Dismissed

Bhagirath S/O Late Shri Gopal v. Laxminarayan S/O Late Shri Lalchand

Rajasthan HC7 May 2024CSA/55/2020

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Rajasthan dismissed a civil appeal challenging the dismissal of a suit for specific performance of an agreement to sale dated 1964. The appellant argued that the lower courts erred in law regarding the interpretation of a document and limitation. The Court held that the appeal did not involve any substantial question of law, as the dispute turned on factual findings regarding the execution and validity of the agreement, which were correctly affirmed by the courts below under Section 100 of the CPC.

What did the court decide?

The second appeal was dismissed, and the impugned orders of the Trial Court and the First Appellate Court were upheld.

Bhagirath S/O Late Shri Gopal Vs… — Civil Procedure and Limitation | Rajasthan HC (2024)

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[2024:RJ-JP:47866]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 55/2020

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Bhagirath S/o Late Shri Gopal, R/o Village Keshopura @ Kaishupura, Teh. Bassi, District Jaipur (Rajasthan)

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----Appellant

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Versus

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Laxminarayan S/o Late Shri Lalchand, R/o Gangarampura, At Present Resident Bassi, District Jaipur (Rajasthan)

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Ramgopal S/o Shri Kalyan Baksh, R/o Gangarampura, At Present R/o Jat Ke Kuye Ka Rasta, National Fire Works, Jaipur (Rajasthan)

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Smt. Kalyan W/o Kalyan Baksh, R/o Gangarampura, At Present R/o Jat Ke Kuye Ka Rasta, National Fire Works, Jaipur (Rajasthan)

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Kanhaiya S/o Shri Ramnarayan, R/o Gangarampura, At Present R/o Jat Ke Kuye Ka Rasta, National Fire Works, Jaipur (Rajasthan)

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Sitaram S/o Shri Shyochand, R/o Jagatpura, Teh. Sanganer, District Jaipur (Rajasthan)

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Ramdhan S/o Shri Nopa, R/o Gram Gator, Teh. Sanganer, District Jaipur (Rajasthan)

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Kalyani Widow Of Shrawan, R/o Village Gator, Teh. Sanganer, District Jaipur (Rajasthan)

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Raju S/o Shrawan, R/o Village Gator, Teh. Sanganer, District Jaipur (Rajasthan)

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Bhagwansahai S/o Late Shri Gopal, R/o Village Keshopura @ Kaishupura, Teh. Bassi, District Jaipur (Rajasthan)

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Lada D/o Late Shri Gopal, R/o Village Keshopura @ Kaishupura, Teh. Bassi, District Jaipur (Rajasthan)

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Keshar Widow Of Gopal, R/o Village Keshopura @ Kaishupura, Teh. Bassi, District Jaipur (Rajasthan)

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Prahlad S/o Late Shri Gopal, R/o Village Keshopura @ Kaishupura, Teh. Bassi, District Jaipur (Rajasthan)

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Pheliram S/o Late Shri Gopal, R/o Village Keshopura @ Kaishupura, Teh. Bassi, District Jaipur (Rajasthan)

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----Respondents

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[2024:RJ-JP:47866]	(2 of 19)	[CSA-55/2020]
For Appellant(s)	: Mr. Manak Chand Jain
For Respondent(s)	:

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Judgment / Order

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07/05/2024

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Instant appeal is preferred by one of the plaintiff-appellant aggrieved from dismissal of Civil Regular Appeal No.39/2018 (61/2009) by learned Additional District Judge No.2, Jaipur District, Jaipur on 25.09.2019, affirming the judgment and decree dated 02.02.2009 in Civil Suit No.38/1996 (129/1991) passed by learned Civil Judge (Junior Division), Jaipur District, Jaipur wherein the Trial Court has dismissed the suit for specific performance, declaration and permanent injunction preferred by the plaintiffs.

