Dismissed

Santosh Kumar and Ors. v. Kelawati Devi and Anr.

Patna HC7 Dec 2012SA/387/2009

Case brief

AI extract

What is this about?

Santosh Kumar filed a second appeal under Order 41 Rule 11 CPC. The Patna High Court held that the genuineness of the agreement was a question of fact decided by courts below, not raising a substantial question of law. The appeal was dismissed in the admission stage.

What did the court decide?

The Second Appeal set aside the lower appellate order and dismissed in the admission stage holding no substantial question of law.

Santosh Kumar and Ors. Vs Kelawati Devi and Anr. — Specific Performance | Patna HC (2012)

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Patna High Court SA No.387 of 2009 (11) dt.07-12-2012 1

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.387 of 2009 ====================================================== Santosh Kumar & Ors. .... .... Appellant/s Versus Kelawati Devi & Anr. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Binod Kumar Singh Mr. Satyendra Pd. Singh For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 11 07-12-2012 Heard the learned counsel, Mr. Binod Kumar Singh appearing on behalf of the appellants and the learned counsel, Mr. Ashok Kumar Garg appearing on behalf of the respondents under Order 41 Rule 11 C.P.C. (2) The defendants-appellants-appellants have filed this Second Appeal against the judgment and decree dated 02.06.2009 passed by learned Additional District Judge, F.T.C. V, Buxar in Title Appeal No.32 of 2007 whereby the Lower Appellate Court dismissed the appeal and confirmed the judgment and decree dated 20.06.2007 passed by learned Civil Judge (Sr. Div.) II, Buxar in Title Suit No.87 of 1991. (3) The plaintiffs-respondents filed the aforesaid suit for specific performance of contract alleging that there was an agreement between the parties for sell of the suit property on

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Patna High Court SA No.387 of 2009 (11) dt.07-12-2012 2

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14.02.1989 for Rs.35,000. Rs.15,000 was paid as earnest money and the remaining balance consideration of Rs.20,000 was to be paid at the time of execution and registration of the sale deed in favour of the plaintiff by February, 1992. The plaintiff alleged that the plaintiff is always ready and willing to perform his part of the contract. He requested many times to the defendant to receive the balance consideration amount and execute the sale deed but the defendant subsequently sold the property to the defendant nos.2 and 4.

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(4) The defendants filed contesting written statement mainly contending that the alleged Mahadanama, Ext.3 is forged and fabricated document and was not executed by the original defendant no.1, Champa Devi. There was earlier agreement on 02.12.1988 executed by original defendant no.1 in favour of defendant no.2 and pursuant to that agreement, this original defendant has sold the property to the defendant no.2 on 09.09.1991. Since there was earlier agreement in favour of defendant no.2, there is no question of entering into agreement by the plaintiff arises.

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(5) The trial court recorded the finding that the Mahadanama in question is genuine and valid Mahadanama and, therefore, plaintiff’s suit was decreed for specific performance of

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Patna High Court SA No.387 of 2009 (11) dt.07-12-2012 3

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contract. On appeal, the Lower Appellate Court also recording the finding that the alleged agreement, Ext.3 is genuine and valid document executed by the defendant no.1. The sale deed in favour of defendant no.2 was executed during the pendency of the suit. Accordingly, the appeal was dismissed.

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(6) The learned counsel, Mr. Binod Kumar Singh appearing on behalf of the appellants submitted that since there was agreement in the year 1988 in favour of the defendant no.2, there was no question of execution of the present Mahadanama in favour of the plaintiff arises. Therefore, in fact, the Mahadanama in question i.e. Ext.3 is forged document but wrongly both the courts below recorded the finding that the Mahadanama is genuine document. Except this ground, no other question has been arises.

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(7) So far the submission of the learned counsel that there had already been agreement between the defendant no.1 and defendant no.2 is concerned, it may be mentioned here that the defendant no.2 is not the appellant before this court. Moreover, admittedly, during the pendency of the suit for specific performance, the defendant no.1 sold the property to defendant no.2. Now, therefore, it is for the defendant to have proved that in fact, there was earlier agreement i.e. dated 02.12.1988 executed by defendant no.1 in favour of defendant no.2. In the present case,

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Patna High Court SA No.387 of 2009 (11) dt.07-12-2012 4

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admittedly, both the courts below recorded that Exhibit 3, the agreement is genuine document.

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(8) In the case of Rur Singh(Dead) through LRS.

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and others vs. Bachan Kaur, (2009) 11 Supreme Court Cases 1, the Apex Court considering the genuineness of the Will held that a question whether the Will had been duly proved and/or was otherwise genuine. It is essentially a question of fact. A finding of fact arrived at by the trial court and/or the first appellate court may be interfered with only when a substantial question of law arises for consideration. The question that raised by the learned counsel is essentially a question of fact, therefore, the same cannot be considered to be a substantial question of law involved in the present case.

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(9) In view of the above facts and circumstances of the case and the discussion, in my opinion, no substantial question of law is involved in this Second Appeal and accordingly, this Second Appeal is dismissed at the admission stage itself.

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(Mungeshwar Sahoo, J)

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Saurabh/-

Santosh Kumar and Ors. v. Kelawati Devi and Anr.

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Santosh Kumar and Ors. v. Kelawati Devi and Anr.

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