* HON’BLE SRI JUSTICE B. CHANDRA KUMAR + Second Appeal No. 320 of 2006 % 28.02.2011 # Ayithi Appalanaidu .. Appellant/Appellant/Defendant Vs. $ Petla Papamma .. Respondent/Respondent/Plaintiff <GIST: >HEAD NOTE: ! Counsel for Appellant : Sri C.S. Surya Prakash Rao ^ Counsel for respondent : Sri Mrs. A. Varalakshmi ? CASES REFERRED : 1. 2003 (6) ALT 491 (DB) 2. 2010 (8) Supreme 428 3. 2010 (6) Supreme 769 4. (2008) 11 Supreme Court Cases 586 5. (2009) 11 Supreme Court Cases 1 6. AIR 2007 Supreme Court 1808(1) 7. AIR 2008 Supreme Court 1108 8. 2004(1) ALT 537 9. 2010(6) Supreme 769 10. AIR 1962 SC 1314 11. (2005) 6 Supreme Court Cases 243 12. 2009(4) ALD 21 (SC) 13. 1999 (4) ALD 204 (DB) 14. (2008) 7 SCC 310 15. (2009) 3 SCC 141 THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Second Appeal No. 320 of 2006 Judgment: This appeal is directed against the judgment and decree, dated 17.01.2005, passed in A.S. No.22 of 2001 by the Senior Civil Judge, Narsipatnam, confirming the judgment and decree dated 26.06.2001 passed in O.S. No. 220 of 1994 by the Junior Civil Judge, Narsipatnam. The defendant before the trial Court is the appellant herein. The parties hereinafter will be referred to as they are arrayed in the lower Court for the sake of convenience. The plaintiff filed the above suit against the defendant for specific performance of agreement of sale alleging as follows. On 30.01.1991 the defendant agreed to sell the plaint schedule land to the plaintiff for a consideration of Rs.10,500/- and on that day he received an amount of Rs.3,000/- towards part of the sale consideration as advance from the plaintiff and executed an agreement of sale. The defendant agreed to handover the possession of the land to her soon after registration of the sale deed, but in the agreement of sale it is mentioned as usual practice that the defendant handed over the possession of the land to her, but actually possession of the land was not handed over. The plaintiff was ready with the balance of amount in the month of April 1991 and requested the defendant through village elders to take the balance of sale consideration amount and execute a registered sale deed, but the defendant had been postponing and ultimately failed to execute the sale deed. Then she got issued a legal notice to the defendant on 29.01.1994 and the defendant gave a reply on 20.02.1994 denying the execution of the agreement of sale and receiving of advance amount. Hence, she filed the suit for specific performance of agreement of sale. The defendant filed a written statement denying the averments made by the plaintiff with regard to execution of the agreement of sale and receiving advance sale consideration of Rs.3,000/-. He has also denied the contention of the plaintiff that she was ready and willing to pay the balance sale consideration amount. The specific case of the defendant is that he is an illiterate and not worldly-wise and that he was under the influence of the husband of the plaintiff. Is further case is as follows. The elder brother of the defendant filed a suit in O.S. No. 94 of 1990 on the file of the Junior Civil Judge, Narsipatnam, for partition of the lands which include the present suit schedule land and that the said suit was pending. The husband of the plaintiff had created an impression in the mind of the defendant that he would help him in that suit and that he would teach a lesson to the elder brother of the defendant if the defendant put his thumb mark on a blank paper. Thus, the husband of the plaintiff by playing a fraud obtained the thumb mark of the defendant on a white paper and subsequently created the agreement of sale. Since the said agreement of sale is a forged one, the same is not enforceable. The suit schedule land is situated in a potential area i.e., by the side of the main road and that its cost is Rs.1,00,000/- in the year 1991 and that by no stretch of imagination the defendant would have agreed to sell the land for a paltry amount of Rs.10,500/-. The trial Court framed the following issues for consideration. 1. Whether the agreement of sale dated 30.01.1991 is true and valid? 2. Whether the blank paper theory put up by the defendant is true? 3. Whether there was any demand and refusal for specific performance? 4. Whether the plaintiff is entitled for specific performance of the agreement? 