Dismissed

Anil Kumar Gupta v. Pradeep Kr. Gosh

Patna HC1 Mar 2013SA/654/2011

Case brief

AI extract

What is this about?

The Patna High Court dismissed a second appeal under section 100 of the CPC. The court held that the appeal did not involve a substantial question of law as the trial and first appellate courts had concurrent findings on facts and legal sufficiency dismissing the suit.

What did the court decide?

The second appeal under section 100 of the Code of Civil Procedure was dismissed as it did not involve a substantial question of law.

Anil Kumar Gupta Vs Pradeep Kr. Gosh — Specific Performance | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.654 of 2011

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====================================================== 1. Anil Kumar Gupta S/O Late Arjun Lal Resident of 12, Satish Sarkar Lane, Mohalla Masiachak, P.S. Kotwali, District Bhagalpur. .... .... Appellant Versus 1. Pradeep Kr. Gosh @ Ghosh S/O Dileep Kumar Gosh Resident Of Mohalla Khanjarpur, P.S. Barari District Bhagalpur Holding Power Of Attorney On Behalf Of Shri Deo Priya Biswas Son Of Sri Kali Pada Biswas, Resident Of 10, D.N. Mitra Road, District Burdwan (West Bengal). .... .... Respondents ====================================================== Appearance : For the Appellant/s : Mr. Dr. Manoj Kumar, advocate Mr. Ajay Kumar Verma, advocate Mrs. Sweety Sinha, advocate For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER

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5 01-03-2013 Heard learned counsel for the appellant.

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The present appeal under section 100 of the Code of Civil Procedure (hereinafter referred to as the Code) has been placed before me for hearing under Order 41 Rule 11 of the Code. 3. The appellant who was plaintiff before the court below after loosing in both the courts below has preferred the present appeal being aggrieved by the judgement and decree dated 29-08-2011 passed by the learned 5^th Additional District Judge, Bhagalpur in Title Appeal No. 207 of 2006 whereby he has affirmed the judgement and decree dated 31-08-2001 passed by learned Sub Judge-III, Bhagalpur in Title Suit No. 33 of 2000.

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Before I refer to the relief sought for by plaintiffappellant, it would be apt to refer to the case as developed by the contesting parties in their respective pleadings.

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As per plaintiff, one Deo Priya Biswas of Burdwan

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(West Bengal) happened to be owner of the suit land as described in the schedule to the plaint. According to plaintiff the land was wrongly recorded in the name of Chikitsa Mahavidyalaya, Bhagalpur, the State of Bihar, in R.S. Khatiyan. Deo Priya Biswas is said to have acquired the suit property by inheritance from his ancestor Jadunath Biswas at the time of vesting of Jamindari. The Jamabandi No. 29 was created in the name of ancestor of Deo Priya Biswas. It was further pleaded that the suit land of Khata No. 798 (old), 47 (new) and Khesra No. 1331(pa) and 1331(ba) was not finally published in R.S. Khatiyan. It was further pleaded that the entire property admeasuring 5.6 acres was coming in possession of Deo Priya Biswas out of which 3.6 acres was acquired by the State of Bihar for construction of Chikitsa Mahavidyalaya, Bhagalpur. The rest of the land remained in possession of Deo Priya Biswas but it was wrongly surveyed in the name of State of Bihar though only 3.6 acres of land was acquired by the State of Bihar. The further case developed by the plaintiff before the trial court was that the said Deo Priya Biswas was desirous of disposing of the landed property of Bhagalpur as he was normally residing in the district Burdwan. He authorized the respondent/defendant to deal with the property and executed a power of attorney in favour of defendant. This it to be noted that as per pleadings of the plaintiff Deo Priya Biswas happened to be maternal uncle of the defendant in whose favour the said power of attorney was said to have been executed.

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As per plaintiff’s case the defendant approached the plaintiff to arrange purchaser for sale of the schedule- A property at the rate of Rs. 15,000/- per Katha to which the plaintiff agreed and he himself paid to the defendant a sum of Rs. 10,000/- and an

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agreement was entered into between the plaintiff and defendant, the so called power of attorney holder on 06-01-1988. The plaintiff further pleaded that no time limit was mentioned in the agreement for execution of the sale deed. Thereafter, on several occasions the plaintiff requested the defendant to get sale deed executed but nothing was done and finally in the year 2000 the suit was filed for specific performance of contract as per the said agreement dated 06-01-1988.

