Telangana High Court
S.Megha Reddy, vs P. Narayan Reddy Died Per L.Rs. on 19 June, 2023
THE HON'BLE SRI JUSTICE A.SANTHOSH REDDY
SECOND APPEAL No.681 OF 2013
JUDGMENT:
This second appeal is filed under Section 100 of the Civil Procedure Code, 1908 (for short "CPC) by the unsuccessful defendant assailing the concurrent findings of the trial Court in O.S.No.257 of 2006 and the appellate Court in A.S.No.17 of 2012.
2. Heard Sri V.R.N.Prasanth representing M/s.Indus Law Firm, learned counsel for the appellant-defendant and Sri N.Vasudeva Reddy, learned counsel for the respondents-plaintiffs. Perused the record.
3. For the sake of convenience, the parties hereinafter referred to as the plaintiffs and defendant as arrayed in the suit.
4. Necessary facts for disposal of this appeal are as under:
The suit filed by the respondents-plaintiffs before the Senior Civil Judge's Court at Vikarabad is one for the specific performance of agreement of sale dated 29.06.2002 against the appellant-defendant to 2 execute the registered sale deed in their favour conveying the suit schedule land admeasuring Ac.09-00 guntas out of total extent of Ac.10-19 guntas situated at Parvathapur Village, Thandur Mandal, Ranga Reddy District.
The defendant was the owner, possessor and pattedar of the agricultural land admeasuring Ac.10-19 guntas in Sy.No.49 situated at Parvathapur Village, Tandur Mandal and offered to sell an extent of Ac.09-00 guntas ( hereinafter referred to as "subject land") in favour of plaintiff No.1 for a total consideration of Rs.2,83,500/- @ Rs.31,500/- per acre. Plaintiff No.1 accepted the same and paid entire consideration on 29.06.2002 and the defendant executed agreement of sale in his favour after receipt of the amount and put him in vacant possession of the subject land. The defendant agreed to execute registered sale deed as and when demanded by plaintiff No.1. Inspite of several demands made by plaintiff No.1, the defendant failed to execute the registered sale deed in pursuance of the agreement of sale on one or other pretext. The defendant filed O.S.No.53 of 2003 against the plaintiff No.1 and his wife before the Junior Civil Judge's Court, Tandur suppressing the 3 agreement of sale and receipt of consideration in favour of plaintiff No.1. I.A.No.138 of 2003 was also filed in the said suit. The defendant filed written statement and counter in I.A.No.138 of 2003. The Junior Civil Judge passed order on 28.12.2005. Against which, plaintiff filed CMA No.2 of 2006 before this Court, wherein this Court was pleased to grant status-quo and the CMA is pending. The defendant by taking advantage of order in I.A.No.138 of 2003 was trying to interfere with the possession of the plaintiff over the subject land. Hence, the suit.
5. The defendant filed written statement contending inter alia that he is the exclusive owner and possessor of the land in Sy.No.49 admeasuring Ac.10-19 guntas situated at Parvathapur Village. The defendant never executed any agreement of sale in favour of plaintiff No.1 at any point of time and there was no occasion arose for him to sell the subject land to him. It is also stated that the defendant has not executed any agreement of sale and he has not received any consideration and the possession was also not delivered to plaintiff No.1 at any time. Hence, he prayed to dismiss the suit with costs.
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6. Basing on the above pleadings, the following issues were framed for trial:
1. Whether the plaintiff entered into an agreement of sale with the defendant on 29.06.2002?
2. Whether the plaintiff paid the entire sale consideration of Rs.2,83,500/- and the defendant passed a receipt?
3. Whether the agreement of sale and receipt are forged and fabricated one?
4. Whether the defendant delivered the possession of suit land to the plaintiff as on the date of agreement of sale?
5. Whether the plaintiff is entitled to seek the relief of specific performance of agreement of sale?
6. To what relief?
7. On behalf of the plaintiffs, PWs 1 to 3 were examined and got marked Exs.A.1 and A-2 on their behalf. On behalf of the defendant, though chief affidavit of DW.1 was filed, he did not turn-up for cross-examination. No documents were marked on his behalf.
8. The trial Court after considering the oral and documentary evidence decreed the suit of the plaintiffs directing the defendant to execute the registered sale in favour of the plaintiffs in respect of the subject land in pursuance of the agreement of sale, dated 29.06.2002, within two 5 months and failing which, the plaintiffs are at liberty for registration through process as per law. The trial Court also granted consequential injunction in favour of the plaintiffs.
