Smt. Janki Devi widow of late Naresh Prasad Singh v. No.2 and 3 both sons of late Naresh Prasad Singh

.... .... Respondents ====================================================== Appearance : (In SA No.155 of 2010) For the Appellant/s : Mr. A.C.Jha For the Respondent/s : (In SA No.156 of 2010) For the Appellant/s : Mr. A.C.Jha For the Respondent/s : ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 4 06-03-2013 Heard Mr. A.C. Jha, learned counsel for the appellants.

As the facts involved in these two appeals are almost identical in nature and are between the same parties, the same 2 Patna High Court SA No.155 of 2010 (4) dt.06-03-2013 have been heard together and are being disposed of by a common order.

The case of the plaintiffs in brief was that they being in dire need of money approached the defendants (appellants herein) for some loan. The defendants agreed to lend money to the plaintiffs. In lieu thereof, the plaintiffs agreed to execute sale deed with respect to the suit land in favour of the defendants with the condition that if the loan amount was returned within six years from the date of execution of agreement for sale or reconveyance the defendants would execute registered sale deed in favour of the plaintiffs.

Accordingly, the plaintiffs executed two sale deeds in favour of the defendants regarding the suit lands on payment of loan amount of rupees fifteen thousand each on 23.10.1986. The defendants executed an agreement to sale the suit land in favour of the plaintiffs on the same day i.e., 23.10.1986, if the loan amount was returned within six years.

According to the terms and conditions of the agreement, as per the plaintiffs, they tendered the said amount to the defendants but on one pretext or the other the defendants kept the plaintiffs on hold. As per the plaintiffs‟ case, in January, 1992 and March, 1992, the plaintiffs requested the defendants to 3 Patna High Court SA No.155 of 2010 (4) dt.06-03-2013 execute sale deed but the defendants put it off. Further case is that they variously approached the defendants for the purpose of execution of the sale deed in favour of the plaintiff but it could not materialize. Finally the plaintiffs sent a pleader‟s notice to the defendants in this regard on 20.10.1992 which was received by the defendants on 22.10.1992, the defendants did not execute any sale deed. Two separate suits with respect to the two sale deeds dated

23.10.1986 were instituted by the plaintiffs with the plea as abovementioned, vide title suit No. 96 of 1992 and 97 of 1992 in the file of the Court of Munsif, Banka.

In both the cases the defendants contested the suits and filed their written statement denying the fact that plaintiffs ever tendered any amount as per the agreement which could have required the defendants / appellants to execute the sale deed in favour of the plaintiffs / respondents. The learned Trial Court on the basis of rival pleadings framed seven issues including issue No. V in both the suits, namely, 96 of 1992 and 97 of 1992 which reads thus:- “V. Are the plaintiffs ready and willing to perform their part of contract?”

Trial, thereafter, proceeded in both the cases. The parties adduced evidence both oral and documentary. On the basis of 4 Patna High Court SA No.155 of 2010 (4) dt.06-03-2013 evaluation and assessment of evidence and material on record, learned Trial Court in both the suits, separately came to the finding that the respondents / plaintiffs had tendered the amount of rupees fifteen thousand to the defendants and „were / are‟ ready and willing to pay the amount to the defendants within the stipulated period and after that learned Trial Court came to further finding that the agreement dated 23.10.1986 were apparently to reconvey the suit land for rupees fifteen thousand and also came to the finding on consideration of the said agreement that it could not be said to be a mortgage deed. Learned Trial Court in the two separate judgments in both the suits held the plaintiffs / respondents to be entitled to a decree for specific performance of contract and, accordingly, a decree was passed.

The defendants thereafter preferred separate appeals against the above noted two separate judgments and decrees passed by learned Trial Court dated 25.02.2004 vide Title Appeal No. 11 of 2004 (against judgment and decree passed in T.S. No. 96/92) and T.A. No. 12/2004 (against the judgment and decree passed in T.S. No. 97/92).

