Dismissed

Mohammed Shabeer v. K. Nizar Ahmed

Karnataka HC22 Sept 2021RSA/705/2014

Case brief

AI extract

What is this about?

In a regular second appeal, a single judge of the High Court of Karnataka dismissed the appeal at the stage of admission. The court held that the concurrent findings of fact by the trial court and first appellate court on the agreement of sale and specific performance could not be upset as no substantial question of law was raised and the appellant failed to demonstrate perversity or error of law.

What did the court decide?

The regular second appeal is dismissed at the stage of admission due to absence of substantial question of law.

Mohammed Shabeer Vs K. Nizar Ahmed — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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REGULAR SECOND APPEAL NO.705 OF 2014

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BETWEEN:

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Mohammed Shabeer Since dead by LRs

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Mohammed Rafiq S/o Mohammed Shabeer Aged about 35 years

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Shaheen Taj D/o Mohammed Shabeer Aged about 38 years

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Tehara Nuri D/o Mohammed Shabeer Aged about 36 years

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Mumtaz W/o Mohammed Shabeer Aged about 57 years

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Mohammed Shahinsha S/o Mohammed Shabeer Aged about 36 years

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All are residing at Juma Masjid Mohalla Sharada Talkies Road Kolar District-563 135.

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…Appellants

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(by Sri Y R Sadasiva Reddy, Senior Counsel for Sri Deepak J, Advocate)

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AND:

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K Nizar Ahmed S/o Abdul Azeez Aged about 69 years R/at Juma Masjid Mohalla Sharada Talkies Road Kolar District-563 135.

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…Respondent

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(by Sri J G Chandra Mohan, Advocate)

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This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 11^th April, 2014 passed in Regular Appeal No.155 of 2010 on the file of the Principal District and Sessions Judge, Kolar, dismissing the appeal and upholding the judgment and decree dated 11^th December, 2008 passed in Original Suit No.185 of 2005 on the file of the III Additional Civil Judge (Sr. Dn) Kolar.

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This Appeal coming on for Admission, this day, the Court delivered the following:

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JUDGMENT

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This Regular Second Appeal is filed by the legal representatives of the defendant, challenging the judgment and decree dated 11^th April, 2014 passed in Regular Appeal No.155 of 2010 on the file of the Principal District Judge at Kolar, confirming the judgment and decree dated 11^th December, 2008 passed by the III Additional Senior Civil Judge at Kolar, decreeing the suit of the plaintiff.

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For the sake of convenience, parties in this appeal are referred to with respect to their ranking before the trial Court.

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It is the case of the plaintiff that the first defendant is the owner of the suit schedule property and he has entered into agreement of sale dated 03^rd October, 2002 agreeing to sell the suit schedule property for a total sale consideration of Rs.5,50,000/- and thereby received Rs.1,50,000/- as advance consideration and further it is averred in the plaint that the plaintiff was always ready and willing to a perform his part of contract by paying balance sale consideration of Rs.4,00,000/however, the defendant postponed the execution of registering sale deed in favour of the plaintiff without any valid reasons and as such the plaintiff has caused legal notice dated 18^th August, 2003 stating that he is ready and willing to get the sale deed registered by paying the balance sale consideration and as such, called upon the defendant to execute registered sale deed on 21^st August, 2003 before the Sub-Registrar, Kolar. It is further averred in the plaint that the defendant failed to execute the register sale deed and such plaintiff filed Original Suit No.185 of 2005 on the file of the trial Court seeking relief of specific performance of contract dated 03^rd October, 2002.

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On service of notice, defendants entered appearance. Defendant No.1 and 3 filed written statement denying the averments made in the plaint. It is the specific defence of the defendant that the plaintiff has concocted the documents to grab the suit schedule property and as such, prayed for dismissal of the suit.

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The trial Court, on the basis of the pleadings on record,

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has formulated the following issues for its consideration.

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1. Whether the plaintiff proves that the defendants executed an agreement of sale on 03.10.2002 agreeing to sell the suit schedule property to the plaintiff for a sum of Rs.5,50,000/-?

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2. Whether the plaintiff proves that the defendants received Rs.1,50,000/as advance under the agreement dated 03.10.2002?

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3. whether the plaintiff proves that he was ready and willing to perform his part of contract?

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4. Whether the defendants prove that the agreement dated 03.10.2002 produced by the plaintiff is a concocted and created document?

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5. Whether the plaintiff is entitled for the relief of specific performance of contract?

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6. What decree or order?

