Punjab Courts Act, 1918: s. 41 – Second Appeals – Jurisdiction of the High Court under – Held: Second appeal is not a forum where the court is to re-examine or re-appreciate the question of fact settled by the trial court or the appellate court – Though in view of s.41, it is not necessary to frame a substantial question of law, the jurisdiction of the High Court under second appeal cannot be exercised for re-appreciation of evidence – Jurisdiction u/s. 41 would be available only when there is a substantial error or defect in the procedure provided by the CPC or by any other law for the time being in force – On facts, agreement to sell land between the parties, for Rs. 1,65,000/- out of which Rs. 1,50,000/- duly received by the respondents and the remaining was to be paid at the time of execution of sale deed – Possession delivered to the appellant – Respondents were required to obtain Income Tax Clearance Certificate and to also get the revenue records mutated in the name of the appellant, however, the appellants came to know that the respondents were trying to create third party rights – Appellant then filed a suit for specific performance, which was decreed in favor of the appellant by the trial court and the appellate court, however, set aside by the High Court in second appeal – On facts, trial court as well as the appellate court had specifically found on the basis of the evidence that, though as per the terms and conditions of the agreement to sell, the sale deed was to be executed only after the respondents obtained the ITC Certificate and got the revenue records corrected, the appellant was compelled to file the suit since the respondents were trying to alienate the suit property – Concurrent findings of the trial court and the appellate court that the appellant was justified in filing the suit could not have been faulted with – Judgment of the High Court quashed and set aside. Allowing the appeals, the Court
HELD: 1. Even when a court exercises jurisdiction under Section 41 of the Punjab Act, it cannot interfere with the findings of fact in second appeal on the ground that the said findings are erroneous, howsoever gross or inexcusable the error may seem to be. The findings of fact would also include the findings on the basis of documentary evidence. The jurisdiction under Section
41 of the Punjab Act would be available only when there is a substantial error or defect in the procedure provided by the CPC or by any other law for the time being in force. Though it is not necessary to formulate a substantial question of law, the jurisdiction under Section 41 of the Punjab Act would permit only such decisions to be considered in second appeal which are contrary to law or to some custom or usage having the force of law, or when the courts below have failed to determine some material issue of law or custom or usage having the force of law. Second appeal is not a forum where the court is to re-examine or re-appreciate the question of fact settled by the trial court or the Appellate Court. Though in view of Section 41 of the Punjab Act, it is not necessary to frame a substantial question of law, the jurisdiction of the High Court under second appeal cannot be exercised for re-appreciation of evidence. [Paras 15, 17][282-DF; 284-C-D]
2.1 In the written statement, the respondents stated that they had executed the Power of Attorney and one Mukhtar, an agent of the appellant, was required to take all the requisite steps to get the revenue records corrected. A perusal of the written statement would reveal that the respondents had denied that the appellant-plaintiff was in possession of the suit property. The respondents-defendants further asserted their right to alienate the suit property, if they so desired. [Paras 20-21][285-H; 286A-B, D]
2.2 The trial court, after perusal of the evidence, came to a finding that the execution of the agreement(s) to sell was admitted by the respondents-defendants. The trial court further came to a specific finding of fact that the appellant-plaintiff was always ready and willing to perform his part of contract. It found that, upon the respondents-defendants complying with the conditions as provided in the agreement(s) to sell, they were required to issue a notice to the appellant-plaintiff and after receipt of the said notice, the sale consideration was required to be paid within 30 days from receipt of the said notice. In appeal, the appellate court affirmed the findings of fact recorded by the trial court. It held that the execution of the agreement to sell and the receipt of earnest money of Rs. 1,50,000/- was not disputed. It found that, as per the terms of the agreement(s) to sell, it was for the respondents to get the revenue records corrected and they had also agreed to obtain the ITC Certificate and to send a copy of the same to the vendee. The appellate court held that even oral evidence to controvert these conditions incorporated in the written statement cannot be led in view of Section 92 of the Evidence Act, 1872. It held that the self-serving oral statement of defendant No. 7 was not sufficient to controvert the terms and conditions incorporated in the agreement(s) to sell. Insofar as the argument that the suit for specific performance was filed without the correction of revenue records, the appellate court found that since the respondents-defendants were intending to alienate the suit property, the appellant-plaintiff was justified in filing the suit. [Paras 22, 23][286-E-H; 287-A-B]
