Case Note & Summary
The appellant-plaintiff filed a suit for specific performance of an agreement to sell dated 14.02.1986 in respect of field survey No.77/1 area 1.81 HR owned by Bapurao, Rajeshwar, and Vitthal. The plaintiff claimed that the vendors agreed to sell the land for Rs.45,000 and that he paid Rs.30,400, with possession handed over. The sale deed was to be executed by 30.04.1987 but could not be completed due to a pending suit filed by a cooperative society against Rajeshwar. The suit was dismissed on 30.04.1994. The plaintiff then filed the present suit in 2000. The trial court dismissed the suit and partly decreed the defendants' counterclaim for possession. The first appellate court confirmed the judgment. In second appeal, the High Court held that the concurrent findings of fact were not perverse and that no substantial question of law arose. The appeal was dismissed.
Headnote
A) Civil Procedure - Second Appeal - Concurrent Findings of Fact - Interference - The High Court in second appeal under Section 100 of the Code of Civil Procedure, 1908 cannot interfere with concurrent findings of fact unless they are shown to be perverse or based on no evidence. The appellant failed to demonstrate any substantial question of law. (Paras 1-10)
B) Specific Performance - Agreement to Sell - Proof - Burden of Proof - The plaintiff failed to prove the execution of the agreement dated 14.02.1986 and payment of consideration. The courts below rightly dismissed the suit for specific performance. (Paras 2-8)
C) Possession - Delivery of Possession - Counterclaim - The defendants' counterclaim for possession was decreed as the plaintiff failed to prove delivery of possession under the agreement. The concurrent findings upheld. (Paras 2-9)
Issue of Consideration
Whether the concurrent findings of fact by the courts below regarding non-execution of the agreement to sell and non-delivery of possession are perverse or based on no evidence, warranting interference in second appeal.
Final Decision
The second appeal is dismissed. The judgment and order of the first appellate court confirming the trial court's dismissal of the suit and decree of counterclaim are upheld. No order as to costs.
Law Points
- Specific performance
- burden of proof
- concurrent findings of fact
- second appeal
- limitation
- counterclaim
Case Details
2016 LawText (BOM) (02) 116
Second Appeal No.180/2014
Mr. M. P. Khajanchi for appellant, Mr. S. C. Bhalerao for respondent
Narendra s/o Keshavrao Nimje
Smt. Tulsabai wd/o Bapurao Parshiwe (Dead) and others
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Nature of Litigation
Second appeal against concurrent dismissal of suit for specific performance and decree of counterclaim for possession.
Remedy Sought
Appellant sought to set aside the judgments of the trial court and first appellate court and decree the suit for specific performance.
Filing Reason
Appellant was aggrieved by the dismissal of his suit for specific performance and the decree of counterclaim for possession in favor of respondents.
Previous Decisions
Trial court dismissed the suit and partly decreed counterclaim; first appellate court confirmed the judgment.
Issues
Whether the concurrent findings of fact are perverse or based on no evidence.
Whether any substantial question of law arises for consideration in second appeal.
Submissions/Arguments
Appellant argued that the courts below erred in dismissing the suit and that the agreement to sell was proved.
Respondents supported the concurrent findings and argued that no interference was warranted.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless they are shown to be perverse or based on no evidence. The appellant failed to demonstrate any substantial question of law.
Judgment Excerpts
Being aggrieved by judgment and order dated 29.01.2014 passed in Regular Civil Appeal No.54/2005, passed by District Judge-1, Pandharkawda, thereby confirming judgment and order dated 20.04.2005 in Regular Civil Suit No.140/2000, passed by Jt. Civil Judge (Junior Division), Wani by which the suit filed by the appellant-plaintiff was dismissed and the counter claim was partly decreed directing delivery of possession of the suit property to the defendants, the present appeal has been filed by the unsuccessful plaintiff.
Procedural History
The appellant-plaintiff filed Regular Civil Suit No.140/2000 for specific performance. The trial court dismissed the suit and partly decreed the counterclaim for possession on 20.04.2005. The appellant appealed to the District Judge-1, Pandharkawda in Regular Civil Appeal No.54/2005, which was dismissed on 29.01.2014. The appellant then filed the present second appeal under Section 100 CPC.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
