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ISTIYAQ KHAN@CHAMMAN KHAN versus RAM SWAROOP

High Court of Judicature at Allahabad

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Istiyaq Khan@Chamman Khan v. Ram Swaroop - SECOND APPEAL No. 3200 of 1980 [2006] RD-AH 3526 (15 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.9    

Second Appeal No.3200 of 1980

Ishtiaq Khan

                                     .............Plaintiff-Appellant

Vs.

Ram Swarup (since deceased) substituted by

his heirs & Legal Representative Shri Prem & others

.........Defendant-Respondent

Hon. Sunil Ambwani, J.

Heard Shri P.M.N. Singh, Senior Advocate assisted by Shri T.C. Sharma for appellant, and Shri V.S. Chaudhary for respondent.   The second appeal arises out of the concurrent judgments passed by the trial Court and the appellate Court dismissing the suit for specific performance of contract.

The trial Court found that the agreement is forged  in as much as plot number mentioned in the agreement dated 11.2.1964 was not in existence and was only a proposed plot. Further it was not recorded in the name of the defendant.  Her mother Smt. Chunia was recorded as owner of the land and that the defendant succeeded to the land only after her death in the year 1968.

The defendant had contested the suit on the ground that he did not execute the agreement. He had infact put his thumb impression on five stamp papers, which he had given to Shri Abdul Aziz.  for taking loan.

The appellate Court in its judgment dated 10.10.80, in Civil Appeal No.165/78, affirming the judgment of the trial Court dated 5.7.78 in Original Suit No.82 of 1974 recorded following findings:

(1) The agreement to sell is dated 11.2.68.  On that  date plot No.66 for which the agreement was executed was not in existence. It was only a proposed plot, to be allotted by the consolidation authorities.

(2) On the date the agreement was executed, Smt. Chunia, the mother of the defendant was the owner of the Chak and that the defendant actually became owner in 1968 after her death.

(3) There was no reason for the plaintiff to have waited for more than 10 years after the agreement to have filed a suit for specific performance of contract specially when Bhumidhari Sanad could be obtained by the defendant within a year or so.

(4) The defendant became the owner of the land in 1968 only.  He became Bhumidhar in 1963.  The suit under Section 209 of the Zamindari Abolition & Land Reforms Act, 1950 filed by the defendant for plaintiff's dispossession was dismissed on the ground that possession was given in pursuance of the agreement.

(5) Shri Abdul Aziz from whom the defendant is alleged to have taken loan, was not produced as witnesses by the plaintiffs.

(6) The stamp paper of Rs.5/- used for executing agreement to sell was not purchased in the year 1964.    There was absolutely no necessity of writing an agreement to sell in 1964 on the stamp paper.  This legal requirement was introduced by the statute in 1969.

The appellate Court, as such, held as follows:

"Considering the entire evidence on record and in view of the above discussion, I hold that the plaintiff failed to prove that the defendant actually executed the agreement to sell for the land in suit plot No.66 on  11.2.1966 for a consideration of Rs.3000/-.  It is also not proved that a consideration of Rs.2500/- was paid by the plaintiff to the defendant on that date, and further that the plaintiff was delivered actual possession of the land in suit on the date of the agreement to sell in part performance of the agreement.  The view taken by the learned Munsif below on these issues is, therefore, correct."

The second appeal was admitted only on one question namely ground No.7, which is quoted as below:

"Because in the absence of a plea raised in the written statement that the defendant- respondent was not the owner of the land in dispute in the year 1964, the Courts below committed substantial error of law in holding that in the absence of any evidence about the said fact, the same was a circumstance against the appellant."

