SYED MD. MAHFOOZ ALAM, J.
(1.) This Second Appeal has been preferred against the judgment dated 18th September, 1989 and decree dated 25.9.89 passed by Sri L.W. Kujur, Second Additional District and Sessions Judge, Munger, in Title Appeal No. 30 of 1988 reversing the order of dismissal of the suit dated 23.4.1988 passed in Title Suit No. 45 of 1985 by Sri Gauri Shanker Poddar, Sub-Judge IV, Hunger.
(2.) The brief facts of the case is as follows: The plaintiff-respondent Bibi Salma Khatoon filed Title Suit No. 45 of 1985 in the Court of Sub-Judge, Hunger, stating therein that the defendant-appellant Smt. Sudama Devi offered her to sell the suit land and the plaintiff-respondent agreed to purchase the suit land for a valuable consideration of Rs. 7500/-. Thereafter, Bayanama (agreement for sale) was executed by the defendant-appellant in favour of the plaintiff-respondent on 28.4.83 after payment of Rs. 7,000/-. As per the terms and conditions incorporated in the Bayanama, it was agreed that the defendant-appellant shall execute the sale deed in favour of the plaintiff-respondent within April 1984 after receiving Rs. 500/-, the rest consideration money. After Bayanama the plaintiff was put in possession of the suit land. Subsequently, the defendant-appellant executed a registered sale deed in favour of the plaintiff on 5.4.84 in respect of the suit property. Further case of the plaintiff-respondent is that after the execution of the sale deed it was stipulated that at the time of handing over the Chirkut (registration receipt) the remaining money i.e. Rs. 500/- will be paid by the plaintiff- respondent to the defendant-appellant. Accordingly, on 15.7.84, the plaintiff's husband approached the defendant-appellant to receive the remaining consideration amount to the tune of Rs. 500/-and hand over the Chirkut but the defendant-appellant asked him to come again as her husband was not present at the house. The plaintiff-respondent again sent her husband to the defendant on several occasions with the remaining consideration amount but on one pretext or the other the defendant refused to accept the consideration money and not handed over the Chirkut. Lastly, on 20.10.84 the defendant-appellant refused to accept the remaining consideration amount and to hand over the Chirkut. Thereafter, the plaintiff sent a lawyer's notice to the defendant which was received by her on 18.3.85 but when in spite of service of notice the defendant-appellant did not hand over the registration receipt then the plaintiff-respondent filed the suit.
(3.) The defendant-appellant appeared in the suit and contested the claim by filing the written statement. Her case, in brief, is that the suit as framed is not maintainable. The plaintiff has got no cause of action to file the suit. The suit is barred by law of limitation, estoppel and waiver. Further case is that it is false to say that the defendant-appellant had agreed and negotiated to sell the suit property to the plaintiff-respondent. It is false to say that the propo
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sal was accepted by the plaintiff and thereafter Bayanama was executed by the defendant-appellant after receiving rupees seven thousand. It is also false to say that the defendant-appellant had agreed to receive the remaining consideration amount i.e. rupess five hundred at the time of execution of sale deed and, accordingly, on 5.4.84 she executed a sale deed in favour of the plaintiff-respondent. It is also incorrect to say that at the time of execution of sale deed it was agreed that the balance consideration amount shall be paid at the time of exchange of Chirkut and that the plaintiff's husband had visited her house with the remaining consideration money but she did not accept the same and on one pretext or the other she refused to accept the same and lastly on 20.10.84 she refused to hand over the Chirkut. Further case is that one Sheikh Gholta was her neighbour who told her that the government had decided to give monthly pension of rupees two hundred to the members belonging to Gorhis community and as she belongs to Gorhis community, she would get monthly pension. It is said that on that pretext Sheikh Gholta took her L.T.I. on some blank papers as well as on stamp paper on or about 24.8.83 and it was suspected that the said blank papers and stamp paper would have been converted into a document of agreement of sale as well as of sale deed. It has been stated that the defendant-appellant had never executed any agreement for sale or sale deed in favour of the plaintiff. It is further said that the defendant-appellant was a Pardanasheen and illiterate lady and Sheikh Gholta had fraudulently obtained her L.T.I. on some blank papers/stamp paper by giving assurance that she would might Ret old age pension which she never received. It is further contended that the defendant- appellant does not know either the plaintiff or her husband and her husband had never tendered any consideration amount amounting to Rs. 7000/- or the remaining consideration amount amounting to rupees five hundred. The prayer has been made to dismiss the suit.