9. Having aggrieved by the said judgment and decree, the defendant preferred appeal before the appellate Court in A.S.No.17 of 2012 before the Additional District Judge, Vikarabad, Ranga Reddy District.
10. The appellate Court framed only point for consideration i.e. "whether the appellant is entitled for setting aside the decree and judgment in O.S.No.257 of 2006" and on re-appreciation of material evidence on record dismissed the appeal confirming the judgment and decree of the trial Court.
11. Challenging the said decision, the defendant has come to this Court with this Second Appeal.
12. Learned counsel for the appellant-defendant submits that both the Courts below have committed serious error on facts and law in decreeing the suit filed by the plaintiff without affording an opportunity to the 6 defendant to adduce evidence to substantiate his case. There was no reliable evidence on record to pass the decree in favour of the plaintiffs.
13. Learned counsel for the appellant-defendant also submits that the appellate Court has not framed the proper points for consideration as required under Order 41 Rule 31 of C.P.C. before passing the impugned judgment and decree. As such, he prayed to set aside the impugned judgment and decree and remand the matter to the appellate Court for framing necessary points and affording opportunity to both the counsel to advance arguments and to decide the appeal on merits. Learned counsel has placed reliance on the decisions of Vinod Kumar v.
Gangadhar1 and Malluru Mallappa (Dead) through legal representatives v. Kuruvathappa2.
14. Learned counsel for the respondents-plaintiffs submits that there are concurrent findings of fact by both the Courts below and both the Courts below have believed the execution of documents under Exs.A.1 and A.2 by the defendant. He also submits that both the Courts below have 1 (2015) 1 Supreme Court Cases 391 2 (2020) 4 Supreme Court Cases 313 7 properly appreciated the facts and circumstances of the case and rightly decreed the suit. There is no illegality committed by both the Courts and as such, there is no need or necessity to remand the matter back to the appellate Court. Hence, he prayed to dismiss the present second appeal. Learned counsel has placed reliance on the decisions of Kirpa Ram through legal representatives v. Surendra Deo Gaur3, Gurnam Singh (Dead) by legal representatives v. Lehna Singh (Dead) by legal representatives4, Ahmadsahab Abdul Mulla (dead) by proposed LRs. v. Bibijan5 and Harjas Rai Makhija (dead) through legal representatives v. Pushparani Jain6.
15. I have considered the judgments and decrees of both the Courts below and the submissions made on either side have received due consideration of this Court.
16. The powers of the appellate Court while deciding the first appeal under Section 96 read with Order 41 Rule 31 of the C.P.C. are well defined by various judgments of the Apex Court.
32020 SCC OnLine SC 935 4 (2019) 7 Supreme Court 641 5 (2009) 5 Supreme Court Cases 462 6 (2017) 2 Supreme Court Cases 797 8
17. In Vinod Kumar's case (1 supra), the Apex Court at para No.15 held as under:
"15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808] , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 : (2001) 1 SCR 948] , SCC p. 188, para 15 and Madhukar v. Sangram [(2001) 4 SCC 756 : AIR 2001 SC 2171] SCC p. 758, para 5.)......"
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18. In Gurnam Singh's case (4 supra), the Apex Court at para Nos.13.1 and 15.15 held as under:
13.1. The suspicious circumstances which were considered by the learned trial court are narrated/stated hereinabove. On reappreciation of evidence on record and after dealing with each alleged suspicious circumstance, which was dealt with by the learned trial court, the first appellate court by giving cogent reasons held the will genuine and consequently did not agree with the findings recorded by the learned trial court. However, in second appeal under Section 100 CPC, the High Court, by the impugned judgment and order has interfered with the judgment and decree passed by the first appellate court. While interfering with the judgment and order passed by the first appellate court, it appears that while upsetting the judgment and decree passed by the first appellate court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that the High Court has not at all appreciated the fact that the High Court was deciding the second appeal under Section 100 CPC and not first appeal under Section 96 CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of "a substantial question of law"
is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. As observed and held by this Court in Kondiba Dagadu Kadam [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722] , in a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
or
(ii) Contrary to the law as pronounced by the Supreme Court; or
(iii) Based on inadmissible evidence or no evidence. 10 It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal.
