Allahabad High Court
Ram Gopal And 3 Others vs Ratan Chandra Jain And 10 Others on 20 October, 2020
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 10 Case :- SECOND APPEAL No. - 451 of 2020 Appellant :- Ram Gopal And 3 Others Respondent :- Ratan Chandra Jain And 10 Others Counsel for Appellant :- Imran Khan,Javed Husain Khan Counsel for Respondent :- Rishikesh Tripathi Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Imran Khan, learned counsel for the appellants and Sri Rishikesh Tripathi, learned counsel for respondent nos.1/1, 1/2, 1/3, 1/4 and 1/5.
2. This is plaintiff's appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") arising out of judgment and decree dated 14.07.2020 passed by Additional District Judge-IV/Special Judge (E.C.Act), Banda dismissing Civil Appeal No.47 of 2016 and against the judgment and decree dated 20.9.2016 passed by Civil Judge (Junior Division)/F.T.C., Banda dismissing Suit No.89 of 2014.
3. Plaintiff Ram Gopal filed Original Suit No.89 of 2014 against the defendant-respondents for cancellation of registered agreement to sale dated 09.01.2013. According to the plaint, plaintiff Ram Gopal (since deceased) was the owner in possession of disputed land comprising Gata No.5258, 5267 and 5260 measuring 0.239 hectare situated in Village Mavai Bujurg, Pargana and District Banda. It was stated that defendant-respondent nos.2 and 4 were the land brokers and had agreed to sell two plots of plaintiff for Rs.12 lakhs on 18.12.2012 and had obtained an agreement to sale in favour of Manoj Kumar Kushwaha in respect of entire land on Rs.10/- stamp paper and an advance of Rs.10,000/- was paid. It is further stated that on 07.01.2013, the defendant nos.2 and 4 again came to the house of plaintiff and said that an advance of Rs.1 lakh will be given to him, if he brings his son to Tehsil and make signature on the agreement. According to the plaintiff, he along with his son were taken to the seat of Deed Writer Hari Ram Singh where an advance of Rs.1 lakh was paid to him and an agreement was typed on Rs.100/- stamp paper and defendant no.1 was shown as a purchasor. It is also stated that it was told to the plaintiff that an application has to be moved for converting the land, which was recorded as bhumidhari with non-transferable right to bhumidhari with transferable right. On that pretext the plaintiff was taken to the office of Registrar and fraudulently an agreement to sale was registered for the entire land for just Rs.3,10,000/-.
4. The defendant-respondents appeared and contested the suit by filing their written statement denying the plaint allegations. Defendant -respondent no.1 categorically stated in his written statement that the plaintiff along with his sons had approached him in the first week of January, 2013 and expressed his desire to sell the entire land for a total sale consideration of Rs.3,10,000/- on which an agreement to sale was executed on 09.01.2013. It is also stated that out of the said amount of Rs.3,10,000/- total amount of Rs.3 lakhs were paid on the date on which agreement to sale was executed and the balance amount of consideration of Rs.10,000/- was to be paid at the time of execution of sale deed. It was also agreed that the sale deed will be executed within three years, once the plaintiff acquires the transferable right over the land in dispute.
5. The Trial Court framed 11 issues and issue nos.1 and 11 were in relation to, whether the plaintiff had the right to get the registered agreement to sale cancelled and whether the plaintiff had the right of executing the said document being bhumidhar with non transferable right?
6. The Trial Court, after detailed discussion, found that the plaintiff failed to prove his case and could not place any document or evidence to substantiate that it was a case of fraud and defendant nos.2 and 4 had obtained the agreement to sale without the consent of the plaintiff. Further the Trial Court recorded a categorical finding that the oral testimony of PW-1, PW-2 and PW-3 also did not deny the factum of execution of agreement to sale on 09.01.2013 in their cross-examination. As far as issue no.11 is concerned, Trial Court recorded a categorical finding that the provisions of Section 131-B(2) of U.P.Zamindari Abolition and Land Reforms Act, 1950 provides that the lease (Patta) holder will automatically become bhumidhar with transferable right on the expiry of 10 years from his becoming a bhumidhar with non-transferable rights. The scope of Section 54 of Transfer of Property Act, 1882 was also discussed and it was held that by merely entering into agreement to sale, no interest in the property is created in favour of the vendee and the proprietary title does not validly pass from vendor to vendee.
7. Against the said decision, Civil Appeal No.47 of 2016 was filed by the appellant and the Lower Appellate Court in para 5 categorically recorded that though number of issues were framed before the Court below, the only relevant issue which has been raised by the appellant and to be settled in the appeal was, whether the appellant had right to get the agreement to sale declared null and void based on the fraud played upon him i.e. issue nos.1 and 11 mainly.
8. The Lower Appellate Court after recording a categorical finding found that agreement to sale was undenyable, executed between the parties on 09.01.2013 and the plaintiff has failed to make out a case of fraud being played upon him and appeal was dismissed.
9. Sri Imran Khan, learned counsel for the appellant has only raised the substantial question of law that the Lower Appellate Court erred in not complying with the mandatory provisions of Order 41 Rule 31 C.P.C. and as such the judgment of Lower Appellate Court cannot be sustained. Reliance has been placed by him upon the decision of Apex Court in the case of Malluru Mallappa (D) thr. L.Rs. vs. Kuruvathappa and Ors. (2020) 4 SCC 313 wherein the Apex Court in para 20 has held as under :
20. Keeping in mind the above principles, let us examine the present case. As stated above, the issue relating to readiness and willingness of the Plaintiff to perform his part of the contract and issue relating to limitation were held against the Plaintiff and the suit was accordingly dismissed. The appeal before the High Court involved both disputed questions of law and fact. The High Court without examination of any of these aspects has dismissed the appeal by a cryptic order. The court below has neither reappreciated the evidence of the parties, nor it has passed a reasoned order. The High Court has failed to follow the provisions of Order XLI Rule 31 of the Code of Civil Procedure while deciding the appeal. Mr. Bhat has argued that the suit was well within time Under Article 54 of the Schedule to the Limitation Act. Even this question has not been examined in its proper perspective.
