Krishan Kumar Vs Tajender and Anr.

The plain2ff of the case is before this Court in the present Regular Second Appeal assailing the concurrent findings recorded by both the Courts below, inasmuch as the suit filed by him seeking possession of suit land by way of specific performance of agreement to sell was dismissed by the learned trial Court vide judgment and decree dated 03.05.2016, and the appeal preferred by him was dismissed by the learned First Appellate Court vide judgment and decree dated 10.01.2023.

¶12

Learned counsel for the appellant contends that the Courts below have failed to appreciate the evidence available on record in its proper perspec2ve and have erroneously dismissed the suit of the plain2ff. 3. As per the case set up by the plain2ff–appellant, the defendant had agreed to sell the suit land measuring 47 Kanal 18 Marla vide agreement to sell dated 04.11.2011 for a total sale considera2on of ₹59,91,000/-, out of which an amount of ₹53,91,000/- was allegedly paid as earnest money. It was further pleaded that possession of the suit land was delivered to the plain2ff at the 2me of execu2on of the agreement. The balance sale considera2on was to be paid at the 2me of execu2on and registra2on of the sale deed and 04.12.2011 was fixed as the target date for

¶13

YOGESH MEHTA 2026.03.11 12:14 I attest to the accuracy and integrity of this document

¶14

RSA-1843-2023 (O&M) [2]

¶15

execu2on of the sale deed. Since the said date happened to be a Sunday, the plain2ff claimed that he appeared before the Sub-Registrar on 02.12.2011 as well as on 05.12.2011, but the defendant failed to appear to execute the sale deed.

¶16

The defendant contested the suit and denied the execu2on of any agreement to sell or receipt of any earnest money. It was pleaded that an FIR No. 73 dated 20.10.2010 under Sec2ons 147, 148, 323, 325, 307 and 506 IPC at Police Sta2on Satnali had been registered against the defendant at the instance of the plain2ff. According to the defendant, the plain2ff had obtained his signatures on certain documents under the pretext of effec2ng a compromise in the said criminal case.

¶17

ADer considering the pleadings and evidence led by the par2es, the learned trial Court dismissed the suit. The trial Court found that the rela2onship between the par2es was admiEedly strained due to pending criminal li2ga2on and therefore, the execu2on of an agreement to sell involving such a huge transac2on appeared highly improbable. The Court further no2ced that the agreement to sell was allegedly executed on the very day, when the plain2ff appeared as a witness in the criminal case and turned hos2le. The aEes2ng witnesses to the agreement were also witnesses in the said criminal case, who subsequently turned hos2le. The trial Court also recorded a categorical finding that the alleged payment of earnest money to the tune of ₹53,91,000/- was not proved and that the recital regarding payment of such amount appeared to be fic22ous.

¶18

The learned trial Court further held that the agreement appeared to have been executed in connec2on with the compromise in the criminal case involving offences including Sec2on 307 IPC, which is a noncompoundable offence, and therefore, the object of such an agreement

¶19

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¶20

RSA-1843-2023 (O&M) [3]

¶21

was unlawful and hit by Sec2on 23 of the Indian Contract Act, 1872. Consequently, the suit for specific performance was dismissed.

¶22

The plain2ff preferred an appeal, but the learned First Appellate Court, aDer re-apprecia2ng the en2re evidence on record, affirmed the findings of the trial Court. The First Appellate Court observed that the agreement to sell contained recitals regarding delivery of possession but had not been registered, even though aDer the inser2on of Sec2on 17(1A) of the Registra2on Act, 1908, such a document required compulsory registra2on, if it was to be relied upon for the purposes of Sec2on 53-A of the Transfer of Property Act, 1882. Thus, the document itself suffered from a legal defect.

¶23

The First Appellate Court further found that the circumstances surrounding the execu2on of the agreement created serious doubt about its genuineness. The plain2ff and the aEes2ng witnesses of the agreement had appeared as witnesses in the criminal case against the defendant and turned hos2le, resul2ng in acquiEal of the accused. These circumstances indicated that the alleged agreement was executed as part of an arrangement connected with the compromise in the criminal proceedings.

¶24

The Appellate Court also no2ced that the plain2ff had failed to establish his financial capacity to pay such a large amount as earnest money. The scribe of the agreement admiEed in cross-examina2on that the alleged payment of ₹53,91,000/- was not made in his presence. The plain2ff was unable to show any bank withdrawal, sale of property, loan, or any other credible source from which such a huge amount could have been arranged. Consequently, the Court concluded that the recital regarding payment of earnest money was merely a paper transac2on.

¶25

The First Appellate Court thus held that even if such an

¶26

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¶27

RSA-1843-2023 (O&M) [4]

¶28

agreement had been executed, the object of the agreement was unlawful, being intended to screen the accused persons from the consequences of a serious criminal prosecu2on. Such an agreement would clearly fall within the mischief of Sec2on 23 of the Indian Contract Act, which renders void any agreement whose object or considera2on is unlawful or opposed to public policy.

¶29

I have heard learned counsel for the appellant and perused the record of the case.

¶30

At the outset, it must be no2ced that the present appeal is filed under Sec2on 100 of the Code of Civil Procedure, 1908, which confers limited jurisdic2on upon this Court. Interference in a second appeal is permissible only where the case involves a substan2al ques2on of law.

¶31

The Hon’ble Supreme Court in a catena of judgments has held that while the first appellate Court is the final Court of facts and is en2tled to re-appreciate the evidence on record, the jurisdic2on of the High Court in second appeal is limited and interference is permissible only when the findings recorded by the Courts below suffer from perversity or are based on misreading of evidence. The concurrent findings of fact recorded by the Courts below cannot be interfered with in second appeal unless such findings are shown to be wholly perverse or based upon no evidence. Besides, High Court cannot re-appreciate evidence in second appeal merely because another view may be possible.

¶32

In the present case, both the Courts below have concurrently recorded findings that the alleged payment of earnest money was not proved and that the circumstances surrounding the execu2on of the agreement clearly indicate that the document was executed in connec2on with compromise of a criminal case involving serious offences.

¶33

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¶34

RSA-1843-2023 (O&M) [5]

¶35

It is well seEled that the burden of proving payment of earnest money and the readiness and willingness to perform the contract lies upon the plain2ff seeking specific performance. In the absence of credible evidence regarding payment of considera2on and financial capacity of the plain2ff, the relief of specific performance cannot be granted.

¶36

Furthermore, an agreement whose object is to defeat the provisions of law or to screen an accused from criminal liability is clearly opposed to public policy and hit by Sec2on 23 of the Indian Contract Act. Such an agreement is void and unenforceable in law. The Courts below have rightly concluded that the alleged agreement falls within the ambit of this provision.

¶37

The concurrent findings recorded by the Courts below are based upon proper apprecia2on of the evidence and surrounding circumstances and do not suffer from any illegality, perversity or misreading of evidence so as to warrant interference by this Court.

¶38

Learned counsel for the appellant has not been able to point out any substan2al ques2on of law arising from the impugned judgments. 19. Consequently, finding no merit in the present appeal, the same is dismissed.

¶39

10.03.2026

¶40

Yogesh

¶41

(DEEPAK GUPTA) JUDGE

¶42

Whether speaking/reasoned:Yes/No Whether reportable:Yes/No

¶43

YOGESH MEHTA 2026.03.11 12:14 I attest to the accuracy and integrity of this document

Krishan Kumar v. Tajender and Anr.

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Krishan Kumar v. Tajender and Anr.

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