IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRTIETH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.227 OF 1999 BETWEEN Kuna Mahendra Kumar. …APPELLANT AND Bankapuram Reddeppa Chetty and another. …RESPONDENTS Counsel for the Appellant: MR. N. PRAMOD Counsel for the Respondents: MR. M. VENKATARAMANA REDDY FOR R1 The Court made the following: - JUDGMENT: This is an appeal by the second defendant, who questions the decree in specific performance suit O.S.No.194 of 1984 granted in favour of the first respondent herein. In the said suit the second respondent herein, who was the previous owner of the property, was impleaded as first defendant and the appellant herein was impleaded as the subsequent purchaser. 2. For the sake of convenience, the parties herein are referred to as they are arrayed in the suit. 3. The case of the first respondent/plaintiff is that the second respondent executed an agreement of sale – Ex.A1 dated 01.05.1981 for a sum of Rs.9,000/- agreeing to sell the suit schedule property to the plaintiff. The plaintiff claimed that he gave a notice prior to suit Ex.A2 dated 11.04.1984, which was replied to by the first defendant under reply dated 21.04.1984 asserting and denying Ex.A1 agreement and it was pleaded by the plaintiff that the first defendant has already sold the suit schedule property to the second defendant under a registered sale deed dated 24.06.1981 for a sum of Rs.10,000/- and has delivered possession to him and that he continues to be in possession of the property. D2 also gave a separate reply Ex.A4 refuting the plaintiff’s notice. Thereafter, the plaintiff filed the present suit on 04.07.1984. The first defendant remained ex parte having sold the property to the second defendant and the second defendant alone contested the suit by filing a written statement by raising pleas as above and further claimed that he is the bonafide purchaser of the property without notice of the alleged suit agreement Ex.A1. The trial Court, therefore, framed the following issues: 1. Whether the plaintiff is entitled for specific performance of the agreement as prayed for? 2. Whether the sale agreement does not bind 2nd defendant as he is an innocent purchaser for valuable consideration? 3. Whether the 2nd defendant had notice of the sale agreement at the time of registration? 4. To what relief? 4. On the basis of the oral evidence of plaintiff himself as P.W.1 and Exs.A1 to A6 marked on his behalf and the evidence of D.Ws.1 to 3 for defendants and Exs.B1 to B3 marked on behalf of the second defendant, the trial Court proceeded to answer issue No.1 in favour of plaintiff by holding that the suit agreement was executed by the first defendant and on issue No.2 it came to hold that the second defendant had notice of the prior agreement Ex.A1 and as such, he is not a bonafide purchaser for value without notice. Consequently, the plaintiff’s suit was decreed by judgment and decree dated 23.08.1993. On appeal being A.S.No.85 of 1993 by the second defendant before the lower appellate Court, the said judgment and decree of the trial Court has been confirmed by judgment and decree dated 01.02.1999. Hence, this second appeal. 5. By order dated 06.07.1999, this Court admitted the second appeal on the substantial questions of law as raised in ground No.7 (a) to (d) in the memorandum of grounds of appeal, which are as follows: 7. The following are the substantial questions of law that arises for consideration of the Second Appeal. A) Whether the appellate Court below has committed error in law in not formulating the correct issues with regard to the substantial grounds raised in the appeal by the appellant as required under Order XLI Rule 31 CPC? B) Whether the Courts below have committed error in law in not framing the issues of limitation raised by the appellant and not adverting to the same though specific ground was taken by the appellant that the suit is barred by limitation? C) Whether the Courts below have committed error in law in not construing the evidence of the appellant who lead in negative the ignorance of earlier sale agreement of Ex.A1, and that the sale deed dt. 24-6-1981 is saved by Section 19(b) of the Specific Relief Act? D) Whether the Courts below have committed error in law in considering the oral evidence of D.W.3, the attestor of Ex.B-1 and arriving at the conclusion of non-passing of sale consideration which is contrary to Sec. 92 of Evidence Act, 1872? 6. Heard the learned counsel for the appellant and the learned counsel for the first respondent. 