Dismissed

Rahmat Ansari v. Daya Nidhan Prasad and Ors.

Patna HC3 Apr 2013SA/142/2010

Case brief

AI extract

What is this about?

Second appeal dismissed. The appellant, challenging specific performance of a Mahadanama involving land dispute, contended the lower courts erred in doubting the signature's genuineness. The High Court held findings involved pure questions of fact and were not without evidence.

What did the court decide?

Second Appeal No.142 of 2010 dismissed as no substantial question of law arose; findings of lower courts sustained.

Rahmat Ansari Vs Daya Nidhan Prasad and Ors. — Specific Performance | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.142 of 2010

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====================================================== Rahmat Ansari S/o Salim Ansari R/o village- Sikanderpur, P.O.- Ratanpura, P.S. Maharajganj, District Siwan

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.... .... Appellant Versus 1. Daya Nidhan Prasad, S/o Gyani Mahto 2. Nabizan Nisha, W/o Abdul Zoher, both residents of villageSikanderpur, P.O. Ratanpura, P.S.- Maharajganj, District Siwan 3. Sahmat Ansari S/o Salim Ansari R/o village- Sikanderpur, P.O. Ratanpur, P.S. Maharajganj, District- Siwan .... .... Respondents ====================================================== Appearance : For the Appellant : Mr. Farooque Moazzam, advocate Mr. Sudhir Ranjan, advocate For the Respondents : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER

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5 03-04-2013 Heard learned counsel for the appellant.

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This appeal under section 100 of the Code of Civil Procedure has been placed for hearing under Order 41 Rule 11of the Code of Civil Procedure.

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The appellant was the plaintiff before the trial court and is aggrieved by the judgement and decree dated 30-11-2009 and 10-12-2009 respectively, passed by learned Additional District Judge, Fast Track Court-II, Siwan in Title Appeal No. 22/2004 whereby he dismissed the appeal with cost confirming the judgement and decree dated 11-05-2004 and 19-05-2004 respectively, passed by learned Sub Judge, Siwan in Title Suit No.291/2001 whereby he had dismissed the suit.

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The case of the plaintiff/ appellant before the courts below was that the suit land was owned and possessed by Daya Nidhan Prasad, defendant No.1/ respondent No.1. Being in need of money he negotiated for sale of the suit land with the appellant

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Patna High Court SA No.142 of 2010 (5) dt.03-04-2013

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and one Sahmat Ansari, who was plaintiff No.2 before the trial court, for a sum of Rs. 40,000/-. The plaintiffs asserted that it was agreed between the parties that the plaintiff would be paying Rs. 15,000/- upon which the defendant/ respondent No.1 would execute a Mahadanama (agreement for sale) in favour of the appellant. The Mahadanama was accordingly executed on payment of Rs. 15,000/-. It was asserted that, as per terms of Mahadanama, the defendant was required to execute a sale deed on payment of rest of the amount, i.e., Rs. 25,000/- as Rs. 15,000/was already paid. However, inspite of request made by the plaintiff for execution of sale deed as per Mahadanama, the defendant refused to honour the terms of contract giving rise to cause of action to the plaintiffs to institute the suit.

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The defendant No.1, who is respondent No.1 herein, contested the suit by filing a written statement. The execution of Mahadanama was denied by the defendant/ respondent No.1 asserting that he had already sold the suit land to one Bibi Tabizan Nisha. The defendants pleaded that total area of suit plot No. 640 was 3 katha 4 dhur 10 dhurki which was purchased by Gyani Mahto, father of defendant No.1, from Chandeshwar Mahto and Babu Lal Mahto towards north. The said Gyani Mahto sold one katha 12 ¼ dhur land towards north east corner to Moharram Mian which was subsequently acquired by the State of Bihar. The rest land was in possession of father of defendant No.1 and after whose death defendant No.1 came in possession with absolute title over it. He was in need of money and he sold the suit property in favour of Bibi Tabizan Nisha on 07-10-2000 and put her in possession thereof.

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Defendant No.2 also contested the suit and she filed

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Patna High Court SA No.142 of 2010 (5) dt.03-04-2013

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written statement pleading that Mahadanama was forged and fabricated.

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On the basis of rival pleadings, learned trial court framed altogether seven issues including issue No. v which reads as follows:-

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“(v) Is the Mahadanama dated 30-10-2000 good, valid, genuine, operative or forged and fabricated one?”

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Parties led their evidence both oral and documentary. On the basis of such evidence, learned trial court disbelieved the Mahadanama itself. It came to specific finding in paragraph 8 of its judgement that the Mahadanama dated 30-10-2000 was never executed and was not valid and operative.

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On appeal, preferred against the finding of learned trial court, learned first appellate court, on the basis of grounds taken in appeal, formulated four points for consideration including point No.3, i.e., as to whether the plaintiff/appellant was entitled to a decree for Specific Performance of Contract with respect to the suit land against the respondents.

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From the reading of the judgement of learned first appellate court, it would appear that after considering in detail oral and documentary evidence, it came to the finding that the appellant failed to prove the disputed signature of the defendant No.1/ respondent No.1 on the Mahadanama and, thus, doubted the very genuineness of the Mahadanama. Concurring with finding of fact arrived at by learned trial court, learned first appellate court came to the finding that the Mahadanama could not be said to be enforceable.

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Learned counsel for the appellant, challenging the finding of fact recorded by the courts below, has contended that

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Patna High Court SA No.142 of 2010 (5) dt.03-04-2013

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the courts below did not take into account the relevant materials available on record as evidence in correct perspective and grossly erred while doubting the signature of defendant No.1 on Mahadanama though there was sufficient material on record to prove that in fact it was executed by defendant No.1.

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After having gone through the judgements of learned trial court and learned first appellate court, I am of the view that submission made on behalf of the appellant involves pure questions of fact. This court can interfere in exercise of power under section 100 of the Code of Civil Procedure only if finding of fact arrived at by the courts below are without any evidence or contrary to such evidence. Learned counsel for the appellant has not been able to point out that such finding of the courts below can be said to be without evidence or contrary to evidence and, therefore, perverse.

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In my view, the present second appeal does not involve any substantial question of law so as to merit its admission. The second appeal is, accordingly, dismissed.

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(Chakradhari Sharan Singh, J)

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BKS/-

Rahmat Ansari v. Daya Nidhan Prasad and Ors.

Case brief

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Rahmat Ansari v. Daya Nidhan Prasad and Ors.

Case brief

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