Case Note & Summary
The appellants/plaintiffs filed a second appeal against the judgment and decree of the Principal District Judge, Tirunelveli, dated 21.11.2002 in A.S.No.312 of 2001, which confirmed the judgment and decree of the Additional Sub Judge, Tenkasi, dated 12.09.2001 in O.S.No.108 of 1997. The original suit was filed by the plaintiffs for specific performance of a sale agreement dated 23.10.1996 allegedly entered into with the deceased defendant Ganapathy Thevar for the purchase of suit property for Rs.2,10,000/-. The plaintiffs claimed that an advance of Rs.10,000/- was paid on the date of agreement and further sums totalling Rs.60,000/- were paid, with the balance of Rs.1,50,000/- remaining. The defendant denied the sale agreement and contended that the suit property was mortgaged to the plaintiffs under a mortgage deed dated 19.08.1993 for Rs.10,000/-. The trial court dismissed the suit, holding that the plaintiffs failed to prove the sale agreement and that the defendant proved the mortgage. The first appellate court confirmed this. In the second appeal, the High Court examined whether any substantial question of law arose. The court noted that the findings of fact by the courts below were concurrent and based on evidence. The plaintiffs did not examine the attestors of the sale agreement, and the mortgage deed was proved by the defendant. The High Court held that there was no perversity or error of law warranting interference under Section 100 CPC. The second appeal was dismissed, and the judgment and decree of the courts below were confirmed.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Interference with Concurrent Findings - The High Court in a second appeal cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The court found no substantial question of law arising in the appeal. (Paras 1-14) B) Specific Performance - Burden of Proof - Sale Agreement - The plaintiffs failed to prove the execution of the sale agreement dated 23.10.1996 and the payment of advance consideration. The courts below correctly held that the plaintiffs did not discharge their burden. (Paras 3-10) C) Mortgage - Proof of Mortgage Deed - The defendant proved the mortgage deed dated 19.08.1993 executed by him in favour of the plaintiffs. The courts below accepted the defendant's case that the suit property was mortgaged. (Paras 5-12)
Issue of Consideration
Whether the concurrent findings of the courts below that the plaintiffs failed to prove the sale agreement dated 23.10.1996 and that the defendant proved the mortgage deed dated 19.08.1993 are perverse or based on no evidence, warranting interference under Section 100 CPC.
Final Decision
Second appeal dismissed. Judgment and decree of the Principal District Judge, Tirunelveli in A.S.No.312 of 2001 dated 21.11.2002 confirming the judgment and decree of the Additional Sub Judge, Tenkasi in O.S.No.108 of 1997 dated 12.09.2001 are confirmed. No costs. Connected miscellaneous petition is closed.
Law Points
- Specific performance
- burden of proof
- concurrent findings of fact
- second appeal under Section 100 CPC
- interference limited to substantial question of law
