2010 ALL MR (Supp.) 41
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

N.N. MHATRE, J.

Shri. Dattatraya Ramanna Mane Vs. Babu Nayaz Pathan & Ors.

Second Appeal No.384 of 1990

6th October, 2009

Petitioner Counsel: Mr. DILIP BODAKE
Respondent Counsel: Mr. M. R. KATIKAR

Civil P.C. (1908), S.100 - Second appeal - Jurisdiction under S.100 - Jurisdiction cannot be exercised by the High Court in absence of any substantial question of law - Finding of fact - Held, finding of fact need not be disturbed in second appeal. 2008(5) ALL MR 587 - Ref. to. (Paras 10, 11)

Cases Cited:
Veerayee Ammal Vs. Seeni Ammal, 2002(1) ALL MR 264 (S.C.) =(2002)1 SCC 134 [Para 5]
Mohammed Inamul Haq s/o. Abdul Quddas Vs. Mohammad Idris Qureshi Abdul Rauf, 2008(5) ALL MR 587 [Para 10]


JUDGMENT

JUDGMENT :- The present Appeal has been filed against the judgment and order of the II Additional District Judge, Solapur dated 28.7.1988 which confirms the judgment and order of the trial Court i.e. the Civil Judge, Senior Division, Solapur in Special Civil Suit No.76 of 1979 dated 13.8.1985.

2. The plaintiff i.e. the appellant herein claims that he entered into an agreement with the Defendant Nos.1, 2 and 3, the respondents herein, to purchase their land for consideration of Rs.27,000/-. According to the plaintiff, he paid an amount of Rs.20,625/- and an agreement for sale of the land in his favour was executed by the defendants on 16.1.1978. The plaintiff claims that on the next date, he paid a further sum of Rs.1,375/- to the defendants which they have acknowledged and on 6.7.1978 another sum of Rs.1,000/-. According to the plaintiff, he paid an amount of Rs.23,000/- out of total consideration of Rs.27,000/- to the defendants. The plaintiff claims that despite his request from time to time to the defendants to execute the conveyance, the defendants failed to do so. The plaintiff, therefore, filed Special Civil Suit No.76 of 1979 before the Civil Judge, Senior Division, Solapur on 13.7.1979 seeking specific performance of the agreements of sale with the consequential relief of compensation. In the alternative, the plaintiff claimed a refund of the earnest money with interest from the defendants. The plaintiff pleaded in the plaint that he was always ready and willing to perform his part of the contract but since the defendants had avoided completion of the transaction he was constrained to file a suit.

3. The defendants filed their written statement contending that the plaintiff was a moneylender and had taken undue advantage of their illiteracy. The defendants contended that since they were in need of money, they had sought loans from the plaintiff. While borrowing the money, the defendants land was used as a security for return of the loan.

4. The evidence of the parties was led before the Court. The trial Court framed several issues including whether the plaintiff was put in possession of th suit land as part performance of the contract. The trial Court on the basis of the evidence led before it held that the defendants had agreed to sell the suit land for a consideration of Rs.27,000/- to the plaintiff on 16.1.1978. It was further held that the plaintiff had proved that he had paid an amount of Rs.20,625/- towards consideration and further amounts thereafter as well. The Court also came to the conclusion that the plaintiff had been put in possession of the suit land in part performance of the contract. While decreeing the suit in favour of the plaintiff the claim for specific performance of the agreement was rejected. However, the Court directed the defendants to pay an amount of Rs.27,000/- with interest @ 6% per annum on the amount of Rs.23,000/- from 30.7.1979 till realisation. Aggrieved by this decision, the plaintiff preferred Civil Appeal No.585 of 1985 before the II Additional District Judge, Solapur. The defendants also filed an appeal being Civil Appeal No.568 of 1985 before the same Court. The lower appellate Court dismissed both the appeals and confirmed the judgment and order of the trial Court. The lower appellate Court held that the agreement was not one for sale of the defendants' property but was a loan transaction in which the property of the defendants' was used as security. The appellate Court did not accept the findings of the trial Court that the plaintiff was in possession of the suit property as part performance of the contract as there was no evidence to prove that fact. The appellate Court has also observed that the trial Court had erred in rejecting the defendants contentions that this was a loan transaction on the ground that no documentary evidence was produced. In fact according to the appellate Court the proper interpretation of the document indicated that it was not a genuine sale transaction. The appellate Court concurred with the finding of the trial Court that there was no substantial pleadings in the plaint indicating that the plaintiff was ready and willing to perform his part of the contract. The appellate Court considered the fact that the property being sold was not owned exclusively by the defendants but there were other sharers who had not consented to the sale. The appellate Court then observed that the trial Court had rightly directed the defendants to pay the amounts borrowed by them to the plaintiffs together with interest.