Learned counsel for the plaintiff-appellant submits that ground No.2 may also be considered as substantial question of law, inter alia that in the appellate Court the record of consolidation authorities was summoned, in which the proposed plot was shown as plot No.66, and this fact was known to the parties.   He further submits that the plaintiff was enjoying possession since the date of agreement  and the fact that the suit was filed in 1973 cannot be a ground to deny the relief.   It was for the defendant to have produced Abdul Aziz and not the plaintiff.    He further submits that the defendant has not taken any plea in the written statement that  he was not the owner of the land.  No issue was framed on this ground, and thus the Trial Court and the Appellate Court grossly erred in law in holding that defendant was not the owner of the land.   He further submits that the judgments suffer from gross perversity and requires to be set aside by the Court.   He has relied upon the judgment in Dalip Singh Vs. Mehar Singh Rathee and others, 2005 AIR SCW 3311 and Jagdish Singh Vs. Natthu Singh, AIR 1992 SC 1604.  The judgment in Dalip Singh has been relied upon in support of the submission that where no plea has been taken in the written statement, no issue was framed and no evidence was led, new point cannot be taken in first appeal.    In Jagdish Singh the Supreme Court held that High Court can re-appreciate the evidence  if the findings by the Court of facts  are vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter.  

Section 100 of Code of Civil Procedure was amended by Section 37 of Act No. 104 of 1976 and came into effect from 1.2.1977. The amended code provides for  a Second Appeal  to the High Court from  every decree passed in appeal,  by any court subordinate to the Court, only if  the High Court is satisfied that the case involves  a substantial question of law. The memorandum of appeal under sub section (3)  is required to precisely state the substantial question of law involved in the appeal. The High Court under sub Section (4) if satisfied that a substantial question of law is involved  in the case, shall  formulate the question. Further sub section  (5) mandates that the appeal shall be heard on the question so formulated,  and the respondents shall at the hearing of the appeal be allowed to argue that the case does not involve such question. The proviso, however, reaffirms the powers of the  Court,  to hear,  for reasons to to recorded the appeal on any other substantial question of law not formulated by it, if it is satisfied,  that the case involves such question. The High Court, however, must record reasons for formulating  such question at the stage of hearing.

In Govindarau Vs. Mariamman (2005) 2 SCC 500, the Supreme court held that the substantial question of law is 'sine qua non' for exercise of jurisdiction under Section 100 of the CPC and relied upon the judgements in Kshitish Chandra Purkait v. Sandosh Kumar Purkait (1997) 5 SCC 438;  Panchugopal Barua vs. Umesh Chandra Goswami (1997) 4 SCC, 713;  Kondiba Dagadu Kadam vs. Savitribai Sapan Gujar (1999) 3 SCC 722, and  traced out the background and reasons  for adding such on restriction in section 100 CPC. It referred to Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179,  in which the purpose which necessitated and persuaded the Law Commission of India to recommend for the amendment of Section 100 was referred, to and the meaning of 'Substantial question of law' is explained as follows

"14. As to which would constitute a substantial question of law, it was observed: (SCC pp. 187-88, para 14)

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material  bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question  should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. 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. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

The judgement was followed in Thiagrajan vs. Shri Venugopalaswamy B. Coil (2004) 5 SCC 762. In Phool Patta vs. Vishwanath Singh (2005) 6 SCC 40, the Supreme Court held that the High Court could have heard the second appeal on any question not formulated by it, only after formulating such question, for reasons to be recorded, and not otherwise.

I have gone through the judgments very carefully.  I find that both the parties led evidence on the issue of ownership of the land as in the year 1964.  The Trial Court came to conclusion from the revenue records that the defendant was not the sole owner of the land.  Further the record of the consolidation Court demonstrated that plot number mentioned in the agreement dated 11.2.1964 was only a proposed plot and was not allotted to the defendant on that date.   These findings coupled with the fact that the plaintiff waited for almost nine years to file the suit, during which he did not give any notice or information to defendant to deposit ten times of the land revenue to obtain Bhumadhari Sanad, and filed the suit only when the plaintiff had to save his own possession in suit under Section 209 of the Zamindari Abolition and Land Reforms Act, 1950, are sufficient to have discarded the validity of the agreement.   At the time when the agreement was executed the law did not require it to be written on a stamp paper.  The plaintiff could have produced Abdul Aziz and led evidence to establish that defendant had not taken any loan from him.   All these are essentially findings of fact to establish that the agreement was in fact prepared much after the alleged date, on which it is said to be executed.

The second appeal in my opinion does not raise any substantial question of law, or the one which was framed at the time of its admission.  It does not call for interference and is accordingly dismissed with costs against the plaintiff, throughout the proceedings of the suit, upto this Second Appeal.

Dt.15.2.2006

SP/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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