7. Learned counsel for the appellant contends that the several discrepancies in the suit set up by the plaintiff remained unnoticed by both the Courts below, particularly, that the suit agreement – Ex.A1 though dated 01.05.1981, for the first time the plaintiff acted thereon by issuing Ex.A2 notice dated 11.04.1984 i.e. almost after three years. Thereafter, the suit has been filed only on 04.07.1984. The question of readiness and willingness of the plaintiff with reference to the time, as plaintiff himself has taken in approaching the Court, being relevant circumstance; both the Courts below have ignored the same while decreeing the specific performance in favour of the plaintiff. Learned counsel also raises question as to the second defendant being bonafide purchaser for value without notice by contending that the sale deed in favour of the second defendant is dated 24.06.1981 and it is evident that the suit came to be filed three years thereafter. The said sale deed marked as Ex.B1, therefore, cannot be said to be hit by Section 19(1)(b) of the Specific Relief Act, 1963 (for short ‘the Act’), as there is no evidence to show that the second defendant had notice of the agreement Ex.A1 and that he was not a bonafide purchaser. 8. Learned counsel also criticized the reasoning of the lower appellate Court, particularly, while dealing with issue No.2 by contending that the lower appellate Court has gone by subsequent conduct of the second defendant selling the suit schedule property to one Reddeppa Chetty and that conduct has been taken into consideration by the lower appellate Court to conclude, as if the second defendant had notice of the suit agreement. Learned counsel also places reliance upon two decisions of the Honourable Supreme Court in HERO VINOTH v. SHESHAMMAL[1] to substantiate that misconstruction of document or wrong appreciation of principles of law amounts to substantial questions of law justifying the interference under Section 100 of the Civil Procedure Code, 1908. Another decision of the Supreme Court in AZHAR SULTANA v. B. RAJAMANI[2] is also relied upon for the proposition that an original vendor as well as subsequent purchaser would be entitled to raise all contentions in opposing the plaintiff’s suit for specific performance. 9. On the contrary, the learned counsel for the first respondent has very vehemently contended that no substantial questions of law arise for consideration in the present second appeal and that concurrent findings of both the Courts below warrant no interference in the present case. Learned counsel has made forceful submission that under Section 19(1)(b) of the Act the second defendant failed to discharge the burden cast on him and as such, the findings of both the Courts below that he is not a bonafide purchaser requires no interference. Learned counsel has placed reliance upon a judgment of the Supreme Court in R.K. MOHAMMED UBAIDULLAH v. HAJEE C. ABDUL WAHAB[3] to substantiate the legal position with reference to Section 19(b) of the Act and contends that protection under the said provision is an exception to the general rule and as such, onus on proof of good faith is on the purchaser, who takes such a plea that he is an innocent purchaser. Good faith is a question of fact to be considered and decided on facts of each case. He also relied upon a decision of this Court in Y. RAMALINGA REDDY v. CHARLA GOLLA VENUGOPAL[4] for the proposition that concurrent findings of fact with relation to Section 19(b) of the Act are not open for interference under Section 100 CPC, on the ground that such concurrent findings are recorded on the basis of discretion exercised by both the Courts below, which cannot be interfered with by the second appellate Court under Section 100 CPC. Learned counsel also refuted other ancillary contention of the appellant’s counsel that the lower appellate has not framed proper points for consideration under Order XLI Rule 31 CPC, by contending that the lower appellate Court has discussed the evidence on each of the issues and has given a finding, which is a substantial compliance of Order XLI Rule 31 CPC. 10. In the light of these contentions, I have examined the findings of both the Courts below with reference to the substantial questions of law formulated in this appeal. I have also seen original Ex.A1 from the record. At the outset, I find the judgment of the lower appellate Court wholly unsatisfactory for two principal reasons. Firstly it has framed a point for consideration in the following manner: Whether the judgment and decree passed by the trial Court is liable to be set aside? Secondly, I do not find any finding of the lower appellate Court on issue No.2 framed by the trial Court with respect to whether defendant No.2 is a bonafide purchaser for value without notice. The reasons for these conclusions are as under. 