Patna High Court - Orders
Sri Ashari Rai vs Sri Shankar Rai on 10 September, 2014
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.58 of 2013
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Sri Asharfi Rai S/O Late Dwarika Rai R/O Mohalla - Kachchi Ghat,
Patna City, P.S. Chowk Patna City, District - Patna
.... .... Plaintiff/Respondent/Appellant
Versus
Sri Shankar Rai S/O Late Janak Rai R/O Mohalla - Jhauganj Ghat, P.S.
Chowk Patnacity, District - Patna
.... ....Defendant/Appellant/ Respondent
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Appearance :
For the Appellant/s : Mr. S.K. Thakur
Shail Kumari
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR
MANDAL
ORAL ORDER
5 10-09-2014In the appeal filed under section 100 of the Code of Civil Procedure the plaintiff-appellant has challenged the judgment and decree dated 12.12.2012 and 28.01.2013 respectively passed by the Additional District Judge-V, Patna City in T.A. No.271/2007 reversing the judgment and decree dated 15.09.2007 and 21.09.2007 respectively passed by the Civil Judge, Senior Division-I, Patna City in T.S. No. 115/2005.
The plaintiff filed the suit for specific performance of contract in relation to agreement to sale (Ext.1) said to have been executed by the defendant on 05.12.2004 in respect of 08 dhur, 9 ¼ dhurki of land.
Briefly stated the case of the plaintiff is that the defendant being the sole owner of the suit land was in need of 2 Patna High Court SA No.58 of 2013 (5) dt.10-09-2014 2/8 money to meet the family expenses and, therefore, entered into a written agreement for sale (Ext.1) on 05.12.2004 in respect of the suit land for a sum of Rs. 12,6,965/- and the earnest money in the sum of Rs. 25,000/- was paid by the plaintiff. The defendant was obliged to execute the sale deed on or before 04.05.2005 after getting the remainder of the consideration amount. The plaintiff requested the defendant to execute the sale deed after receiving the rest of the consideration money inasmuch a notice was also given but the defendant refused to receive the notice and vend the suit land.
On the other hand, the case of the defendant is that he never intended to sell the suit land nor he executed the agreement for sale. He had executed Ext. 1 under the belief that it was a simple mortgage deed. The land was very useful for him. He required money for treatment of his ailing son. On request, the plaintiff lent out Rs. 25,000/- subject to deposit of original registered sale deed relating to the suit land. It was thus a simple mortgage in which the defendant obtained Rs.25,000/- from the plaintiff after depositing the original registered sale deed. It was agreed that the defendant would get the original sale deed from the plaintiff within three years after refunding the amount. In the name of execution of a simple mortgage the 3 Patna High Court SA No.58 of 2013 (5) dt.10-09-2014 3/8 plaintiff got the thumb impression of the defendant on a deed which was subsequently prepared as an agreement to sale. It was a result of the fraud played on the defendant. The trial court while considering the core issue nos. 4 and 5 held that from the evidence of the defendant it was apparent that he wanted to sell the suit land. Ext. 1 was, therefore, held to be valid agreement to sale. Regarding the readiness and willingness on the part of the plaintiff the trial court referring to the averment(s) made in the plaint accepted that the plaintiff was always ready and willing to perform his part of contract. Accordingly, the suit was decreed. Aggrieved thereby, the defendant filed appeal. The appellate court after appreciating the case of the parties in the light of evidence on record found that payment of a sum of Rs. 25,000/- by the plaintiff to the defendant was admitted. The LTI of the defendant on the contract for sale (Ext.1) was also not in dispute. The only contention of the defendant was that he put the LTI on the representation made by the plaintiff respondent that it was a deed of simple mortgage. The appellate court, like the trial court, also found issue no.4 most crucial to resolve the dispute. Noticing the specific case of the parties the appellate court examined the contents of Ext. 1 to find that the defendant had affixed LTI but from recitals of execution 4 Patna High Court SA No.58 of 2013 (5) dt.10-09-2014 4/8 portion it appeared that one Sitab Rai had actually written the execution part on behalf of the defendant. The appellate court on careful examination of the execution part of the document found and held that it did not appear therefrom that the contents of the document/deed was read over and explained to the defendant. The appellate court further noticed that the LTI of the defendant was obtained on the document (Ext. 1) before endorsing the execution part of the deed. Further, the plaintiff examined Sitab Rai as D.W.3 who had scribed the execution part in his deposition said that the deed of agreement was actually scribed by Yogesh Kumar, Advocate and was read over and explained to the defendant upon which he affixed his LTI but actually the evidence of this witness was found in sharp contradiction to the recitals of the execution portion of Ext.1 which gave an impression that he himself read over the contents of the deed and signed the same on behalf of the defendant. The appellate court further found that the advocate who had scribed the deed and said to have read over and explained the contents thereof to the defendant was not examined. These circumstances evidencing from the record persuaded the appellate court to conclude that Ext. 1 was never prepared in the shape and form it existed with the knowledge and approval of 5 Patna High Court SA No.58 of 2013 (5) dt.10-09-2014 5/8 the executant. In fact, his LTI was obtained on a misrepresentation. The defendant being in dire need of money and a rustic villager was induced to sign on the paper treating the same to be a simple mortgage deed but was prepared to look like an agreement to sale. Similarly, the appellate court also negated the case of the plaintiff that he was always ready and willing to perform his part of obligation. Resultantly, the appeal was allowed.