5. To what relief? On behalf of the plaintiff, plaintiff herself was examined as PW.1 and PWs.2 to 4 were examined and Exs.A1 to A3 were marked. On behalf of the defendant, the defendant himself was examined as DW.1 and Ex.B1 was marked. The trial Court held that the plaintiff has proved the payment of advance amount and execution of Ex.A1 agreement of sale and that PW.3 attested Ex.A1 document in the presence of PW.2 and that the plaintiff was ready and willing to perform her part of contract and decreed the suit in favour of the plaintiff. Aggrieved by the same, the defendant carried the matter in appeal. The learned Senior Civil Judge also confirmed the judgment of the trial Court. It was specifically argued before the learned Senior Civil Judge that the writing on Ex.A1 shows that the writing was adjusted above the thumb mark of the defendant and it shows that thumb mark was obtained on a blank paper and subsequently the matter was written on it. It was also argued that the plaint averments and the evidence of the plaintiff are contradictory with regard to delivery of possession. The appellate Court, however, held that the burden lies on the defendant to show that the contents of Ex.A1 were not read over to him before he affixed his thumb impression. The appellate Court also observed that PW.1 has clarified in her evidence that as usual practice scribe referred in Ex.A1 that the possession of land was delivered to her, though possession was not delivered to her on the date of Ex.A1. Challenging the same, the present second appeal is preferred. The learned counsel for the defendant/appellant herein submitted that the Courts below failed to read the evidence and based their conclusion on mere presumptions and assumptions without any evidence. It is also his submission that except the evidence of P.W.1, there is no evidence in this case to substantiate her case that she had paid an amount of Rs.3,000/- on the date of the agreement of sale. It is also his submission that P.W.2 categorically deposed that no amount was paid to the defendant in his presence and that P.Ws.3 and 4 also did not depose about the payment of advance in their presence. Therefore, the version of P.W.1 that an amount of Rs.3,000/- was paid towards advance in the presence of P.W.2 in his house is not proved and she is unable to give certain important particulars. It is also his submission that the evidence of the defendant was most probable and it reveals that a suit filed by his elder brother in O.S. No. 94 of 1990 was pending and that the husband of the plaintiff approached the defendant and obtained his thumb mark stating that he would teach a lesson to the elder brother of the defendant, if the defendant put his thumb mark on a white paper and believing the version of the husband of the plaintiff the defendant had put his thumb mark on a white paper which was subsequently converted as Ex.A1. It is also his submission that all the surrounding circumstances have to be taken into consideration for appreciating the evidence and the circumstances are that a suit filed by the elder brother of the defendant was pending on the date of the alleged agreement of sale and that the plaintiff did not raise her little finger till 29.1.1994 i.e., for a period of more than three years after the alleged date of agreement and the witnesses who are said to have been present at the time of payment of money did not support the case of the plaintiff. In support of his contention, he has relied upon the decisions of the apex Court reported in Ruttala Simhachalam v. Chundru Bhimeswara Jagannadham and others[1], Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi[2] and D.R. Rathna Murthy v. Ramappa[3]. The learned counsel for the plaintiff/respondent herein vehemently argued that a reading of the plaint makes it clear that the plaintiff has always been ready and willing to perform her part of obligation, she had categorically mentioned that she was always ready to pay balance of sale consideration to the defendant from April 1991 and therefore, there is compliance of Section 16 (c) of the Specific Relief Act. His main submission is that the evidence cannot be re- appreciated in the second appeal, unless it is shown that inadmissible evidence has been relied upon by the courts below or that admissible evidence has been disregarded. It is also his submission that once the courts below on appreciation of the evidence came to the conclusion that Ex.A1 is supported by consideration, it becomes a finding of fact and the finding on the said issue becomes final. It is also his submission that even if there is no proper appreciation of the evidence and another view is possible, High Court should not interfere with a finding of fact. He has relied on the judgment of the apex Court reported in Mahaboob v. Maktumsab[4], wherein it was held that where the Court below held that a particular document is inadmissible then it becomes a finding of fact and such finding cannot be interfered in the second appeal. He has also relied on the decisions of the apex Court reported in Rur Singh (Dead) Through LR.s and others v. Bachan Kaur[5] and also in Makhan Singh (D) by LRs. V. Kulwant Singh[6], wherein it was held that the question whether a Will is a duly proved or not is essentially a question of fact. He has also relied on the judgment in Basayya I. Mathad v. Rudrayaa S. Mathad and Ors.