THE HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No. 1196 of 2009 JUDGMENT : 1. This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), is directed against the judgment and decree dated 31.08.2009 in Appeal Suit No.41 of 2008 on the file of the I Additional District Judge, Anantapur, whereunder and whereby the judgment and decree dated 06.11.2007 in Original Suit No. 167 of 2004 on the file of the Principal Junior Civil Judge, Anantapur, dismissing the suit filed for specific performance of agreement of sale dated 04.03.1997, were confirmed. 2. The appellant herein is the plaintiff, and the respondents herein are the defendants 1 to 3, before the trial Court. For better appreciation of facts, the parties are hereinafter referred to as arrayed in the trial Court. 3. The plaintiff filed the suit for specific performance of agreement of sale dated 04.03.1997 stating as follows: The defendants 1 and 2 are the owners of the plaint schedule property. They agreed to sell the property to the plaintiff for a consideration of Rs.65,000/-, and received a sum of Rs.50,000/- from the latter on 04.03.1997 and executed Ex.A1-agreement of sale, and balance of the sale consideration was payable within three years thereafter i.e. on or before 3.3.2000. The plaintiff paid the balance sale consideration on 02.03.2000 to defendants 1 and 2, who endorsed the same in the agreement and undertook to execute sale deed whenever demanded by the plaintiff. As the defendants did not execute sale deed thereafter, the plaintiff got issued a notice to them. They gave reply with false allegations. Hence, the suit. As the third defendant was trying to obtain nominal sale deed from defendants 1 and 2 in respect of the schedule property, it is also added as party to the suit. 4. The defendants 1 and 2 remained ex parte. 5. The third defendant filed written statement stating that the agreement of sale is nothing but a fabricated document brought into existence by the plaintiff in collusion with the defendants 1 and 2 to defeat the rights of the third defendant. The defendants 1 and 2 availed loan from third defendant bank and created equitable mortgage of the schedule property as a collateral security for the loan availed, and thus the agreement of sale is not supported by consideration and the suit is liable to be dismissed. 6. Basing on the above pleadings, the trial Court framed the following issues for trial. 1) Whether the plaintiff is entitled for specific performance of an agreement dated 4.3.1997 ? 2) Whether the sale agreement dt.4.3.1997 was got up document with the collusion of D.1 and D.2 ? 3) Whether the sale agreement dt.4.3.97 and endorsement dt.2.3.2000 are materially altered ? 4) Whether the suit is barred by limitation ? 5) Whether the 3rd defendant is misjoinder of necessary party ? 6) Whether D.1 and D.2 mortgaged the suit schedule property with D.3 and availed the loan facility of Rs.1,00,000/- on 16.9.1998 ? 7. During trial, P.Ws. 1 and 2 were examined and Exs.A1 to A4 were got marked, on behalf of the plaintiff, and D.W.1 was examined and Exs.B1 to B4 were got marked, on behalf of the third defendant. 8. The trial Court, upon appreciation of the evidence on record, came to the conclusion that the dispute involved in the suit is no longer res integra as it has been decided by the Principal Senior Civil Judge, Anantapur, in E.P. No.124 of 2003 in O.S. No.27 of 2000, and accordingly, dismissed the suit. On appeal, the judgment and decree of the trial court were confirmed by the appellate court. Challenging the same, the present Second Appeal has been preferred by the appellant/plaintiff. 9. The learned counsel for the appellant contended that the plaintiff filed the suit for specific performance of the contract based on Ex.A1-agreement of sale dated 4.3.1997, but, no finding has been given by the trial court with regard to entitlement of the relief of specific performance by the plaintiff, and therefore, it is a substantial question of law involved in this Second Appeal. 10. There cannot be any dispute that, under the amended Section 100 C.P.C., a party aggrieved by the decree passed by the first appellate court has no absolute right of appeal. He can neither challenge the decree on a question of fact or on a question of law. The second appeal lies only where the High Court is satisfied that the case involves a substantial question of law. The word ‘substantial’ as qualifying ‘question of law’, means and conveys – of having substance, essential, real, of sound worth, important, considerable, fairly arguable, in contradiction with – technical, formal, or no substance, no consequence or academic only. A substantial question of law should directly and substantially affect the rights of the parties. A question of law can be said to be substantial between the parties if the decision in appeal turns one way or the other on the particular view of law. But, if the question does not affect the decision, it cannot be said to be substantial question between the parties. Recording a finding without any evidence on record; disregard or non- consideration of relevant or admissible evidence; taking into consideration irrelevant or inadmissible evidence; perverse finding- are some of the questions, which involve substantial questions of law. 11. The substantial questions of law, according to the learned counsel for the appellant, are as follows: (1) Whether the courts below judgments can’t be tenable without discussing the factual issue in a suit for specific performance? (2) Whether the courts below can come to conclusion regarding the valuation of the land without there being any pleadings ? (3) Whether the lower courts can give the findings which were not pleaded by the parties to the suit ? (4) Whether the courts below went in wrong considering the other facts which were not subject matter of sale agreement ? 