15.1. As observed hereinabove and as held by this Court in a catena of decisions and even as per Section 100 CPC, the jurisdiction of the High Court to entertain the second appeal under Section 100 CPC is confined only to such appeals which involve a substantial question of law. On going through the substantial questions of law framed by the High Court, we are of the opinion that the question of law framed by the High Court while deciding the second appeal, cannot be said to be substantial questions of law at all. The substantial questions of law framed by the High Court are as under:
"(i) Whether the appellate court can reverse the findings recorded by the learned trial court without adverting to the specific finding of the trial court?
(ii) Whether the judgment passed by the learned lower appellate court is perverse and outcome of misreading of evidence?"
The aforesaid cannot be said to be substantial questions of law at all. In the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside. At this stage, decision of this Court in Madamanchi Ramappa v. Muthaluru Bojjappa [Madamanchi Ramappa v. Muthaluru Bojjappa, AIR 1963 SC 1633] , is required to be referred to."
19. Having considered the judgments, in the present case, at the outset going by the contentions of the learned counsel for the defendant, it emerges that the appellate Court disposed of the matter in a cryptic manner without adverting to the full details and various grounds raised in the appeal. It was duty of the appellate Court to exercise its powers under Order 41 Rule 31 C.P.C. to deal with all the issues and the 11 evidence led by the parties before recording its findings after appreciation of entire evidence on facts, independent of findings of the trial Court and come to its own conclusion keeping in view all the legal principles.
20. In view of the above legal principles, on going through the impugned judgment, it is evident that the appellate Court has framed only point for consideration as to whether the appellant is entitled for setting aside the decree and judgment in O.S.No.257 of 2006 and dismissed the appeal under the impugned judgment, which is cryptic and none of the relevant aspects have even been dealt with. More particularly, it is the contention of learned counsel for the defendant that no proper opportunity was afforded to the defendant to advance the arguments before the trial Court and the same was, though urged before the appellate Court, it was not properly considered by it. It emerges that the appellate Court has not framed the proper points for consideration and it has not followed the provisions of Order 41 Rule 31 of C.P.C. The appellate Court neither dealt with any issue nor appreciated the oral 12 and documentary evidence adduced by both the parties in proper manner.
21. Apart from making above submissions, it was also submitted by learned counsel for the appellant that though it was urged in the grounds appeal before the appellate Court that the agreement of sale under Ex.A.1 dated 29.06.2002 and the limitation to approach the Court is within three years, but, the suit was filed on 13.04.2006 after expiry of three years. As such, the suit was barred by limitation. The appellate Court has not seriously gone into those aspects by framing a separate point on it.
22. I am of the considered opinion that the appellate Court did not deal with the submissions made by the learned counsel for the appellant nor it took any of the grounds urged by the appellant before it in the grounds of appeal nor made any attempt to appreciate the evidence adduced by both the parties by framing proper points for determination. In the light of settled legal principles and decided case law applicable to the issues arising in the case with a view to find out whether the 13 judgment of the trial Court can be sustained or not, a duty casts upon the appellate Court to decide the first appeal keeping in view of the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 of CPC mentioned above. But, the same was not done by the appellate Court, thereby, resulting in causing prejudice to the appellant to prosecute the appeal on facts and law. Therefore, I am unable to decide the second appeal on merits. However, in the facts and circumstances and evidence, I am of the view that the impugned judgment and decree is liable to be set aside.
23. In the result, the second appeal is allowed. The impugned judgment and decree, dated 24.04.2013, in A.S.No.17 of 2012 on the file of Additional District Judge, Vikarabad, Ranga Reddy District is hereby set aside. The case is remanded to the appellate Court for deciding the first appeal afresh, keeping in view the principles of law laid down by the Apex Court quoted supra. The appellate Court is directed to decide the appeal on merits, in accordance with law, uninfluenced by any of the observations made by this Court. The appellate Court shall afford opportunity of hearing to both parties and dispose of the appeal as 14 expeditiously as possible preferably within a period of three months from the date of receipt of a copy of this judgment. However, in the circumstances of the case, there shall be no order as to the costs.
As a sequel, interlocutory applications, if any pending in this second appeal, shall stand closed.
________________________ A. SANTHOSH REDDY, J 19.06.2023 Nvl 15