11. Under Order XLI Rule 31 CPC the first appellate Court being a final Court of fact is required to formulate and answer the questions of fact as well as questions of law. The issues, which arise in a suit for specific performance, as in the present case, deal with various questions as to readiness and willingness of plaintiff, the bonafide of the transaction with reference to serious contention on the stamp paper on which Ex.A1 is engrossed and the conduct of the plaintiff in approaching the Court seeking specific performance etc. Each of these questions were required to be formulated and answered by the lower appellate Court inasmuch as it was exercising discretion under Section 20 of the Act, as a final Court of fact. Secondly, another important aspect, as to whether the second defendant is a bonafide purchaser for value without notice of suit agreement, directly referring to exception under Section 19(b) of the Act also specifically arises in the appeal. The trial Court had framed specific issue No.2 on that aspect. In the light of this, therefore, the lower appellate Court framing a point as to whether the judgment of the trial Court is liable to be set aside can hardly be said to be a point required to be framed under Order XLI Rule 31 CPC. 12. With respect to the second aspect, whether the second defendant is a bonafide purchaser for value was a matter, which was considered by the lower appellate Court in Para 15 of its judgment. Though in the first sentence of the said para correctly mentions the point for consideration, the subsequent part of the paragraph proceeds to reject the case of the second defendant on the basis of his subsequent conduct of selling the suit schedule property to one Reddeppa Chetty pending the suit. The lower appellate Court proceeds with the discussion with the part of the conduct of the second defendant and relied upon the said circumstance to conclude that the second defendant had notice of the suit agreement. Firstly, the subsequent conduct of the second defendant pending the suit has no relevance to assess as to whether he had notice of the suit agreement when he purchased the property. Secondly, the sale of the property by the second defendant to said Reddeppa Chetty is not the subject matter of the present proceedings and we are not concerned as to whether the said Reddeppa Chetty is a bonafide purchaser or not. The said aspect, therefore, clearly besides the question involved in the matter and outside the issue No.2 arising in the suit. 13. Learned counsel for the first respondent placed strong reliance upon the following sentence in the lower appellate Court’s judgment to contend that the lower appellate Court has given an adverse finding against the second defendant under Section 19(b) of the Act. In fairness, therefore, the sentence relied upon by the respondent’s counsel is extracted hereunder: “The relation of the said Reddeppa Chetty to the first defendant as her elder brother and his venturing to purchase the same suit schedule land said to have been purchased by second defendant under Ex.B1 from the first defendant go to show that the defendants 1, 2 and the said Reddeppa Chetty were having knowledge of execution of agreement of sale Ex.A1 in favour of the plaintiff.” 14. I am unable to see how this sentence can be read as a finding against the second defendant under Section 19(b) of the Act. The aforesaid sentence read in entirety only points out that because the second defendant has sold the property to Reddeppa Chetty pending the suit, knowledge of all of them on the suit agreement is presumed. What the lower appellate Court was required to consider was whether on the date of Ex.B1 sale deed in favour of the second defendant, whether the second defendant had knowledge and notice of suit agreement Ex.A2. There is no finding on that aspect by the lower appellate Court. 15. The decision in HERO VINOTH’S case (1 Supra) cited by the learned counsel for the respondent would have been of great assistance in the present case if there was any finding by the lower appellate Court on Section 19(b) of the Act and as the said issue No.2 was not decided by the lower appellate Court, in view of the aforesaid decision itself there is an error committed by the lower appellate Court inasmuch as ‘good faith’ as a question of fact is required to be considered and decided on facts of each case. 16. So far as the decision in AZHAR SULTANA’s case (2 supra) is concerned, the same would not apply in the facts of the present case inasmuch as there is no concurrent findings as envisaged and as found by this Court on the facts of the aforesaid decision. 17. I am, therefore, satisfied that the substantial questions of law (a) and (c) under para 7 of the grounds of appeal deserve to be answered in favour of the appellant. The impugned judgment is set aside and A.S.No.85 of 1993 shall stand remitted to the learned Additional District Judge, Madanapalle, for fresh consideration in accordance with law. All questions to be raised by both sides are kept open and the lower appellate Court shall deal with all such questions and dispose of the appeal afresh. The second appeal is allowed. The costs of this appeal shall await the result of the appeal before the lower appellate Court, as remitted hereinabove. _____________________ VILAS V. AFZULPURKAR, J September 30, 2010 DSK [1] AIR 2006 SC 2234 [2] AIR 2009 SCW 2789 [3] (2000) 6 SCC 402 [4] 2005 (3) ALT 684