[7], wherein the scope of Section 100 CPC has been discussed. At the time of admission of the second appeal, this Court framed the following substantial question of law for consideration. “Can the requirements of Section 16(c) of the Specific Relief Act be inferred or gathered from some other words which do not confirm the strict requirement of the provisional?” Again another following substantial question of law has been framed by this Court. “Whether the findings of both the Courts below with regard to the genuineness of Ex.A1 and payment of advance of Rs.3,000/- are based on material evidence or whether the Courts below have ignored the material evidence and have drawn wrong conclusions.” After going through the entire material, the other substantial question of law that arises for consideration appears to be as follows. Whether the burden lies on a party who placed reliance on an agreement of sale executed by an illiterate to prove that he had not only agreed to sell, but put his thumb impression after knowing the contents of the agreement of sale? Learned counsel for the defendant/appellant herein relied on a judgment reported in Malamma v. Permanand[8], in support of his contention that in a case where both the Courts below recorded a finding without evidence, merely on surmises, High Court in Second Appeal can interfere with such perverse findings. In that case, this Court found that both the courts below mechanically recorded a finding that Ex.A1 is true and that plaintiff is ready and willing to perform his part of the contract. He has also relied on a decision reported in Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi (2 supra), wherein it was held as follows. “A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.” He has also relied on a judgment reported in D.R. Rathna Murthy v. Ramappa[9], wherein it was held as follows. “Undoubtedly, the High Court can interfere with the findings of fact even in the Second Appeal, provided the findings recorded by the courts below are found to be perverse i.e., not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the re- appreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances.” The learned counsel for the plaintiff/respondent herein has relied on a decision reported in Basayya I. Mathad v. Rudrayya S. Mathad and others (7 supra), wherein it was held that allowing a second appeal without framing substantial question of law is clearly contrary to the mandate of Section 100 CPC. The said decision does not apply to the facts of this case, since substantial questions of law have been framed as referred supra. He has also relied on a decision reported in Makhan Singh (D) by LRs v. Kulwant Singh (6 supra), wherein it was observed as follows. “The interference of the High Court in second appeal should be clearly minimal and would not extend to a mere re- appraisal of the evidence. If High Court on an appreciation of the evidence takes a view different from that of the trial Court and the first appellate Court, the exercise would be clearly unjustified but where the High Court has not made a simpliciter re-appraisal of the evidence to arrive at conclusions different from those of the Courts below, but has corrected an error as to the onus of proof on the existence or otherwise of a Joint Hindu Family property the interference with concurrent finding of fact by the High Court in second appeal is justifiable.” What is required to be considered is whether the findings of the courts below are based on evidence or whether they are perverse. If the findings are perverse this Court can certainly interfere with the findings recorded by the courts below in the second appeal. Learned counsel for the plaintiff/respondent herein has also relied on a decision reported in Mahaboob v. Maktumsab (4 supra), wherein it was held that it is impermissible for the High Court to interfere on a question of fact particularly when both the courts below rejected Ex.D-11 as not admissible since the same was not properly proved by the defendant. “In that case both the courts below found that Ex.D11 does not contain the date and as to when the same was returned and intimated to the village accountant. The trial Court also found that Ex.D11 does not bear even the signature and seal of the office of the village accountant of Palikoppa. The plaintiff has totally denied the execution of Ex.D11. DW.2 who was examined to prove Ex.D11 has not stated that the plaintiff signed Ex.D11”. Therefore, the facts of that case are entirely different to the facts of the case on hand. The phrase “substantial question of law” as mentioned in the amended Section 100 of CPC is not defined in the Code. The word substantial, as qualifying “question of law”, means – of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely as defined in Supreme Court on Words and Phrases, written by Sri Justice R.P. Sethi, Former Judge, Supreme Court of India. In Wests Legal Thesaurus dictionary the word substantial has been defined as “actually existing, not seeming, imaginary, not elusive etc.” The apex Court in Chunilal V. Mehta and Sons Ltd., v. Century Spg. & Mfg.Co.Ltd.