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BHULAN SINGH versus SMT. BIMLA DEVI

High Court of Judicature at Allahabad

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Bhulan Singh v. Smt. Bimla Devi - SECOND APPEAL No. 917 of 2006 [2006] RD-AH 19092 (13 November 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 24

Second Appeal No. 917 of 2006

Bhulan Singh Vs. Smt. Bimla Devi

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the parties.

This second appeal arises out of the judgment dated 27.7.2006 passed by the lower appellate court reversing the judgment of the trial court, which had dismissed the suit for specific performance of contract of the plaintiff respondent.

The plaintiff respondent filed a suit for specific performance of contract setting up an agreement of sale dated 03.01.1983 allegedly executed by the appellant defendant. The plaintiff stated that the defendant had agreed for transfer of disputed property in her favour on payment of certain consideration out of which a sum of Rs. 5,000/- was received by him as earnest money. The period during which the sale deed was to be executed was fixed for three years. In-spite of plaintiff's repeated requests and reminders to the defendant through her husband when the sale deed was not executed, a notice dated 24.6.1988 was given but that too was refused. Thereafter the suit was filed.

The suit was contested by the appellant defendant stating that no such agreement of sale was executed by him. In fact, this was got executed by the plaintiff's husband by putting the defendant under influence of liquor and he had never received any earnest money in pursuance thereto. He could become aware of this agreement deed later on and his thumb impression was taken on the document while he was in intoxicated state. The plaintiff claims that she was always willing to perform her contract and get the sale deed executed. The sale deed was also denied by the defendant. It was further pleaded that no notice was ever given or served  upon him.

On the pleadings of the parties, the trial court framed as many as six issues in this case. The trial court recorded the findings that this agreement of sale was genuinely executed and it is not a forged document. The court also found that the earnest money, as alleged, was received by the defendant. It is further found that the suit was not barred by limitation but while deciding the issue No. 1, the court held that the plaintiff was not always ready and willing to perform her part of contract and get the sale deed executed. Therefore, finding this infirmity in the plaintiff's case, the court refused to grant the relief of specific performance of contract and the suit was dismissed. The plaintiff preferred an appeal against this judgment and the appellate court, while concurring with the findings of the trial court recorded on the  issue by the trial court, had differed from the findings recorded with regard to issue No. 1. The trial court had held that the plaintiff was not alway ready and willing to perform her part of contract. The lower appellate court found from the facts and circumstances and from the evidence as available on record, that the plaintiff was always ready and willing to perform her part of contract and the trial court's findings recorded have been reversed. The judgment and decree passed by that court were also set aside and the suit has been decreed.

It is argued by the learned counsel for the appellant that the circumstances, which have been discussed by the lower appellate court for recording its finding that the plaintiff was always ready and willing to get the sale deed executed and perform her part of contract, are not such circumstances, which can reasonably justify such findings and therefore, these findings are erroneous and give rise to substantial question of law for decision in this appeal.

I do not agree with the submission of the learned counsel for the appellant. The trial court for recording finding of fact that the plaintiff was not always ready and willing to perform her part of contract and get the sale deed executed, has though, discussed certain facts and circumstances appearing in the case but the lower appellate court for the purposes to reverse these findings of the trial court has considered this aspect of the matter from different angles, which are fully supported by the evidence. A detailed discussion has been recorded by the court below and these findings of both the courts are nothing but factual findings. The reasonings, which have been recorded by the lower appellate court for holding that the plaintiff was ready and willing to perform her part of contract, are wholly based upon the factual aspect of the matter available in the evidence. The court below thus, cannot be held that the findings recorded by it are wholly perverse and without basis and against the evidence. The non-availability of notice alleged to have been given by the plaintiff to the defendant to execute the sale deed, is not such a circumstance, which can be given weight as to hold that the plaintiff was not at all willing to get the sale deed executed in her favour. Several other circumstances are available on record, which have been elaborately discussed by the lower appellate court while recording its finding. Since all these findings are factual findings, there is hardly any scope for this court in second appeal to interfere against the same. No substantial question of law is arising in the present appeal as to occasion its admission.

The appeal is without substance and is accordingly dismissed.

13.11.2006

gp/


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