(4.) From perusal of the record of trial court, it appears that the trial court on the basis of the pleading of the parties had framed as many as six issues for consideration which are as follows: (i) Is the suit as framed maintainable? (ii) Has the plaintiff got any cause of action for the suit? (iii) Is the Kewala dated 5.4.84 is valid, legal, operative and for consideration? (iv) Whether the plaintiff has acquired any right, title, interest and possession over the suit property on the basis of Kewala dated 5.4.84? (v) Is the plaintiff entitled to a decree as claimed? (vi) To what relief or relief is the plaintiff entitled to?
(5.) From the perusal of judgment of the trial court it appears that after discussing the oral as well as documentary evidence of the parties the trial court gave following findings:
"a) That the plaintiff has failed to establish that she had means to pay Rs. 7000/- to the defendant and also failed to prove her possession over the suit property. (b) That Exhibit-5 has not legally been proved and, as such, it can not be taken into consideration. (c) That the consideration amount was never passed to the defendant. The execution of the sale deed having not been proved the certified copy of the Kewala can not be taken into consideration. (d) That the kewala dated 5.4.84 is not valid, legal, operative and for consideration and the plaintiff did not acquire and right, title and possession over the suit property."
(6.) It appears that on the basis of the above findings the trial court held that plaintiff's suit is not maintainable and, accordingly, the trial court dismissed the suit of the plaintiff.
(7.) Against the said finding, the plaintiff preferred the appeal which was allowed by the first appellate court and the first appellate court save following findings:
"a) That the Beyanama and Kewala in question, were duly executed by the defendant and she herself has admitted the execution of the above mentioned documents. (b) That the appellate court also held that the consideration money of the sale deed amounting to Rs. 7,000/- out of Rs. 7,500/- had been duly paid to the defendant by the plaintiff and the remaining consideration money i.e. Rs. 500/- was tendered to the defendant by the plaintiff on several occasions but she refused to accept the same. (c) That the first appellate court further held that by virtue of the sale deed valid title of the suit land has passed to the plaintiff and the plaintiff is in possession of the suit property. (d) That the appellate court also held that the defendant has failed to prove the element of fraud."
(8.) On the basis of the above findings, the appellate court allowed the appeal and decreed the suit. Against that finding this Second appeal has been preferred.
(9.) From the perusal of the record of this appeal, it appears that at the time of admission of this Second Appeal on 8.5.1991, following substantial questions of law were formulated: (I) Whether any decree can be passed in favour of the plaintiff without coming to a definite finding that Rs. 500/- the balance consideration money of the sale deed was ever paid or directed to be paid to the defendant? (II) Whether a decree for specific performance of the contract can be passed without there being any pleading, evidence or finding of the court that the plaintiff was and is still ready to perform her part of the contract?
(10.) From the perusal of order dated 12.7.2006, it appears that after hearing both the parties it was felt that the substantial questions of law as formulated on 8.5.1991 were not properly framed, as such, with the consent of lawyer of both the parties the substantial questions of law as framed earlier were recast in the following manner: (I) Whether the judgment of the appellate court is vitiated due to its reliance of Exhibit- 4 and 5, execution of which not been proved by the plaintiff? (II) Whether as per sale deed exhibit-4, the intention of the parties was that the title will pass to the defendant only after payment of full consideration money i.e. only after exchange of Chirkut on payment of Rs. 500/- to the defendant.
(11.) Thus, this appeal will be disposed of in the light of the above mentioned two substantial questions of law as framed on 12.7.2006.