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The respondent/defendant contested the suit by filing written statement questioning, inter alia, the maintainability of the suit on the ground of being barred by limitation, non joinder of necessary party and Section 34 of the Specific Relief Act, 1963. The defendant pleaded that the real owner of the suit property, Deo Priya Biswas was a necessary party who was not impleaded as defendant in the suit and, therefore, the suit was not maintainable. The respondent also took the plea that the agreement dated 06-01-1988 was not admissible as evidence firstly for the reason that the plaintiff fraudulently obtained his signature on a blank stamp paper so as to prepare the said agreement and secondly the suit was filed after more than 12 years from the date of the alleged agreement. It was specifically pleaded that the plaintiff committed fraud and prepared the agreement on a blank sheet of paper bearing the respondent’s signature. The respondent denied the claim of the plaintiff whole hog and sought the suit to be dismissed.

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Learned trial court framed altogether eight issues including issues No. ii, iii, v and vi which are being quoted herein below:-

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“(ii) Is the suit barred by law of limitation and

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u/s 34 of Specific Relief Act?

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(iii) Is the suit is bad for defect of parties? (v) Is the agreement deed dated 6-1-1988 is

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Is the agreement deed dated 6-1-1988 is valid, legal and genuine document, executed by the defendant in favour of the plaintiff?

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(vi) Has the defendant fraudulently in executing the agreement deed dated 6-1-1988?” (quotes are verbatim)

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The parties thereafter adduced evidences both oral and documentary. On the basis of such evidence available on record, learned trial court decided issues No. v and vi against the plaintiff. Learned trial court held that the plaintiff failed to prove his case for the reasons stated in the judgement and also for the reason that the agreement dated 06-01-1988 was not a registered document.

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Deciding the question of limitation, learned trial court held that the suit was barred by limitation as it was filed in the year 2000 for enforcing so called agreement dated 06-01-1988. Learned trial court also held that in the absence of real owner, Deo Priya Biswas, the suit was bad for defect of parties. For the above and for other reasons mentioned in the trial court judgement, learned trial court dismissed the suit.

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Plaintiff thereafter preferred appeal vide Title Appeal No. 207 of 2006 in the file of 5^th Additional District Judge, Bhagalpur. On the basis of materials available on record and on the basis of rival contentions learned first appellate court formulated three points for consideration. Learned first appellate court concurred with the trial court on the points regarding

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maintainability of suit in the absence of Deo Priya Biswas who was a necessary party as also the point that the suit was barred by limitation and hit by Section 34 of Specific Relief Act, 1963. Learned first appellate court also concurred with finding that the said deed of agreement dated 06-01-1988 was not genuine and operative and came to the conclusion that reasons assigned by the learned trial court for dismissing the suit were rational and cogent.

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Dr. Manoj Kumar, learned counsel appearing on behalf of the appellant, however, has assailed the reasons assigned by the courts below on the ground that the courts below wrongly refused to take the agreement dated 06-01-1988 admissible as evidence on the basis that it was not registered. Learned counsel has relied upon the following judgments of this court:-

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(i) 2008 (2) PLJR, 792, Emarat Co-operative Housing Society v. the State of Bihar

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(ii) 2008 (4) PLJR, 401, Ram Sagar Devi v. Most Ghutru Devi .

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He has also placed reliance upon a Supreme Court judgement reported in 2009 (2) PLJR (SC), 119, Aloka Bose v. Parmatma Devi to support his contention. However, in the present case, non registration of agreement for sale dated 06-01-1988 is not the only basis for the trial court to have rejected the relief sought by the appellant. Learned trial court considered all the evidences adduced in course of trial on behalf of appellant as well as the defendant and taking into account the fact that the said deed of agreement to sale was not registered decided the issues against the appellant. The first appellate court also refused to interfere with the finding of the trial court on the basis of his appraisal of

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evidence available on record. Further, learned counsel on behalf of the appellant has not been able to point out as to how the grounds for dismissal of the suit being barred by limitation and non joinder of necessary party were erroneous or contrary to law.

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After having gone through the judgements of the court below, there being concurrent finding of fact and the suit having been dismissed on the ground of its maintainability also, I do not find this appeal to be a fit case for admission as it does not involve any substantial question of law. The power of the High Court under section 100 of the Code is limited only to a situation where the appeal involves a substantial question of law. Section 101 of the Code specifically provides that second appeal cannot be maintained on any other ground.

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In such view of the matter, the appeal is dismissed.

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(Chakradhari Sharan Singh, J)

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BKS/-

Anil Kumar Gupta v. Pradeep Kr. Gosh

Case brief

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Anil Kumar Gupta v. Pradeep Kr. Gosh

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