District Dhanbad vs Both resident of Junkudar Phatak, P.O. & P.S. Chirkunda,

.... …. Plaintiffs/Respondents/Respondents 1 S.A. No.592 of 2017

7. Shantimoy Gorai, Son of late Nitai Chandra Gorai, Resident of Chirkunda, P.O. & P.S. Chirkunda, Distt. Dhanbad.

8. Prem Sagar Singh, Son of late Ram Bahadur Singh

9. Smt. Usha Singh, W/o Late Prem Sagar Singh, Both resident of Village- Taldanga, P.O. & P.S. Chirkunda, Distt. Dhanbad.

10. Smt. Sushila Devi Agarwal, Wife of Sushil Agarwal, Resident of Taldanga, P.O. & P.S. Chirkunda, Distt. Dhanbad. .... .... …. Proforma Defendants/Respondents/Respondents For the Appellants For the Respondents ------ : Mr. Rahul Kr. Gupta, Advocate Mr. Avish Anand, Advocate : Mr. Onkar Nath Tiwary, Advocate Ms. Roop Kamal, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties.

2. This Second Appeal filed under section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of affirmance dated

23.09.2017 passed by learned District Judge-IX, Dhanbad in Title Appeal No.91 of 2012 whereby and where under the learned first appellate court has dismissed the appeal.

3. The brief facts of the case is that the plaintiffs filed Title Suit No.143 of 2005 in the court of Civil Judge, Senior Division-V, Dhanbad with a prayer for a decree in favour of the plaintiffs and the proforma defendant No.4; declaring their right, title, interest and possession in to and over the schedule A land of the suit, permanent injunction and cost. The case of the plaintiffs in brief is that the proforma defendant Nos.1 to 3 expressed their willingness to sell the schedule A land to the intending buyers. The defendant No.2 entered into an 2 S.A. No.592 of 2017 agreement for sell on 17.02.2013 with proforma defendant Nos.1 to 3 for purchasing the said land. As per the terms of the said agreement entered into between the defendant No.2 and proforma defendant Nos.1 to 3, the balance consideration amount was payable to the vendor i.e., proforma defendant Nos.1 to 3 within six months to get the sale-deed executed but the defendant Nos.1 and 2 could not comply with the said terms of the agreement dated

17.02.2013, hence, the agreement stood cancelled and terminated. Then the defendant No.1 became interested to purchase the land from the proforma defendants. The defendant Nos.1 and 2 on being enquired by the plaintiff No.1 intimated the plaintiff No.1 that they have no objection for sell of the suit schedule A land to the plaintiff No.1 by the proforma defendant Nos.1 to 3. The plaintiff No.1 thereafter entered into an agreement for sell in respect of the suit land with the proforma defendant Nos.1 and 3. The proforma defendant Nos.1 and 3 sold the suit land and delivered the possession of the suit land to the plaintiff. After thus, purchasing the said land and coming in possession of the same, the plaintiff Nos.2 to 5 and proforma defendant No.4 started exercising diverse act of possession over the suit land, got their names mutated, paid rent to the State. The proforma defendant No.4 made construction of the godown on a portion of schedule A land but as the defendant No.1 started holding threat to the plaintiffs to the effect that the advance paid by him has not yet been returned by his vendors being the perfroma defendant Nos.1 to 3 and even threatened to take possession of the schedule A land by use of force, the plaintiffs filed the said suit with the aforesaid prayer. 3 S.A. No.592 of 2017

4. The contesting defendant Nos.1 and 2 appeared and filed their written- statement challenging the maintainability of the suit on various technical grounds. The defendants denied the allegations made that the defendant Nos.1 and 2 did not get the balance consideration amount. The defendants pleaded that the plaintiff has not entered into the agreement nor paid the entire consideration amount to the proforma defendant Nos.1 to 3 and the defendant No.2 came in possession of the suit land and denied the possession of the plaintiff over the suit land.

5. On the basis of the rival pleadings of the parties, the learned trial court framed the following five issues:- (1) (2) (3) (4) (5) Is the suit maintainable? Is the suit barred by Specific Relief Act? Is the suit barred by limitation? Have the plaintiff and proforma defendant no. 4 came in possession into and over schedule A land? To which other relief the plaintiff and proforma defendant no. 4 are entitled?