12. Now, it has to be seen whether there is any substantial question of law, so as to admit the second appeal ? 13. The suit is filed by the plaintiff for specific performance basing on Ex.A1-agreement of sale. It is not in dispute before this court that the third defendant filed Original Suit No.268 of 2005 on the file of the Additional Senior Civil Judge, Anantapur against the defendants 1 and 2 for recovery of loan and also for sale of the schedule property. The third defendant has taken a specific plea in the said suit that the defendants 1 and 2 together obtained a loan of Rs.1,00,000/- from the bank by placing the schedule property as security and also by depositing title deeds for due payment. It is also not in dispute that the suit schedule property was auctioned in E.P. No.124 of 2003 in O.S. No.27 of 2000 on the file of the Principal Senior Civil Judge, Anantapur and a third party purchased the said property in the court auction for a sum of Rs.6,50,000/- and a sale certificate was also issued in favour of the third party. It is also not in dispute that the appellant herein filed a claim petition before the executing court and the said petition was dismissed by the said court, and the order has attained finality. 14. No doubt, in a suit for specific performance, it has to be seen whether the plaintiff was ready and willing to perform his part of contract from the date of execution of the agreement till the date of registration of the sale deed. As seen from the pleadings, a specific plea has been taken by the defendant no.3 that the agreement dated 4.3.1997 was got up document with the collusion of the defendants 1 and 2. If that issue is answered against the plaintiff, then the question of considering the issue no.1 viz. whether the plaintiff is entitled for specific performance of agreement of sale dated 4.3.1997, does not arise. From the evidence of P.W.1, the trial Court came to the conclusion that the transaction under Ex.A1 is a sham and nominal one. The defendants 1 and 2 are signatories to Ex.A1, but, P.W.1 stated that he does not know the second defendant. When he does not know the second defendant, it is not known as to how he entered into the agreement under Ex.A1 and obtained his signature on it. Even the consideration under Ex.A1 appears to be undervalued because the value of the property, even according to P.W.1, was Rs.2,60,000/- as on the date of Ex.A1. But, the value was shown in Ex.A1 only as Rs.65,000/-. This is yet another circumstance to doubt the execution of Ex.A1. Admittedly, by the date of execution of Ex.A1, the defendants already borrowed certain amounts from the third defendant and deposited title deeds relating to the schedule property. Therefore, basing on these two grounds, the trial court came to the conclusion that Ex.A1 is sham and nominal document. That finding cannot be shown to be perverse and it is based upon probability factor. 15. It is also not in dispute that the plaintiff filed claim petition in E.P. No.124 of 2003 in O.S. No.27 of 2000 on the file of the Principal Senior Civil Judge, Anantapur. Filing of the claim petition has not been pleaded in the plaint. Therefore, it is clear from the above that the plaintiff has not come to the court with clean hands. Grant of relief of specific performance is an equitable remedy and the plaintiff must come to the court with clean hands to get that remedy. When the claim application was dismissed by the competent executing court and that order has become final, from the non-mentioning of the said fact in the plaint, it is clear that the plaintiff has not come to the court with clean hands. Therefore, the trial court rightly dismissed the suit. The first appellate court, considering the evidence of P.W.2, whose evidence is inconsistent with the pleading, came to the conclusion that Ex.A1 is a concocted document brought into existence in collusion with the defendants 1 and 2. The findings of the courts below are based upon the appreciation of the evidence on record, and under no stretch of imagination it can be said that the said findings of fact are perverse or contrary to the evidence on record so as to infer that there is a question of law, much less a substantial question of law, involved in this Second Appeal. 16. The Second Appeal is devoid of merit and is, accordingly, dismissed at the stage of admission. No costs. --------------------- (K.C.Bhanu, J.) 06.06.2011 DRK THE HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No. 1196 of 2009 06.06.2011 THE HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No. 1196 of 2009 06.06.2011 Between: R.Krishna Reddy …Appellant And A.Timma Reddy & others. …Respondents