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Learned counsel for the appellant while relying upon grounds of appeal submitted that the legal heirs of Gopal has filed a suit for specific performance, declaration and injunction on the basis of agreement to sale dated 03.09.1964 executed by Ramnarayan on behalf of himself and also as karta of undivided Joint Hindu family. He also submitted that Ramnarayan and Lal Chand were two brothers in Joint Hindu family and one of them Lal Chand not having proper understanding so the entire land was looked after and managed by Ramnarayan as Karta. After receipt of sale consideration of ₹1,600/-, Ramnarayan has executed an agreement to sale and delivered the possession to Gopal (father and husband of plaintiffs). He also submitted that after the

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delivery of possession and execution of agreement, the plaintiffs are in possession of disputed agricultural land bearing Khasra No.26, Rakba 14 Bigha and 6 Biswa and no one has ever challenged the title and possession of plaintiffs. He also submitted that due to mental health disorder, Gopal could not pursue to execute sale deed but the plaintiffs have pursued the execution of sale deed during lifetime of Gopal but Ramnarayan has assured them for execution of sale deed. Later after death of Ramnarayan, the plaintiffs have requested legal heirs of Ramnarayan to execute the sale deed but they avoided execution of sale deed. He further submitted that after acquiring the knowledge of mutation on 17.08.1991 and threat by the defendants, the plaintiffs were constraint to file this civil suit for specific performance on the basis of agreement to sale. He further submitted that three witnesses were examined by the plaintiffs and PW2 is the deed writer, who drafted the agreement to sale. He further submitted that PW3 has corroborated that plaintiffs are in possession of the suit property. He also submitted that after execution of agreement to sale Ex.1 and payment of entire sale consideration, the title of land was passed upon plaintiffs. He also referred the delivery of possession to the plaintiffs and submitted that the plaintiffs are enjoying the suit property by using the same for their own purposes.

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He referred the findings of the Trial Court and the Appellate Court and submitted that both the Courts below have failed to consider that Ex.1 was executed in 1964 and same was proved by a person who drafted the agreement and also by the person who witnessed continues and uninterrupted possession of plaintiffs. He

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specifically referred the law of limitation and submitted that at no point of time, the defendants have denied specific performance of the contract and there was no time limit prescribed for specific performance. Thus, a suit can be filed at any time when plaintiffs have face the threat and apprehension. He also submitted that the Trial Court and the Appellate Court have committed serious error while interpreting agreement to sale and also the execution of document. He relied upon judgment in case of Uma Pandey & Anr. Vs. Munna Pandey & Ors. 2018(2) WLC (SC) Civil 262, and submitted that the interpretation of document is a substantial question of law, therefore, the appeal may be admitted.

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Heard learned counsel for the appellant, perused the entire record and also the judgment as referred by learned counsel for the appellant. 5. Six plaintiffs (legal heirs of Gopal) have filed a suit for specific performance, declaration and injunction against defendants on the basis of agreement to sale dated 03.09.1964 (Meeti Bhadwa Budi 12 Samvat 2021) in respect of an agricultural land Khasra No.26 Rakba 14 Bigha 6 Biswa. The plaintiffs have stated that Gopal (ancestor of plaintiffs) has purchased aforementioned agricultural land from Ramnarayan who was manager (karta) of hindu undivided family after making payment of ₹1,600/- as sale consideration. Ramnarayan has executed an agreement to sale on behalf of undivided joint hindu family. It was also mentioned that Lal Chand (brother of Ramnarayan) was also member of this joint hindu family and this agreement to sale was executed by Ramnarayan on behalf of Lal Chand as well. As per

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plaint Gopal was suffering from mental health disorder from 1966 to 1984 or till his death so he could not pursue execution of sale deed, in pursuance to agreement to sale. Some of the plaintiffs have pursue the specific performance of the agreement, but they could not succeed. The plaintiffs are cultivating the land during lifetime of Gopal. After death of Gopal and Ramnarayan, the plaintiffs have pursued the specific performance with legal heirs of Ramnarayan but they have avoided the execution of sale deed. According to plaint, the plaintiffs came to know about mutation entry of 17.08.1991 on basis of sale deed dated 11.04.1983. The plaintiffs on continues apprehension and threat has filed suit for specific performance on the basis of cause of action accrued upon them.

