Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.57 of 2008 ====================================================== 1. Smt. Ahilaya Devi wife of Sri Makeshwar Sah 2. Makeshwar Sah son of Late Bhola Sah Bothare residents of village-Saharsa, Ward No. 9, P.S. & District- Saharsa. (Plaintiffs-Respondents in the Courts below)-Appellants Versus Jitendra Rai son of Late Tarni Kamat, resident of village-Saharsa, Ward No. 1, P.S. and District-Saharsa. (defendant-Appellant in the Court below) .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Pramod Kumar For the Respondent/s : ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 14 22-01-2013 Heard learned counsel for the appellants. 2. This appeal has been placed for hearing under Order 41 Rule 11 of the Code of Civil Procedure. The appeal has been preferred under Section 100 of the Code. The appellant is
Facts
aggrieved by the judgment dated 05.10.2007 and the decree dated 05.11.2007 passed by learned Additional District and Sessions Judge, F.T.C. 3rd, Saharsa in Title Appeal No. 06 of 2003 whereby he has modified judgment and decree dated 30.01.2003 and 05.02.2003 respectively passed by learned Additional Munsif II, Saharsa in Title Suit No. 97 of 1998. 3. The appellant herein was the defendant in the Title Suit which was filed on behalf of the plaintiff for specific performance 2 Patna High Court SA No.57 of 2008 (14) dt.22-01-2013 2 / 6 of contract by the respondent Jitendra Rai seeking a relief for a direction to execute a deed of sale of the suit land on the basis of the agreement for sale dated 14.10.1995. 4. Briefly stated, the case of the plaintiff before the Trial Court was that defendant Jitendra Rai had executed an agreement in favour of the appellant on 14.10.1995. As per the appellants‟ case before the Trial Court, they had purchased 5 dhurs of land of Khata No. 542 Plot No. 4341(old) corresponding to 363 (New) in Saharsa vide registered sale deed No. 14574/1986 from the respondent‟s family. Since way to the house was congested, they felt difficulties and there was some scuffles also between the sides of the plaintiff and defendant, the plaintiff is said to have thereafter entered into a contract for sale of some land in her favour for use as personal way, with the defendant at the cost of rupees five thousand six hundred. The said amount is said to have been paid but the respondent refused to execute the sale deed though agreement to this effect was prepared and signed. It was further pleaded on behalf of the plaintiffs that they did not have the original copy of the agreement for sale initially which was lying with one Harihar Gupta and after eight days of the date of agreement for sale on demand, a copy of the said original agreement was given to the plaintiffs when plaintiff found that the 3 Patna High Court SA No.57 of 2008 (14) dt.22-01-2013 3 / 6 second page of the agreement was changed, which contained a recital that the land would be transferred to Saharsa Municipality in place of the plaintiffs. In spite of repeated demands, the defendant failed to execute the sale deed. The said suit was filed for specific performance of contract on the basis of the said agreement dated 14.10.1995. 5. The defendant on notice appeared before the Trail Court and filed written statement. In the said written statement while he admitted the fact of having received a sum of rupees five thousand six hundred from plaintiffs but at the same time he denied to have signed any agreement for sale of his land to the plaintiffs to be used as personal way. He claimed that he received the said amount as compensation for allowing the plaintiffs to use the land in question as way. He denied the assertion of the plaintiffs regarding replacement of the second page of the agreement dated 14.10.1995. Learned Trial Court framed the issues on the basis of the rival pleadings of the parties and framed altogether seven issues, Issue No. 6 reads as follows:- “Whether the agreement is for sale of the suit land to the plaintiffs and whether any page of the same has been replaced with some ill motive as alleged?” 6. Dealing with this issue learned Trial Court came to the 4 Patna High Court SA No.57 of 2008 (14) dt.22-01-2013 4 / 6 following finding on the basis of oral and documentary evidence available on record:- “I do not find any positive evidence regarding allegation of replacing the second page of agreement (Exhibit-3) as no copy of any such agreement has been filed by the plaintiffs nor any witness of the agreement came forward to say that what was written in the page which is alleged to have been replaced.” 7. Learned Trial Court at the same time, however, recorded the finding that the disputed land has been purchased as per recital of the agreement by the plaintiff Ahilaya Devi for personal way of her family members and it could not be treated as way of Saharsa Municipality. 8. Learned Trial Court finally decreed the suit on contest against the defendant directing the defendant to execute a sale deed regarding the suit land mentioned in the suit of the plaint in favour of the Ahilaya Devi, plaintiff / Appellant No. 1. 9. An appeal under Section 96 of the C.P.C. was thereafter preferred before learned Additional District Judge (F.T.C. 3rd) Saharsa, on the basis of recitals in the agreement dated 14.10.1995 (Exhibit-„3‟) came to the conclusion that the said land was required to be used as way not only by the plaintiffs but also by 5 Patna High Court SA No.57 of 2008 (14) dt.22-01-2013 5 / 6 other persons. He came to finding that agreement for sale was conditional and the sale deed was to be executed in terms of the agreement for sale. Accordingly, while modifying the judgment and decree of learned Trial Court directed the Respondent to execute the registered sale deed in favour of Ahilaya Devi with the condition that the said land will be used as way by the plaintiff and other persons also and none of the parties shall cause any obstruction in use of the land as way by other persons. 10. Assailing the order of learned 1st Appellate Court, learned counsel for the appellants has submitted that the 1st Appellate Court has wrongly held that the land was for use by all other persons. He has submitted that the Lower Appellate Court misconstrued and misinterpreted the agreement dated 14.10.1995 which according to him required agreement for absolute sale of the suit land in favour of the plaintiff.
Legal Reasoning
11. There is no dispute about the fact that Exhibit-3 which was produced by the plaintiffs is the agreement for sale dated 14.10.1995 contained the recital that the land will be used as common way of the people. The plea of the plaintiffs that the said recital was maneuvered by replacing second page of the agreement was not accepted by the Courts below. The Trial Court also found that none of the witnesses of the agreement came forward to say 6 Patna High Court SA No.57 of 2008 (14) dt.22-01-2013 6 / 6 what was originally written in the page which is alleged to have been replaced. 12. In such view of the matter, I find that the case does not involve any substantial question of law which requires determination by this Court in exercise of power under Section 100 of the Code of Civil Procedure. The finding of fact arrived at by the learned Appellate Court does not require interference by this Court at the stage of second appeal. The Appeal is, accordingly, dismissed. Saif/- (Chakradhari Sharan Singh, J)