(12.) It has been argued by the learned Advocate of the respondent that the first appellate court is the final court of facts and under Section 100 of the Code of Civil Procedure this Court has no jurisdiction to interfere with the findings of facts of the first appellate court when the same are based on proper consideration of the evidence available on record. It is well settled principle of law that the first appellate court is the final court of facts and under Section 100 of the Code of Civil Procedure this Court while sitting in second appeal has very limited jurisdiction to interfere with the findings of facts of the first appellate court unless this Court finds that the findings of the first appellate court are perverse due to non-consideration or misreading or misinterpretation of oral as well as documentary evidence available on record. In this regard, reliance can be placed upon the decision reported in AIR 1959 Supreme Court 57 (Deity Pattabhiramaswamy v. S. Hanymayya and Ors.), On the scope of Section 100 C.P.C. the law laid down in the said decision is quoted below: The provisions of Section 100 are clear and unambiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. Nor does the fact that the finding of the First Appellate court is based upon some documentary evidence make it any the less a finding of fact. A judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence.
(13.) Reliance can also be placed on the decision given in the case of V. Ramachandra Ayyar and Anr. v. Ramalingam Chettiar and Anr. Following observations from the said decision are quoted below: If a finding of fact has been recorded by the first appellate Court without any evidence, that finding can be successfully challenged in second appeal, because a finding of fact which is not supported by any evidence can be questioned under Section 100 and in that connection it may be said that the decree proceeding on such a finding discloses a substantial defect or error in procedure. This, however, does not mean that wherever the High Court thinks that the evidence accepted by the lower appellate court could not have been reasonably accepted, the High Court would be justified in interfering with the decision of the lower appellate court. All that it means is that it should be a case where the evidence, which is accepted by the lower appellate court, no reasonable person could have accepted and that really amounts to saying that there is no evidence at all.
(14.) Similar views have been taken in the case of Manicka Poosali (D) by Lrs. and Ors. v. Anjalai Ammal and Anr. reported in 2005 (2) BBCJ - IV - 421 and in the case of Smt. Ram Sakhi Devi v. Chhatra Devi reported in 2005 (3) BBCJ - IV - Page - 265 and in several other decisions. Thus, the law has been settled on the point that in second appeal this Court is not empowered to interfere with the findings of fact arrived at by the first appellate court which is the final court of fact unless this Court comes to the conclusion that the findings of the first appellate court are based on non-consideration or improper consideration of the evidence available on record. Therefore, first of all, I would like, to see as to whether the findings of the first appellate court are based on non-consideration or improper consideration of the evidence available on record meaning thereby that the findings of the first appellate court are perverse.
(15.) Before discussing the evidence of the parties, in order to come to the conclusion as to whether the first appellate court has properly appreciated the evidence of the parties or not, I would like to go through the pleadings of both the parties.
(16.) According to the case of the plaintiff-respondent, the specific case of the plaintiff is that appellant Smt. Sudama Devi offered the plaintiff to sell the suit land and the plaintiff agreed to purchase the suit land for a consideration of Rs. 7500/-. Thereafter a document of agreement for sale (Bai Beyana) was executed by the appellant on 28.4.83 after receiving Rs. 7000/- and it was stipulated in the said Bai Beyana that by the end of April, 1984, the sale deed in respect of the suit land would be executed by the appellant after receiving Rs. 500/-, the remaining consideration amount. Further case of the plaintiff is that according to the terms and conditions of Bai Beyana, a sale deed was executed by the plaintiff on 5.4.84 and at the time of execution of the sale deed it was stipulated that the remaining consideration amount i.e. Rs. 500/- would be paid to the appellant at the time of exchange of registration receipt (Chirkut) but on one pretext or the other, the appellant did not receive the remaining consideration amount and tailed to deliver the Chirkut as well as the sale deed and finally on 20.10.84 she refused to accept the remaining consideration money and to hand over the Chirkut. Against this specific denial of the plaintiff, there is no specific case of the defendant-appellant that the Bai Beyana (Ext. 1) or the sale deed dated 5.4.84 (Ext.4) do not bear her L.T.I. rather there is implied admission of the defendant-appellant that both the documents bear her L.T.I. as she suspected that one Sheikh Gholta, who was her neighbour, had taken her L.T.I, on some blank papers as well as on some stamped paper on giving false assurance that she (defendant) would get old age pension and there was possibility that those documents might have been converted into the deed of agreement or the sale deed. Thus, from the pleading of the defendant-appellant, it is established beyond doubt that she had not challenged this fact that the deed of agreement for sale or the sale deed did not bear her signature. Since both the documents have been duly proved by the plaintiff's witnesses and since the defendant-appellant did not try to establish by examining, any expert that the above documents did not bear the L.T.I. of the defendant-appellant, I find no difficulty in coming to the conclusion that the deed of agreement for sale as well as the sale deed bear the L.T.I. of the defendant-appellant.