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The defendants have filed written statement in two sets raising several objections. The Trial Court has framed as many as six issues. Three witnesses were examined by the plaintiffs and five documents were exhibited by plaintiffs whereas DW1Kanhiyalal, was examined by the defendants.

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After considering the evidence on record, the Trial Court has decided issue nos.1 to 4 against the plaintiffs and concluded that agreement to sale Ex.1 was not proved. Issue no.5 relating to question of limitation was almost undecided as the Trial Court opined that agreement to sale Ex.1 was not proved, therefore, no need to consider period of limitation. Ultimately, the Trial Court has dismissed the suit filed by the plaintiffs.

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Out of six plaintiffs three have filed first appeal under Section 96 of CPC to challenge the judgment and decree dated

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02.02.2009, whereby the suit was dismissed. The Appellate Court remained firm on the issues as framed by learned Trial Court and decided the issues in same order as were decided by learned Trial Court. Thus, the findings on all issues remained the same and appeal was dismissed.

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Herein, only one plaintiff out of six has filed this second appeal to challenge the judgment of Trial Court and also of First Appellate Court.

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A perusal of entire material placed on record clearly indicate that the plaintiffs have claimed that the agreement to sale was executed on 03.09.1964 with respect to a land admittedly in the name of Ramnarayan and Lal Chand. As per plaint, the agreement to sale was neither signed by Lal Chand nor acknowledged by Lal Chand during his lifetime. There is no evidence on record to suggest that Lal Chand has ever endorsed agreement to sale dated 03.09.1964. After execution of agreement to sale on 03.09.1964, Gopal (ancestor of plaintiffs), in whose favour the agreement was executed could not pursue specific performance of the agreement as he was suffering from mental health disorder from 1966 onwards till his death. A fact is also available on record which clearly shows that Ramnarayan has expired in 1972. The plaintiffs have claimed that they were pursuing the specific performance since 1984, when they realized the threat of dispossession. A fact is also available on record that one/half share of this land was mutated on 17.08.1991 on the basis of sale deed on 11.04.1983 but no action was taken from 11.04.1983 to 23.11.1991 (date of filing of present suit).

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A perusal of evidence available on record also indicate that PW1 was neither a witness to agreement to sale nor a person in whose presence possession was delivered. Similarly PW3 has given an oral evidence of possession in favour of plaintiffs but in cross-examination he failed to spell out the details about the land and agreement. The only evidence available on record is PW2 and his cross-examination is not a very helpful in drawing a conclusion about the execution of Ex.1 agreement to sale in favour of plaintiffs, by Ramnarayan on behalf of Ramnarayan and Lal Chand. 12. The Trial Court after considering the issue no.1 has drawn a conclusion that the agreement to sale dated 03.09.1964 was not proved by the plaintiffs and this conclusion was affirmed by First Appellate Court. This is a question of fact and not relating to interpretation of any document. 13. Issue no.2 was also decided against the plaintiffs and it relates to readiness and willingness of plaintiffs in performing their part of contract for specific performance. Herein, the plaintiffs have claimed that the entire sale consideration was paid and possession of land was delivered to them. It is an admitted position that in 1964, the PW1 was born and he was not in a position to know about the agreement. The mother of PW1 has not turned up in witness box. The payment of sale consideration was also not established from evidence PW2. Moreover, no efforts were made during lifetime of Ramnarayan, to execute sale deed. The agreement to sale was not executed by Lal Chand (co-sharer in the land in question). The half share was already transferred by way of registered sale dated 11.04.1983 and the suit was filed in

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The Trial Court has concluded that the plaintiffs were not ready and willing to perform their part of contract and this issue was affirmed by the First Appellate Court and again this is a question of fact.