6. The learned trial court first took up issue Nos.(1), (2) and (3) together and after considering the materials available in the record, came to the conclusion that the suit is not barred by Specific Relief Act or limitation and held that the suit is maintainable.

7. The learned trial court next took up issue Nos.(4) and (5) together and after considering the evidence in the record, came to the conclusion that the plaintiffs and the proforma defendant No.4 have right to possess the schedule A land and declared the title of the plaintiffs thereon and decreed the suit.

8. Being aggrieved by the judgment and decree passed by the learned trial court, the defendants preferred Title Appeal No.91 of 2012 in the court Principal District Judge, Dhanbad which was ultimately heard and disposed of 4 S.A. No.592 of 2017 by the learned first appellate court by the impugned judgment as already indicated above.

9. The learned first appellate on the basis of the materials in the record and the submissions made before it, settled the following three points for determination:- “I. Whether the suit as framed is maintainable? II. Is the suit barred by Specific Relief Act and Limitation Act? III. Whether the plaintiffs and proforma defendant no.4 have got title and possession over schedule A land of the plaint?”

10. The learned first appellate court took up the point for determination Nos. I and II together and after considering the materials available in the record and making independent appreciation of the evidence in the record, came to the conclusion that the defendant has got no right, title, interest and possession over the suit property and the plaintiff has got valid right, title, interest and possession over the suit property and adjudicated the points for determination in favour of the plaintiff and dismissed the appeal.

11. Learned counsel for the appellants submits that both the courts below failed to take into account the contradiction in the testimony of the witnesses of the plaintiff. It is next submitted that both the courts below have erred by failing to consider that the plaintiff’s suit on the basis of second agreement by the vendor ought to have been dismissed. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be decreed after formulating appropriate substantial question of law.

12. Having heard the submissions of the learned counsel for the appellants and after going through the materials available in the record, it is pertinent to 5 S.A. No.592 of 2017 mention here that it is a settled principle of law that the concurrent finding of facts returned by the courts below can be interfered in the Second Appeal by the High Court if the findings are perverse. Perversity, so far as it relates to interfering with the findings of fact by exercise of the jurisdiction under Section 100 and 104 of the Code of Civil Procedure, is that if a finding of fact is arrived at by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material or if the finding, so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law or if the finding of the court is based on no evidence or evidence, which is thoroughly unreliable or the evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person, would have arrived at those findings then the findings may be said to be perverse, as has been held by the Hon’ble Supreme Court of India in the case of Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board & Others reported in (2010) 13 SCC 216 para-28 of which reads as under :- If a finding of fact is arrived at by ignoring or excluding relevant “28. material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non- application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483 : AIR 2010 SC 2685].“ and the same has been reiterated by the Hon’ble Supreme Court of India in the case of Bharatha Matha and Another vs R.Vijaya Renganathan & 6 S.A. No.592 of 2017 Others reported in (2010) 11 SCC 483 and which has also been reiterated by the Hon’ble Supreme Court of India in the case of K.N. Nagarajappa and Others vs. H. Narasimha Reddy reported in 2021 SCC Online SC 694.

13. Now, coming to the facts of the case, this Court finds that both the courts below have not committed any perversity as they have neither relied upon any evidence which is not admissible in evidence nor considered any inadmissible evidence, in arriving at the concurrent finding of facts, that the agreement entered into between the defendant No.2 and the proforma defendant Nos.1 to 3 had already come to an end by the time the proforma defendant Nos.1 to 3 sold the land to the plaintiff No.1.

14. Under such circumstances, as on the date of execution of the sale-deed by the proforma defendant Nos.1 to 3 in favour of the plaintiff No.1, no valid and subsisting agreement was existing between the defendant No.2 and proforma defendant Nos.1 and 3, hence, this Court is of the considered view that there is no impediment in decreeing the suit of the plaintiff.

15. Under such circumstances, this Court is of the considered view that there is no substantial question of law involved in this Second Appeal.

16. Accordingly, this Second Appeal, being without any merit, is dismissed but under the circumstances without any costs.

17. Let a copy of this judgment be sent to the courts concerned forthwith. High Court of Jharkhand, Ranchi Dated the 07th of August, 2024 AFR/ Animesh (Anil Kumar Choudhary, J.) 7 S.A. No.592 of 2017