2.3 The appellate court came to a specific finding that none of the respondents-, who were signatories to the agreement, had entered into the witness box. Though defendant No. 7, who is the husband of defendant No. 3, had appeared as a witness, the appellate court found that he was not a good substitute for defendants No. 1 to 4, who, being vendors, were the material witnesses. The appellate court held that on account of nonexamination of any of the vendors, an adverse inference could be drawn against them. [Para 24][287-B-D]
2.4 The Single Judge of the High Court, has held that the appellant-plaintiff could seek specific performance of the contract only after the revenue record was corrected. It held that the suit for correction of the revenue record was filed by the respondentsdefendants in 1986 and the same was decreed in 2006. It therefore held that the suit of the appellant-plaintiff which was filed in 1989 was not tenable. The Single Judge therefore allowed the appeals and held that if the plaintiff desires to get the sale deed executed, he is required to pay the present prevalent market rate of the suit property. The Single Judge of the High Court erred in interfering with the concurrent findings of fact recorded by the trial court as well as by the appellate court. The trial court as well as the appellate court had specifically found on the basis of the evidence that, though as per the terms and conditions of the agreement(s) to sell, the sale deed was to be executed only after the respondents-defendants obtained the ITC Certificate and got the revenue records corrected, the appellant-plaintiff was compelled to file the suit since the respondents-defendants were trying to alienate the suit property. [Paras 25, 26][287-D-H]
2.5 The appellant-plaintiff has specifically averred that, though the respondents-defendants had neither obtained the ITC Certificate nor had the revenue records corrected, they were threatening to dispossess him and create 3rd party rights over the suit property. In these circumstances, the appellant-plaintiff was constrained to file the suit. In the written statement, the respondents- defendants have specifically stated that they were entitled to create 3rd party rights. In this factual situation, the concurrent findings of the trial court and the appellate court that the appellant-plaintiff was justified in filing the suit could not have been faulted with. [Paras 27][288-A-C]
2.6 The respondents-defendants cannot be permitted to blow hot and cold at the same time. On one hand, they contended that the suit could not have been filed without getting the ITC Certificate and correction of revenue records, whereas on the other hand, they assert their right to alienate the suit property. [Paras 28][288-C-D]
2.7 Out of an agreed amount of Rs.1,65,000/-, the appellant has already paid an amount of Rs.1,50,000/- . He was already put in possession at the time of execution of the agreement(s) to sell. The balance sale consideration that was to be paid was only about 10% of the total agreed amount. Though the sale deed was to be executed upon the respondents-defendants getting the ITC Certificate and getting the revenue records corrected in the year 1986, in view of their greed since the prices were escalating, the respondents-defendants had tried to create 3rd party rights. In these circumstances, the appellant was required to file the suit. The respondents have also asserted in their written statement that they were entitled to alienate the suit property. Having accepted the agreement(s) to sell and the receipt of an amount of Rs. 1,50,000/- out of the total amount of Rs.1,65,000/-, the respondents could not have been permitted to take a contrary stand that on one hand, the suit could not be filed before the ITC Certificate was obtained and the revenue records were corrected, and on the other hand that they were entitled to alienate the suit property. The Single Judge of the High Court erred in interfering with the concurrent findings of fact arrived at by the trial court and the appellate court upon correct appreciation of documentary as well as oral evidence. The judgment and order passed by the High Court are quashed and set aside and that of the trial court and the appellate court are upheld. [Paras 32-34][289-C-H; 290A-B]
Kulwant Kaur and Others v. Gurdial Singh Mann
(Dead) By LRs. and Others (2001) 4 SCC 262 : [2001]
2 SCR 525 – held inapplicable.
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Others (1999) 3 SCC 722 : [1999] 2 SCR 728; Kirodi (since deceased) Through His Legal Representatives v. Ram Parkash and Others (2019) 11 SCC 317 : [2019]
7 SCR 968; Satyender and Others v. Saroj and Others 2022 SCC OnLine SC 1026; Nirmala Anand v. Advent Corporation (P) Ltd. and Others (2002) 5 SCC 481 : Randhir Kaur v. Prithvi Pal Singh and Others (2019)
17 SCC 71 : [2019] 9 SCR 776; Vidhyadhar v.
Manikrao and Another (1999) 3 SCC 573 : [1999] 1 SCR 168 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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