[10], expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad 969). “When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law………….” The principles relating to Section 100 CPC relevant for this case, may be summarized thus:- (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to ‘decision based on no evidence’, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” In the light of the ratio laid down in the above referred cases, since the findings of the courts below appears to be perverse and not based on evidence on record and appears to be as a result of non- application of mind, I am of the view that the above referred points arise as substantial questions of law in this appeal. The specific case of the plaintiff is that the defendant executed Ex.A1 agreement of sale on 30.01.1991 agreeing to sell the suit schedule land for a consideration of Rs.10,500/- and received an amount of Rs.3000/- towards part of sale consideration as advance on that day and agreed to take the remaining balance sale consideration of Rs.7500/- in the month of April 1991. It is also her case that she was ready with the balance sale consideration amount of Rs.7500/- in the month of April 1991 and asked the defendant through the village elders to receive the balance amount and execute a registered sale deed for the suit schedule land. Admittedly, she got issued a legal notice to the defendant on 29.01.1994 and the defendant gave reply on 20.02.1994 denying the execution of the agreement of sale and receipt of balance of sale consideration amount. Whereas the case of the defendant is that a suit in O.S. No.94 of 1990 filed by his elder brother for partition was pending and that the husband of the plaintiff promised that he would help him in the said case and believing the version of the husband of the plaintiff he had put his thumb impression on a white paper. It is also his case that the suit schedule land is situated in a prime locality and its cost is Rs.1,00,000/- as in the year 1991. Thus, the specific case of the defendant is that Ex.A1 is a forged document. Admittedly, the defendant is an illiterate person. It was suggested to PW.1 that her husband promising to help the defendant obtained his thumb mark on a blank paper and fabricated Ex.A1 agreement of sale. Of course, PW.1 denied the same. Similar suggestion was also given to PWs.2 and 3 and they also denied the same. Admittedly, Ex.A1 is on a white paper. PW.2 who is the scribe of Ex.A1 admitted that the lines in Ex.A1 on the top portion are having some gap and whereas the lines in bottom portion are closely written without having any gap. He further admitted that the first revenue stamp in Ex.A1 is not parallel to other revenue stamps and affixed downwards to some extent. A perusal of the recitals of Ex.A1 clearly go to show that the matter was adjusted by writing closely above the thumb impression and the schedule of property was closely written. It clearly suggests that the matter was written so closely on a paper to adjust the same above the thumb impression which was already thereon Ex.A1. Any person with open eye on perusal of Ex.A1 can come to a reasonable conclusion that first the thumb impression was obtained and subsequently the matter was written on Ex.A1. Unfortunately, the courts below have not considered this important aspect in this case. PW.1 could not assign any reason as to why she did not obtain the agreement on a stamped paper. PW.2 admitted that there is a Sub-Registrar’s Office at Narsipatnam, which is at a distance of 9 KMs from their village. According to the plaintiff one week prior to the date of sale agreement the bargain was settled at Rs.21,000/- per acre. Therefore, nothing prevented the plaintiff from obtaining stamp papers from the Registrar office within a period of one week before taking an agreement of sale from the defendant. PW.2 though initially deposed that he does not know whether any partition suit is pending between the defendant and his brother, but however subsequently he admitted that a suit is pending between the plaintiff and his brother. PW.4 admitted that the defendant is an illiterate. Admittedly, the suit filed by the brother of the defendant in O.S. No.94 of 1990 was pending on the file of the Junior Civil Judge, Narsipatnam and the suit schedule land herein is one of the suit schedule items of the said suit. Admittedly, during the pendency of the said suit, the plaintiff claims to have obtained the agreement of sale from the defendant on 30.01.1991. PW.2 admitted that the defendant and the husband of the plaintiff used to move closely by the date of agreement of sale. PW.4 admitted that the husband of the plaintiff is having a rice mill, lands and house in their village. All this evidence gives an impression that the version of the defendant that the husband of the plaintiff by promising to help him in the pending suit between himself and his brother obtained his thumb impression on a white paper cannot lightly be thrown out. It is the duty of the Court to examine the entire material placed before the Court in proper perspective. The evidence has to be analyzed and conclusions have to be drawn based on sound reasoning. Where the courts failed to appreciate