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On behalf of plaintiffs, three witnesses were examined

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as PW1 to PW3 and plaintiffs have produced 7 documents and same were marked as Exhibits P1 to P7. Defendants have examined four witness as DW1 to DW4 and marked 11 documents as Exhibits D1 to D11. The trial Court, after considering the material on record, by its judgment and decree dated 11^th December, 2008 decreed the suit and directed the defendants to execute registered sale deed in favour of the plaintiff in terms of Agreement of Sale dated 03^rd October, 2002. Being aggrieved by the judgment and decree passed by the trial Court, defendants have preferred Regular Appeal No.155 of 2010 on the file of the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court, after re-appreciating the material on record, by its judgment and decree dated 11^th April, 2014, dismissed the appeal, consequently, confirmed the judgment and decree passed by the trial Court. Being aggrieved by the judgment and decree passed by both the courts below, legal representatives of the defendant, have presented this appeal.

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I have heard Sri Y.R. Sadasiva Reddy learned senior counsel appearing on behalf of Sri Deepak J., and Sri J.G. Chandramohan, learned counsel appearing for the respondent.

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Sri Y.R. Sadasiva Reddy, learned Senior appearing for the appellant, contended that the suit schedule property is a house, which is an ancestral property of the deceased Mohammed Shabeer (defendant No.1) and therefore, both the courts below have not considered the fact that the agreement of sale is an invalid document and as such, sought for interference by this court in this appeal. He further contended that the plaintiff has not shown the readiness and willingness to complete the transaction as required by the Agreement of Sale dated 03^rd October, 2002 and therefore, he contended that the finding recorded by both the courts below is contrary to law.

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Per contra, Sri Chandramohan, learned counsel appearing for the respondent submitted that both the courts below, on facts, have held that the defendant is liable for breach of contract and accordingly, both the courts below directed the defendant to execute the registered sale deed in favour of the plaintiff. He further contended that since both the courts below have held against the defendants and as such, the interference

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is very limited unless it is established that the finding recorded by the courts below are illegal, perverse or unsustainable under law. He further submitted that the plaintiff has filed Execution Petition No.17 of 2009 before the court below and pursuant to the same, the sale deed was executed on 25^th March 2020 in favour of plaintiff and therefore, the relief sought for by the appellant does not survive for consideration. Sri Chandramohan, has placed the order sheet of the trial Court in Execution Petition No. 17 of 2009.

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Having heard the learned counsel appearing for the parties, it is not in dispute that the plaintiff and defendants have entered into agreement of sale, on 03^rd October, 2002 wherein the defendant agreed to sell the suit schedule property for total sale consideration of Rs.5,50,000/;- and as such the defendant has received Rs.1,50,000/- as advance amount. As rightly argued by the learned counsel appearing for the respondent, paragraph 2 of the written statement would clearly establish the fact that the suit schedule property belong to the defendant No.1-Mohammed Shabeer. Undisputably, parties to the suit are governed by Mohammadan Law and therefore, there is no concept of ancestral property, and the property devolve upon

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legal heirs by inheritance. I have carefully considered the agreement of sale Exhibit P6 which would clearly establish the fact that defendants have agreed to sell the suit schedule property in favour of the plaintiff and in order to prove the readiness and willingness, the plaintiff has issued legal notice dated 18^th August, 2003 (Exhibit P1) and the contents of the legal notice would clearly establish the fact that the plaintiff has shown readiness and willingness to purchase the suit schedule property by paying balance sale consideration of Rs.4,00,000/to the defendants. In order to prove the execution of Exhibit P1, the plaintiff has examined the attestors as PWs.2 and 3 and perusal of the testimony of PW3 would clearly establish that the fact that Mohammed Shabeer, owner of the suit schedule property, during his lifetime has agreed to sell the suit schedule property in favour of the plaintiff. On the other hand, I have carefully considered the testimony of the defendants, particularly the evidence of DW2, which substantiate the fact that the reply to legal notice was sent to the plaintiff as per Exhibit P5 and in that view of the matter, the perusal of the finding recorded by both the courts below would clearly establish the fact that the parties to the suit have entered into an Agreement of Sale and

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the defendants failed to execute the registered sale deed in favour of the plaintiff. Though the defendants have examined DW3 and DW4 to deny the execution of agreement of sale, however, their testimony cannot be a basis to arrive at the conclusion to disprove the execution of the Agreement of Sale in favour of the plaintiff and therefore, I do not find any material irregularity or perversity in judgment and decree passed by the trial Court.