10. Per contra learned counsel appearing for respondent nos.1/1 to 1/5 submitted that the Lower Appellate Court had framed points for determination in para 5. As the parties had only pressed issue No.1 and 11, which was decided by the Trial Court, hence the Lower Appellate Court recorded its finding on the said issues being the points for determination before the Lower Appellate Court. He has placed reliance upon a decision of this Court in the case of Smt. Shanti Bai vs. Narbada and others 2020(1) ALJ 42. He further submitted that both the Courts below had recorded a categorical finding that agreement to sale was executed by the plaintiff-appellant on 09.01.2013 and this fact is proved from the cross-examination of PW-2, PW-3 and PW-4. Further he submitted that the plaintiff became bhumidhar with transferable right by operation of law as the land was leased to him in the year 2001 and in 2011, he had become the bhumidhar with transferable right.
11. Having heard the counsel for the parties and perusing the material on record, I find that it is not disputed to either of the parties that the agreement to sale was executed between the plaintiff and the respondent no.1 on 09.01.2013 and consideration was paid. As far as commission of fraud played by defendant-respondent no.2 and 4 are concerned, both the Courts below had recorded a categorical finding that the plaintiff had not filed any documentary evidence nor in the oral testimony, the factum of fraud could be proved against the defendants.
12. The only substantial question of law, which has been pressed before me by the learned counsel for the appellant is that, the Lower Appellate Court without formulating points for determination had proceeded to decide the appeal, which is against the provisions of Order 41 Rule 31 C.P.C.
13. Before proceeding further, a glance of Order 41 Rule 31 C.P.C. is necessary which is as under :
"31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and 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;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
14. From perusal of the judgment of Lower Appellate Court I find that in para no.5, the Lower Appellate Court though has not framed issues like the same was framed by the Trial Court but has formulated the points for determination on the basis of the arguments raised by the counsel for the appellant in the appeal and the Lower Appellate Court proceeded to decide, whether the appellant has a right to get the agreement to sale /Ikrarnama declared null and void based on fraud played upon him i.e. issue nos.1 and 11.
15. Thus, it is clear that requirement, as provided under Rule 31 of Order 41 C.P.C. has been complied with by the Lower Appellate Court as the point for determination was formulated while deciding the said appeal.
16. This Court in the case of Smt. Shanti Bai (supra) had the occasion to consider the effect of Order 41 Rule 31 C.P.C. where also the Lower Appellate Court had not serialized points for determination and had formulated points for determination and thereafter proceeded to discuss the same. Relevant paras 35, 36 and 46 of the said judgment are extracted hereunder :
"35. It is pointed out that points for determination have not been separately stated and therefore judgment is bad. However, I have already noticed above and shown that like framing of issues separately by Trial Court, LAC has not serialized points for determination separately but has formulated points for determination and thereafter proceeded to discuss the same. The points for determination considered by LAC are evident from judgment and I have noted "points for determination", as are evident from paras 8 and 13 of judgment of LAC. A judgment is not to be written in a particular style. If it substantially satisfies requirement of Order 41 Rule 31 C.P.C., and in the judgment, points for determination, which LAC has addressed itself, are apparent reasons for decision as also decision is clear, then the judgment would in conformity with Order 41, Rule 31 C.P.C. and there cannot be any interference therewith on this ground alone. Order 41, Rule 31 C.P.C. nowhere require that point for determination should be first serialized by First Appellate Court and thereafter it should proceed to decide the same. So long as points for determination, which are being considered by First Appellate Court, are specific, discernable and higher Court of appeal can easily find out, there is sufficient compliance of Order 41, Rule 31 C.P.C., where it talks of framing of points for determination.
36. It is not the case of Sri Khan, learned counsel for appellant that besides the two points for determination answered by LAC, any other issue was raised by parties before LAC but that has not been looked into and decided. So long as all the issues raised by parties before First Appellate Court are well considered, in the light of evidence discussed before it, judgment of First Appellate Court cannot said to be bad for contravening requirement of Order 41, Rule 31 C.P.C.
...
46. Hence, this question is also answered against appellant. I have no hesitation in holding that there is no infirmity in the judgment on the anvil of Order 41 Rule 31 C.P.C. On the contrary, there is complete and substantial compliance of said provision."
17. Further, both the Courts below had recorded a categorical finding that the agreement to sale was executed on 09.01.2013 by the plaintiff in presence of his sons and had received consideration for the same and further defendant no.1 having not played any fraud, no interference is required in the second appeal as neither any substantial question of law arises nor any other substantial question of law has been pressed upon by the counsel for the appellant except that the Lower Appellate Court had not formulated points for determination as mandated under Order 41 Rule 31 C.P.C. before proceeding to decide the appeal.
18. As it is evident that the Lower Appellate Court had framed points for determination on the argument of appellant's counsel and decided issue nos.1 and 11, thus I have no hesitation in holding that the mandatory compliance of formulating points for determination was complied with by the Lower Appellate Court while discussing and deciding the appeal. Hence, no interference is required.
19. Second appeal, being devoid of merit, is hereby dismissed.
Order Date :- 20.10.2020 KA