is based on misreading of evidence; and (d) where it is perverse. But that is not the case here.

¶104

17. In the case on hand, the first appellate court, in paragraph 29 of its judgment, accepted the

¶105

25

¶106

endorsement (Exb. A-2) made on the back of a registered document (Exb. A-1) after considering the oral evidence led by the plaintiff-appellant and the circumstance that signature(s)/thumbmark of D-1 and D-2 were not disputed, though claimed as one obtained on a blank paper. The reasoning of the first appellate court in paragraph 29 of its judgment was not addressed by the High Court. In fact, the High Court, in one line, on a flimsy defense of use of a signed blank paper, observed that genuineness of Exb. A-2 is not proved. In our view, the High Court fell in error here. While exercising powers under Section 100 CPC, it ought not to have interfered with the finding of fact returned by the first appellate court on this aspect; more so, when the first appellate court had drawn its conclusion after appreciating the evidence available on record as also the circumstance that signature(s)/thumbmark(s) appearing on the document (Exb.A-2) were not disputed. Otherwise also, while disturbing the finding of the first appellate court, the High Court did not hold that the finding returned by the first appellate court is based on a misreading of evidence, or is in ignorance of relevant evidence, or is perverse. Thus, there existed no occasion for the High Court, exercising power under Section 100 CPC, to interfere with the finding of the first appellate court regarding payment of additional Rs. 1,95,000 to D-1 and D-2 over and above the sale consideration fixed for the transaction.

¶107

18. Once the finding regarding payment of additional sum of Rs.1,95,000 to D-1 and D-2 recorded by the first appellate court is sustained, there appears no logical

¶108

26

¶109

reason to hold that the plaintiff (Annamalai) was not ready and willing to perform its part under the contract particularly when Rs. 4,70,000, out of total consideration of Rs. 4,80,000, was already paid and, over and above that, additional sum of Rs.1,95,000 was paid in lieu of demand made by D-1 & D-2. This we say so, because an opinion regarding plaintiff’s readiness and willingness to perform its part under the contract is to be formed on the entirety of proven facts and circumstances of a case including conduct of the parties. The test is that the person claiming performance must satisfy conscience of the court that he has treated the contract subsisting with preparedness to fulfil his obligation and accept performance when the time for performance arrives.”

¶110

40 The learned courts below have concurrently has held that the agreement to sell was entered between the parties, the earnest money was paid to defendant No.1 in part performance of the contract and the possession of the suit property was handed over to the plaintiff and in order to defeat rights of the plaintiff, sale deed was executed in favour of the defendant No.2 on 10.5.1992. The plaintiff was ready and willing to perform his part of the contract rather this Court will hold that the plaintiff has performed his part of the contract and now it was turn of defendant No.1 for execution of the sale deed and only thereafter the plaintiff was required

¶111

27

¶112

to give the remaining sale consideration amount to defendant No.1 and before doing so, in order to defeat rights of the plaintiff, sale deed was executed in favour of defendant No.2 on 10.5.1992.

¶113

41 As observed above, the Hon’ble Apex Court has repeatedly held that the scope of interference under Section 100 CPC is limited and the interference will be in those cases where the judgments are perverse and based on no evidence.

¶114

42 On perusal of the impugned judgments and decrees, this court is of the opinion that the same are valid, legal and sustainable in the eyes of law and no interference of any kind is required in the same.

¶115

43 The substantial question of law is answered accordingly.

¶116

44 In view of aforesaid discussion and for the reasons stated hereinabove, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.

¶117

10^th March, 2026 (Romesh Verma) (pankaj) Judge

Dharam Dass deleted through Lr'S and Others v. Inder Singh

Case brief

What is this about?

What did the court decide?

Dharam Dass deleted through Lr'S and Others v. Inder Singh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Ravinder Singh Vs Baldev Singh

Ram Swaroop (Deceased through LRs Janak Dulari and Another) Vs Rajinder Singh

NHAI Vs Prem Lal and Others

Preeto Devi @ Pritma Devi (Deceased through LRs Babhishan Singh and Others) Vs Balwinder Singh and Others

Yashpal and Ors. Vs Kundan Singh and Ors.

Netar Singh Vs Special Land Acquisition Officer and Others