(17.) The plea of the defendant-appellant was that she was an illiterate Pardanashin lady and one Sheikh Gholta who was her neighbour approached her with an idea that she might get monthly pension of Rs. 200/- as the Government had decided to Rive old age monthly pension of Rs. 200/- to the members of Gorhi community and on that pretext, the said Gholta took her L.T.I on some blank paper as well as on some stamped paper. Let me first examine whether her averment that she is a Pardanashin lady is correct. At the very beginning I would like to say that it is not disputed that the defendant-appellant is an illiterate lady but her version that she is a Pardanashin lady is very doubtful and does not find corroboration from her own evidence as well as from other materials available on record.
(18.) The record of the trial court shows that appellant Sudama Devi was examined as D.W.1 in the suit. Her deposition shows that she has not even whispered in her examination-in-chief that she was a Pardanashin lady rather her evidence shows that she frequently comes out from her house without being accompanied by her husband or her close relatives as at paragraph 3 of her deposition, she has deposed that she knows Sk. Gholta who always visits her house. The said Gholta told her that she could get monthly pension at Rs. 200/- and took her L.T.I. on blank paper as well as on some stamped paper and thereafter she went to Munger accompanied by Sk. Gholta. The above evidence of defendant Sudama Devi establishes that she is not a Pardanashin lady rather she freely comes out from her house with other person of her locality and without being accompanied by her husband. The husband of the defendant Sudama Devi has been examined as D.W. 3 in the suit. His evidence also shows that he has also not uttered even a single word regarding the fact that her wife Sudama Devi is a Pardanashin lady. He has also supported this fact that his wife comes out from her house without being accompanied by him as he has corroborated this fact that Gholta had taken her to Hunger. Thus, there is absolutely no reliable evidence on record that appellant Sudama Devi is a Pardanashin lady. The other circumstances like her coming in court without in Parda at the time of filing of the suit and swearing affidavit and also her coming in Court at the time of her deposition without in Parda establishes that the defendant-appellant was never a Pardanashin lady. I am, therefore, of the view that the finding of the first appellate court that defendant Sudama Devi is not a Pardanashin lady is correct.
(19.) Now let me examine - whether her plea that said Gholta had taken her L.T.I. on some blank paper as well as on stamped paper on false pretext of providing her old age pension amounting to Rs. 200/- P.M. is believable or not. According to the averments made at paragraph 7 of the written statement, Sheikh Gholta who was her neighbour came to her house and told her that the Government had decided to Rive pension of Rs. 200/- per month to the members of Gorhi community and induced her to put her L.T.I. on some blank papers as well as on some stamped papers. At paragraph 8 she has further stated that she was given to understand by the said Gholta that she would be given old age pension if she admitted her L.T.I. on those papers. She has further averred that she was all along under the impression that necessary steps were being taken for facilitating her to take old age pension from the Government. Thus, from the abovementioned paragraphs of written statement it is established that defendant-appellant has made out a case that Sk. Gholta had induced her to put her L.T.I. on some blank papers/stamped paper on the pretext of providing her old age pension which were converted into deed of agreement and into sale deed. In order to believe this story it would be an important point to decide whether appellant Sudama Devi was a deserving candidate for getting old age pension? The answer is definitely in negative as all the materials available on record establish that she is a middle aged woman below 45 years of age and as such not sufficiently old to be fit person to receive old age pension. Her age given in her affidavit and in her deposition establishes that she is below 45 years old and even her husband (D.W. 3) is alive. Under such circumstances, it cannot be imagined that at the relevant time she (defendant) was entitled for grant of old age pension. I am, therefore, of the view that the story that the said Gholta had taken L.T.I of the defendant-appellant on some blank paper/ stamped paper on the pretext of providing her old age pension is altogether false and unbelievable. This is also not believable because of the fact that there is no averment either in the written statement or in the deposition of the defendant's witness that Sk. Gholta was related to the plaintiff or her husband which might have promoted Sk. Gholta to commit fraud upon defendant Sudama Devi rather the evidence on record shows that Sk. Gholta was a neighbour of the defendant and he was so close with the family of the defendant that the defendant Sudama Devi had no hesitation to go to any place in his company. Even her husband has never raised any objection in this regard. Under such circumstances there is no reasonable ground to accept that Sk. Gholta might have acted against the interest of defendant Sudama Devi. Besides that the inaction of the defendant-appellant in taking legal action against Sk. Gholta for his fraudulent act proves beyond doubt that the story as propounded by the defendant that Sk. Gholta had fraudulently obtained her L.T.I. is not correct. I am of the view that the first appellate court has rightly disbelieved the story.