Heard Mr. Thakur learned counsel for the appellant. It has been submitted that the judgment under appeal is perverse as both the findings recorded by the learned appellate court are contradictory to each other. If the finding of the appellate court on the validity of Ext. 1 is to be accepted then the finding with regard to non willingness on the part of the plaintiff would become redundant. It has further been contended that the findings of the appellate court on both the counts are perverse inasmuch they are contrary to the pleadings of the parties and the evidence led in support thereof.
I would prefer to deal with the second submission of Mr. Thakur first. The law enjoins and rightly not disputed by the appellant that in a case like this the plaintiff would succeed only when he is able to prove the case by cogent evidence that 6 Patna High Court SA No.58 of 2013 (5) dt.10-09-2014 6/8 he was always ready and willing to perform his part of obligation under the agreement to sale (Ext.1). The trial court dealing with the said aspect of the matter under issue no.4 has accepted the case of the plaintiff merely referring to the relevant statement(s) made in the plaint devoid of evidence on record. On the other hand, the appellate court not only considered the averment(s) made in paragraph 10 of the plaint but also took into account the evidence both oral and documentary in the light of the law laid down in Smt. Sundari Devi vs. Deo Narayan Prasad [PLJR 2012(3) 36] to examine the conduct of the plaintiff as reflected from the circumstances apparent from the record. The trial court appreciating the evidence of the plaintiff (P.W.1) found that although he deposed that he was ready and willing to perform his part of obligation inasmuch he had visited the house of the defendant to pay the consideration money and execute the sale deed but there was nothing on record that he actually visited the house of the defendant to pay the consideration amount. The service of legal notice was not found sufficient/adequate to demonstrate discharge of legal obligation as contemplated under section 16(c) of the Specific Relief Act. True it is that such willingness of the party to perform his part of the obligation cannot be 7 Patna High Court SA No.58 of 2013 (5) dt.10-09-2014 7/8 considered in straight-jacket formula but nonetheless it requires to be appreciated from the conduct of the party and other attending circumstances. The conclusions derived by the appellate court on this aspect of the matter is, therefore, essentially a question of appreciation of evidence and conclusion derived therefrom. Until and unless they are shown to be perverse ignoring certain relevant evidence/material, this Court would not find much substance in the said submission that those conclusions/inference(s) are perverse. I further do not find any substantial question of law arising from the first submission of the appellant. In fact the appellate court has non- suited the plaintiff on both counts for the reasons stated therein. In the light of the evidence adduced it was found and held that Ext 1 was brought into existence without the knowledge and consent of the defendant. The same was the result of misrepresentation/fraud committed on the defendant. The defendant had approached the plaintiff for advancement of money against the custody of sale document but the plaintiff astutely created an agreement to sale. The appellate court found the case of the defendant more probable and thus held that the agreement to sale (Ext.1) was obtained on misrepresentation of fact(s) taking undue advance of urgent need of money and his 8 Patna High Court SA No.58 of 2013 (5) dt.10-09-2014 8/8 illiteracy. Both the conclusions of the appellate court on the core points/issues, in my view, have not been shown to be perverse and/or wholly illogical.
The appeal is devoid of merit and is dismissed.
(Kishore Kumar Mandal, J) HR/-
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