In both the appeals learned First Appellate Court i.e., Additional District Judge, F.T.C. IInd, Banka formulated two points for consideration which read thus:- 5 Patna High Court SA No.155 of 2010 (4) dt.06-03-2013 A.

The point for consideration is whether the plaintiffs/ respondents were ready and willing to get the sale deed land executed in his favour after payment of agreed consideration money within stipulated period? B. Whether the contract of purchase permissible under law?

The learned First Appellate Court on independent consideration of the evidence both oral and documentary available on record came to the finding that the plaintiffs were willing to pay the amount within stipulated period. He also concurred with the finding of learned Trail Court that the deed in question was deed for reconveyance and accordingly vide his separate judgments and decrees dated 07.01.2010 dismissed the appeals concurring with the findings of facts of the Trial Court.

It is in this background that the present two appeals have been filed which have been heard together. The appellants are aggrieved by the judgments and decrees dated 07.01.2010 passed by learned Additional District Judge F.T.C. IInd, Banka in Title Appeals No. 11 and 12 of 2004, affirming the judgments and decree dated 25.02.2004 passed by learned Munsif Banka in Title Suits No. 96 of 1992 and 97 of 1992 respectively.

Mr. A.C. Jha, learned counsel for the appellants assailing the judgments of the Courts below has submitted that both the Courts below wrongly appreciated the evidence available before them while coming to the finding that the respondents 6 Patna High Court SA No.155 of 2010 (4) dt.06-03-2013 plaintiffs proved before the Courts below that they were willing to perform their part of contract i.e., to pay the consideration amount of rupees fifteen thousand with respect to each agreement. He submits that the respondents having not paid or tendered the amount within stipulated time, it was wrong for the Trial Court to maintain the suit. He further submits that over and above the oral evidence, there was no other evidence on record to support the plaintiffs‟ case that they were ready and willing to pay the consideration money. He has submitted that the appeal involves following substantial questions of law in both the appeals:- I.

Whether the courts below having found that the plaintiffs- respondents having not paid or rendered the amount within stipulated time i.e. upto 23.10.1992 as per deed of agreement acted illegally in holding that the suit filed by the plaintiffs is maintainable in the eye of law? II. Whether the courts below having found that there is no materials on record save and except the oral evidences are justified in holding that the plaintiffs respondents were inclined to make payment of money to the defendants- appellants as per deed of agreement? III. Whether the courts below in absence of any documents i.e. acknowledgment of certificate granted by the postal department acted illegally with material irregularity accepting the submission of the plaintiffs-respondents that the 7 Patna High Court SA No.155 of 2010 (4) dt.06-03-2013 pleader‟s notice was dispatched on 20.10.1992 which was received by the defendants-appellants on 22.10.92? IV. Whether the court of appeal below committed a serious error of record in holding that the property was mere a security for loan?

Learned counsel for the appellants has not disputed the findings of the Courts below that the deeds in question were agreement for reconveyance of the suit land.

As has been noted above there is concurrent finding of fact by the Courts below to the effect that the respondents / plaintiffs were willing to pay the consideration amount of rupees fifteen thousand within the stipulated period and even thereafter. The findings arrived at by the Courts below on the face of it cannot be said to be without any evidence or contrary to any evidence available on record. In such view, the findings cannot be said to be perverse.

I am further of the view that the substantial questions of law as formulated by learned counsel Mr. A.C. Jha, are questions which pertain to findings of facts and cannot be termed to substantial questions of law.

The proposition needs no reiteration that jurisdiction of the High Court under Section 100 of the Code of Civil Procedure is limited and High Court can interfere in exercise of such power 8 Patna High Court SA No.155 of 2010 (4) dt.06-03-2013 only when such findings are found to be perverse, contrary to the evidence on record or without any evidence.

In view of the above, I find no merit in these appeals. These appeals do not merit admissions and are, accordingly, dismissed. (Chakradhari Sharan Singh, J.) Saif/-