(20.) Now coming to the execution of agreement of sale as well as the sale deed by Sudama Devi it appears that the execution at both the documents has been impliedly accepted by Sudama Devi as at paragraph 3 of her deposition, Sudama Devi D.W.1 has stated that firstly, said Gholta had taken her L.T.I. on blank paper and on the blank stamped paper and thereafter he took her to Munger and at Munger he took her to different places and obtained her L.T.I. on some blank paper. She has further deposed at paragraph 8 of her cross-examination that after returning back from Hunger, she neither informed her husband nor filed any complaint either in the court or in the police station regarding the fraudulent act of taking her L.T.I. by said Ghota. The above evidence of D.W. 1 establishes beyond doubt that she had voluntarily executed both the documents i.e. agreement for sale Ext. 1 and the sale deed dated 5.4.84 (Ext. A) (certified copy). Moreover, Ext. 5 which is the certified copy of the deed of cancellation dated 25.10.84 executed by defendant Sudama Devi establishes beyond doubt that in this deed she has admitted the execution of the sale deed on 5.4.1984 in favour of the plaintiff Bibi Salma Khatoon. Ext. 5 has been brought on record on behalf of the plaintiff and the document was proved by P.W. 9 Md. Suleman, a clerk in the Registry Office at Munger. It appears from the deposition of the defendant that no denial has come from the side of the defendant that this deed of cancellation (Ext. 5) was not executed by defendant Sudama Devi. Thus, the natural inference will be that the execution of the document (Ext. 5) is admitted by the defendant. From perusal of the contents of the deed of cancellation, it appears that defendant Sudama Devi had admitted the execution of the sale deed but she cancelled the document because of the fact that the consideration amount of Rs. 7000/- out of Rs. 7500/- was not paid to her. Whatever may be the reason of cancelling the sale deed (Ext.4) but it is proved beyond doubt that the sale deed (Ext. 4) was duly executed by defendant Sudama Devi. I am, therefore, of the view that the learned first appellate court has rightly held that the sale deed (Ext.4) was duly executed by Sudama Devi.
(21.) Now coming to the fact regarding the payment of consideration money, I find that there is overwhelming oral as well as documentary evidence on record to establish that the plaintiff had paid Rs. 7000/- out of total consideration of Rs. 7500/- at the time of execution of the agreement for sale and after execution of the sale deed (Ext. 4) the plaintiff sent her husband on several occasions to the defendant Sudama Devi to hand over Rs. 500/- the remaining consideration amount and to obtain the Chirkut. In this regard, the evidence of P.W. 1 Bibi Salma Khatoon, P.W. 2 Md. Zabarr, P.W. 3 Kuldip Singh, P.W.4 Sheikh Rafique Ali and P.W. 5 Masood Jaman is relevant and it appears that the first appellate court has elaborately made discussion on their evidence and I do not feel necessity to make further discussion on their evidence. Thus, from the evidence of the above witnesses coupled with the recitals of the deed of agreement (Ext. 1) and the sale deed (Ext. 4) it is established beyond doubt that out of Rs. 7500/-, Rs. 7000/- had been paid to Sudama Devi by the plaintiff towards consideration amount and as such. I hold that the finding of the first appellate court in this regard is also correct. Thus, I find and hold that the findings of the first appellate court are based on proper appreciation of the evidence available on record and the same are not perverse. I further hold that this Court while sitting in second appeal has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court, as provided under Section 100 of the Code of Civil Procedure.
(22.) Now, I would like to make comment on the substantial questions of law, as formulated in this appeal.