5. It is submitted by the learned advocate for the plaintiff appellant that the proper interpretation of the documents would indicate that it was an agreement of sale and not a loan transaction. In my opinion, the present Second Appeal does not raise any substantial question of law which requires determination in a Second Appeal. It is now well settled that the lower appellate Court is the last fact finding Court and no interference in a Second Appeal in the judgment of the appellate Court should be permitted on facts unless it can be shown that there is some perversity in the judgment. In the case of Veerayee Ammal Vs. Seeni Ammal, (2002)1 SCC 134 : [2002(1) ALL MR 264 (S.C.)], the Supreme Court has held that the High Court cannot assume jurisdiction to interfere in a Second Appeal merely because another view is possible on appreciation of the evidence. It has been observed that the provisions of Section 100 of the CPC make it obligatory for the High Court to entertain the Second Appeal only if it is satisfied that the case involved a substantial question of law. The Supreme Court has further observed that such question of law has to be precisely stated in the Memo of Appeal and formulated by the High Court in its judgment for decision. The appeal can be heard only on the question so formulated.

6. Considering the present Second Appeal, the memo of the Appeal does not disclose any substantial question of law which has been precisely framed. Nor has any question of law been framed when the present appeal was admitted by this Court.

7. In my opinion, considering the facts and circumstances in this case, no case has been made out to exercise the jurisdiction of this Court u/s.100 of the CPC.

8. The appellate Court has also on the basis of the evidence led observed that the plaintiff is not in possession of the suit property. It has been observed that no independent evidence regarding the delivery of possession has been adduced by the plaintiff to indicate that there was a part performance of the contract. Therefore, the submission of the learned Advocate appearing for the appellant that he was in possession of the suit property by way of part performance cannot be accepted. Both the Courts below have exercised their discretion u/s.20 of the Specific Relief Act and have not granted specific performance. The appellate Court has considered the fact that great hardship would be caused to the defendants who had no other land, in case specific performance was granted.

9. In fact both the Courts below have held that the plaintiff was not entitled to specific performance of the contract. The trial Court was impressed with the fact that no pleadings were on record to indicate that the plaintiff had stated anywhere that he was ready and willing to perform his part of the contract. Besides this, both the Courts below have taken into consideration that the suit property was owned not only by the defendants but by their sisters and mother. The plaintiff therefore could not claim to purchase the entire land without there being any consent from either the mother or the sisters of the defendants. Both the Courts have considered the fact that the plaintiff had advanced certain sums of money and therefore the defendants were directed to pay the amount of Rs.27,000/- to the plaintiff together with interest @ 6% on the amount of Rs.23,000/- from 30.7.1979.

10. The reliance placed by the learned advocate for the appellants on the judgment in the case of Mohammed Inamul Haq s/o. Abdul Quddas Vs. Mohammad Idris Qureshi Abdul Rauf, 2008(5) ALL MR 587 to submit that the concept of a joint family is unknown in Mohammedan law does not take the case of the appellant any further. This is because the appellate Court has already concluded that the transaction was a loan transaction in which the property was kept as security. This is a finding of fact which need not be disturbed in a Second Appeal.

11. In my opinion, therefore, no specific question of law arises in this appeal. Appeal is thus dismissed. Mr. Katikar, appearing for the defendants, submits that the defendants have already deposited an amount of Rs.56,150/- in the trial Court in accordance with decree.

Appeal dismissed.