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Similarly issue nos.3 and 4 were decided against the plaintiffs and these issues were upheld by the First Appellate Court. The question of fact which was decided by the Trial Court has been upheld by the First Appellate Court. It is a settled proposition of law that the First Appellate Court is final Court to consider question of fact.

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Learned counsel for the appellant has referred judgment in case of Uma Pandey & Anr. Vs. Munna Pandey & Ors. (supra) wherein Hon’ble Supreme Court after considering an appeal from dismissal of second appeal has observed that the interpretation of document is a substantial question of law.

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Herein, the issue is not interpretation of document but it is a factual finding wherein agreement to sale Ex.1 was not proved. On facts both the Courts below have concurrent findings, therefore, this judgment is not applicable in the facts and circumstances of the case.

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Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a substantial question of law. Thus, the First Appellate Court is final court on facts and in second appeal normally cannot re-appreciate the evidence or facts.

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Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble

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Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs.

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Century Spg. and Mgf. Co. Ltd . AIR 1962 SC 1314, as under:

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"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

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Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC and summarised the law as under:

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The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which

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hinge on the application of this provision, we find it necessary to reiterate the principles.

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13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction.

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13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that: “At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more

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dice in the gamble”. The effect of the amendment

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mainly, according to the amended section, was:

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(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;

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(ii) The substantial question of law to precisely state such question;

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(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;

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(iv) Another part of the section is that the appeal shall be heard only on that question.”

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Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71

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13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:-

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a) Not previously settled by law of land or a binding precedent.

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b) Material bearing on the decision of case; and (c) New point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. Therefore, it will depend on facts of each case.

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Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and

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Chandrabhan v. Saraswati 2022 SCC Online SC

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1273

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13.4 Non-formulation of substantial question(s) of lawrenders proceedings “patently illegal”. This Court’s decisions in Umerkhan v. Bimillabi (2011)

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9 SCC 684 and Shiv Cotex v. Tirgun Auto Plast Pvt Ltd. & Ors. (2011) 9 SCC 678 indicate this position.

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Substantial questions of law, as framed by the High Court must be answered in light of the contentions raised therein.

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14.1 If the Court is of the view that a question framed is to be altered, deleted or a new question is to be added, then the Court must hear the parties. 14.2 For both the above principles, reference may be made to Gajaraba Bhikhubha Vadher v. Sumara Umar Amad (2020) 11 SCC 114 where the following principles were observed: -

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a) The substantial question of law framed by the High Court must be answered, with reasons. Disposing off the appeal without answering the same cannot be justified.

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b) If a need is felt to modify, alter or delete a question, a hearing must be provided to the parties in respect thereof.

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14.3 When the case is admitted, but upon hearing when it is found that no substantial question of law arises for consideration, reasons should be recorded in such dismissal.

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In Kichha Sugar Co. Ltd. v. Roofrite (P) Ltd

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(2009) 16 SCC 280 it was observed:

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“4. Our attention is drawn by the learned counsel for the respondents to the provisions of Section 100(5) of the Civil Procedure Code where the respondent to a second appeal is permitted “to argue that the case does not involve such question” i.e. the questions formulated earlier. No doubt, but then the order on the second appeal should indicate, howsoever briefly, why the questions formulated at the earlier stage had, at the stage of final hearing, been found to be no questions of law.”

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Substantial questions should ordinarily, not be framed at a later stage. If done so, then parties must be given an opportunity to meet them. This Court in

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U.R. Virupakshappa v. Sarvamangala (2019) 2 SCC 177 held:

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“15. It, furthermore, should not ordinarily frame a substantial question of law at a subsequent stage without assigning any reason therefor and without giving a reasonable opportunity of hearing to the respondents. [See Nune Prasad v. Nune Ramakrishna [(2008) 8 SCC 258 : (2008) 10 Scale 523] ; Panchugopal Barua v. Umesh Chandra Goswami [(1997) 4 SCC 713] (SCC paras 8 and 9); and Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438] (SCC paras 10 and 12)].