(23.) It was argued by the learned Advocate of the appellant that Exts. 4 and 5 are certified copies of the sale deed and the deed of cancellation, respectively and the original of both the documents has not been brought on record by the plaintiff and in absence of the original documents, the first appellate court has wrongly placed reliance upon the recitals of both the documents and as such, the judgment of the first appellate court is vitiated due to its reliance on Exts. 4 and 5. It has further been argued by the learned Advocate of the appellant that in absence of original documents, the execution of Exts. 4 and 5 has not been duly proved and as such, the learned first appellate court has committed grave error of law by placing reliance upon such documents the execution of which was never duly proved.
(24.) Against this argument, it was contended by the learned Advocate of the respondent that the original of both the documents was in possession of the defendant-appellant and, therefore, it was bounden duty of the defendant Sudama Devi to produce both the documents but when Sudama Devi failed to produce both the documents the plaintiff called for the register maintained in the Registry Office for incorporating all the sale deeds registered in the said office. He submitted that this document is a public document and P.W. 9 Md. Suleman has duly proved the entry of the sale deed dated 5.4.84 as well as the entry regarding the deed of cancellation executed by Sudama Devi and as such, it cannot be held that the execution of Exts. 4 and 5 was not duly proved. I fully agree with the argument of the learned advocate of the respondent and further hold that the register maintained in the registry office for incorporating the sale deeds/ cancellation deed is a public document and since the entry regarding registration of the sale -deed dated 5.4.84 (Ext. 4) and entry regarding the deed of cancellation dated 25.10.84 have been duly proved by P.W.9 Md. Suleman, a clerk of the Registry Office, as such I find and hold that the execution of Exts. 4 and 5 has been duly proved and the judgment of the first appellate court is not vitiated due to its reliance on Exts. 4 and 5, Accordingly, substantial question of law No. (I) is decided against the appellant.
(25.) It has been argued by the learned Advocate of the appellant that admittedly the entire consideration amount was not paid to defendant Sudama Devi by the plaintiff and as per the sale deed, out of total consideration of Rs. 7500/-, only Rs. 7000/- was paid to the defendant and the rest consideration money i.e. Rs. 500/- was agreed to be paid at the time of exchange of Chirkut which was admittedly never paid and due to that, Chirkut could not be exchanged. The submission of the learned Advocate of the appellant is that since the remaining consideration of Rs. 500/- was not paid to the defendant by the plaintiff, as such valid title of the suit land could not pass to the plaintiff. Against the said argument of the learned Advocate of the appellant, it has been submitted by the respondent that there is settled law that passing of consideration is not a condition precedent of valid sale and the sale is complete even on payment of part consideration and the title passes even though consideration is deferred. On this point the learned Advocate of the respondents has placed reliance upon the decisions reported in AIR 1971 Orissa 147 (Gurubari Lenka and Anr. appellants v. Dulani Thakurani and Ors. respondent), AIR 1962 Andhra Pradesh 94 (Goli Ramaswami and Anr. appellants v. Narla Jagannadha Rao an Ors. respondents) and 1989 BBCJ Page 650 (Smt. Dola Devi, appellants v. Ali Hussain and Ors. respondents).
(26.) Having considered the submissions of both the parties and after going through the decisions referred above, I find and hold that as soon as the sale deed is complete and part consideration amount has been paid, the title passes to the purchaser even if payment of remaining consideration money was deterred. I further find and hold that since Ext. 4 does not show that the intention of the parties was that title will pass to the plaintiff only alter payment of full consideration money and only after exchange of Chirkut on payment of Rs. 500/- and as the plaintiff had already paid Rs. 7000/- to the defendant towards part payment of consideration money and had also tendered the remaining consideration amount i.e. Rs. 500/- on several occasions, valid title had passed to the plaintiff by virtue of sale deed dated 5.4.84. Accordingly, this substantial question of law is also decided against the appellant.
(27.) In the result, I do not find any merit in this second appeal and as such, the same is hereby dismissed on contest with cost throughout. The judgment and the findings of the first appellate court are hereby upheld. However, the plaintiff is directed to deposit Rs. 500/- the remaining consideration amount in court, if not deposited earlier. The defendant-appellant Sudama Devi will be entitled to withdraw the said amount