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I have also examined the finding recorded by the First Appellate Court, wherein the First Appellate Court, after reappreciating the material on record, had arrived at the conclusion that the defendants have failed to establish their case that the Agreement of Sale was executed in favour of the plaintiff by Mohammed Shabeer without any legal necessity as such, and in that view of the matter, the finding recorded by the First Appellate Court is just and proper. That apart, pursuant to the judgment and decree of the trial Court, Execution Petition No.17 of 2009 was filed before the trial Court and thereafter, registered sale deed was executed in favour of the plaintiff on 25^th March, 2010 and in that view of the matter, the submission made by the learned counsel appearing for the respondent be

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accepted that the parties to the suit have completed the transaction in terms of the sale deed dated 23^rd March, 2010.

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In this regard, it is useful to refer to the judgment of the Hon'ble Supreme Court in the case of LAXMIDEVAMMA AND OTHERS v. RANGANATH AND OTHERS reported in (2015)4 SCC 264, whereunder at paragraphs 13 and 16 of the judgment, it is observed as under:

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“13. Based upon oral and documentary evidences, the courts below have recorded concurrent findings that the plaintiffs are the owners of 'A' schedule property. While so, the High Court ignoring the material evidence, erred in interfering with the concurrent findings of fact. …

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14 and 15. xxx xxx xxx

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16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High

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Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.”

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In the case of THULASIDHARA AND ANOTHER v. NARAYANAPPA AND OTHERS reported in (2019) 6 SCC 409, at paragraphs 7.2 and 7.3 of the judgment, the Hon’ble Supreme Court has observed thus:

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“7.2 As observed and held by this Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999)3 SCC 722, in the Second Appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:

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(i) Contrary to the mandatory provisions of the applicable law;

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(ii) Contrary to the law as pronounced by the Apex Court;

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(iii) Based on inadmissible evidence or no evidence.

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It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its

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discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in Second Appeal.

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7.3. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434. In the aforesaid decision, this Court has specifically observed and held:

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10. Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.

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11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion.

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12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible.

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13. In either of the above situations, a substantial question of law can arise.”

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The Hon’ble Supreme Court in the case of S.

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SUBRAMANIAN v S RAMASAMY ETC. reported in AIR 2019 SCC

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3056, at paragraphs 8.1, 8.2 and 8.5 of the judgment, has observed thus:

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“8.1. …As per catena of decisions of this Court, while deciding the second appeal under Section 100 of the CPC, the High Court is not required to re-appreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the Courts below when the findings recorded by both the Courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which is not permissible under the law.

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8.2. Even otherwise, it is required to be noted that as per catena of decisions of this Court and even as provided under Section 100 of the CPC, the Second Appeal would be maintainable only on substantial question of law. The Second Appeal does not lie on question of facts or of law. The existence of ‘a substantial question of law’ is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam, in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous….

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8.3. and 8.4. xxx xxx xxx

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8.5. As observed hereinabove, while passing the impugned Judgment and Order, the High Court has reappreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of Code of Civil Procedure. High Court to reappreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second

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Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC.”

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It is settled principle of law that even if two inferences are possible in a given set of circumstances, the finding recorded by the lower appellate court is binding on the high Court. In this connection, it is relevant to deduce the observation made by the Hon'ble Supreme Court in the case of DODDANARAYANA REDDY (DEAD) BY LRs AND OTHERS v. C. JAYARAMA REDDY (DEAD) BY LRs AND OTHERS reported in (2020)4 SCC 649, wherein at paragraphs 25 and 26 of the judgment the Hon'ble Supreme Court has observed thus:

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“ 25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E- Ismail Madris- Un-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

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“12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said

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finding of fact is either perverse or not based on material on record.

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13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held:

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"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

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14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166), this Court held :

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"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

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15. Again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this

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Court held:

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"The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."

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26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors., this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate

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court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:

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“5. It is not within the domain of the High Court to investigate the grounds on which 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 had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence. ”

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In that view of the matter, I do not find any ground to interfere with the well-reasoned judgment and decree passed by the courts below. Accordingly, the appeal fails and is liable to be dismissed. Since the appellant has failed to make out any

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ground for framing of substantial question of law as required under Section 100 of the Code of Civil Procedure, the appeal stands dismissed at the stage of Admission itself.

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Sd/JUDGE

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lnn

Mohammed Shabeer v. K. Nizar Ahmed

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Mohammed Shabeer v. K. Nizar Ahmed

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