IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.556 of 2009 Surya Narayan Yadav & Ors. Versus Md. Shahadat Mian @ Md. Sahada For the appellants: M/S Amrit Abhijat & Manoj Kr.Gupta ---------------------------------- 7 7-9-2011 Heard the learned counsel, Mr. Amrit Abhijat, appearing on behalf of the appellant in support of this appeal This appeal has been filed against the judgment and decree dated 16-9-2009 passed by the Additional District Judge,F.TC. No.2nd , Supaul, in T.A.No. 75 of 2006(F.A.No. 70/02) reversing the judgment and decree passed by Subordinate Judge-IV, Supaul on 23-1-2002 in T.S.No. 79 of 1996. The plaintiffs are the appellants before this Court against the aforesaid judgment of reversal. The plaintiffs have filed the suit for specific performance of contract with a prayer that the defendant be directed to execute the agreed sale deed with regard to the suit land in favour of the plaintiffs in accordance with law. The plaintiffs have based their claim on the agreement for sale dated 18-4-1996. The defendant appeared in the suit and by filing his written statement has contested the claim of the plaintiffs by specifically denying the validity and 2 genuineness of the aforesaid agreement for sale. Both the parties led their evidence in support of their respective cases and thereafter the trial court has come to the finding that the agreement for sale, as asserted by the plaintiffs to be the basis of their suit, is a valid and genuine document and accordingly the suit was decreed. In appeal by the defendant, the appellate court below appraised the evidence of the parties and has concluded that the agreement for sale is not a valid and genuine document, as claimed by the plaintiffs. Accordingly, the judgment of the trial court was set aside. From the perusal of the judgment under appeal it appears that the appellate court has considered the material evidence of both the plaintiffs and the defendant and on the basis of such consideration has recorded the finding against the plaintiffs. However, the learned counsel appearing on behalf of the appellants has submitted that the points for consideration were formulated just before the writing of the judgment and therefore on that score the findings in the judgment on those points are vitiated in law. In paragraph no.5 of the judgment the appellate court has stated as follows: “ Considering the pleading and the argument 3 advanced by both parties the following issues are necessary to decide the suit(appeal):- I. Whether the alleged mahadanama(ext.1) is a valid and genuine document? II . Whether the respondents/plaintiffs are entitled to any relief or reliefs as prayed for?” From the aforesaid averment in paragraph no.5 of the judgment it is clear that these points have been formulated by the appellate court after the pleading and the arguments were over and necessarily the stage thereafter was to deliver the judgment. Therefore, there appears to be no illegality in formulating the points by the appellate court. Morever, the point no.I which has been formulated by the appellate court is with regard to the validity of the alleged mahadanama. The controversy with regard to the legality and validity of the alleged mahadanama(ext.1) was the core issue between the parties right from the beginning and the judgment of the trial court also shows that both the parties have led their evidence in that regard which have been considered by the trial court as well before recording the finding regarding the validity of the alleged mahadanama(ext.1). There is nothing wrong with the appellate court in reconsidering the said controversy by 4 formulating the same as point no.I . It is not the case of the plaintiff-appellants that this was altogether a new issue/controversy and it has been for the first time taken up for adjusdication by the appellate court. The perusal of the judgment of both the courts below show that both the parties were fully aware regarding this controversy and have gone to the trial knowing fully well that this issue was there to be decided and led their evidence on this issue. As such, the submission of the learned counsel in this regard that this was altogether a new point formulated by the appellate court, which has prejudiced the case of the plaintiffs, is completely misconceived and the reliance upon the decision, reported in 2003(5) Andhra L.T. is also misplaced inasmuch as in the said decision, as placed by the learned counsel, the material issue had been for the first time framed by the appellate court at the appellate stage. The next submission of the learned counsel with regard to the non-consideration of the depositions of some of the defence witnesses who, according to him, have accepted the validity of the agreement for sale in question, has also no force inasmuch as the appellate court has considered the material evidence to reach to the conclusion that the alleged mahadanama(ext.1) has been obtained by 5 the plaintiffs forcibly from the defendants by giving him threat and it was not a document which has been executed by the defendant out of his free will and volition. Non- consideration of some stray part of some of the depositions is not sufficient to vitiate the findings recorded by the appellate court. The learned counsel has further put stress that the criminal trial is pending on the allegation of defendant regarding forcible execution of the alleged mahadanama and the same shall be prejudiced by the judgment passed by the appellate court. There appears to be no authority for the proposition that the civil court will stay its hands from adjudicating a civil dispute in view of the pendency of a criminal trial with regard to commission of some offences arising out of the same transaction. In view of the considerations above, there does not appear to be any substantial question of law arising for consideration in this appeal. This appeal is, accordingly, dismissed. roy ( V. Nath, J.)