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The High Court, in this case, however, formulated a substantial question of law while

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dictating the judgment in open court. Before such a substantial question of law could be formulated, the parties should have been put to notice. They should have been given an opportunity to meet the same. Although the Court has the requisite jurisdiction to formulate a substantial question of law at a subsequent stage which was not formulated at the time of admission of the second appeal but the requirements laid down in the proviso appended to Section 100 of the Code of Civil Procedure were required to be met.”

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16.1 This Court in Mehboob-Ur-Rehman v. Ahsanul Ghani , (2019) 19 SCC 415 observed in respect of application of Section 100(5) CPC as under:-

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a) It is not rule under proviso to sub-section (5) to hear any other substantial question of law irrespective of the question(s) formulated, so as to annul other requirements of S. 100, CPC.

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b) Proviso to come in operation in exceptional cases where reasons are to be recorded by High Court.

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16.2 It has further been held that the application of this section is only when some questions, substantial in law, already stand framed. (B.C. Shivashankara v. B.R. Nagaraj ) (2007) 15 SCC 387.

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16.3 Wrong application of law laid down by the Privy Council, Federal Court or the Supreme Court, will not qualify for substantial question of law and neither wrong application of facts.

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16.4 If on an issue, the trial court discusses the evidence but does not return a finding thereon, High Court in jurisdiction under Section 100, CPC may do

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so. Reference be made to Govindbhai Chhotabhai

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Patel v. Patel Ramanbhai Mathurbhai (2020) 16 SCC 255

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This Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722 , observed-

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“6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law…”

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16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not

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permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse.

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b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity.

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c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection.

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Jurisdiction under second appeal not to be exercised merely because an alternate view is possible. It was observed in Hamida v. Mohd.

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Khalil (2001) 5 SCC 30

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…The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible.”

¶140

This position was reiterated by Avtar Singh & Ors.

¶141

v. Bimla Devi & Ors (2021) 13 SCC 816.

¶142

17.1. In aid of such a restricted application, an essential aspect in ensuring that it does not acquire the nature of a “third appeal” is the limited possibility of appreciation of evidence and connectedly, the restriction on upturning concurrent findings of fact. However, there are certain exceptions to the rule as pointed out by this Court in

¶143

Nazir Mohamed v. J. Kamala (2020) 19 SCC 57

as under:

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“33.4. The general rule is, that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well recognised exceptions are where:

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(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”

¶150

17.2 The extent of the same may be underscored by the observation that:

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“32. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in V. Ramachandra Ayyar v. Ramalingam Chettiar [V. Ramachandra Ayyar v. Ramalingam Chettiar , AIR 1963 SC 302] . An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.”

¶152

In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC

¶153

405 , Hon’ble Supreme Court explained the purpose of framing question of law in following manner:

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“a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question.

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b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon.

¶159

c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.”

¶160

Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:-

¶161

“(i) the courts below have ignored

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material evidence or acted on no evidence;

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(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.”

¶164

After considering the legal position to entertain the second

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appeal under Section 100 of CPC it is necessary that the Court must opine that there is a substantial question of law which requires adjudication. Thus, without formulating a substantial

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question of law an appeal cannot be entertained in view of provisions under Section 100 of CPC.

¶170

After considering the entire material on record, I am of considered view that the grounds raised by learned counsel for the appellant does not give rise to any substantial question of law, therefore, this second appeal sans merits.

¶171

In view of the above, the second appeal is hereby dismissed.

¶172

Misc. application(s), if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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Arun/639

Bhagirath S/O Late Shri Gopal v. Laxminarayan S/O Late Shri Lalchand

Case brief

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Bhagirath S/O Late Shri Gopal v. Laxminarayan S/O Late Shri Lalchand

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What did the court decide?

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