IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.168 of 2007 1.Mahabir Choudhary, Son of Late Devi Dayal Choudhary, R/o Village-Bharsara, P.O.- Barki Akorhi, P.S.- Kargahar, District- Rohtas.—----------------------Plaintiff-Appellant—Appellant. Versus 1. Shivashray Choubey ,Son of Late Sukhari Chaubey . 2. Mostt. Hiramuni Kuer, W/o late Ramashray Choubey. 3. Mahendra Choubey. 4. Birendra Choubey, Son of late Ramashray Choubey. 5. Dayashankar Choubey, Minor. 6. Gautam Choubey. 7. Santosh Choubey, All Minor Sons of Late Ramashray Choubey . All R/o Village- Bharsara, P.O. Barki Akorhi, P.s.- Kargahar, District-Rohtas Guardianship of Mostt. Hira Muni Kuer the mother and natural guardian. --------Defendant—Respondent—Respondent Ist Set. 8.Jai Prakash Singh, S/o Parmeshwar Singh. 9.Ram Singhasan Singh, Son of Late Sumeshwar Singh. 10.Madodri Kuer, W/o late Sudarshan Chodhary. 11.Hari Shankar Choudhary. 12.Ram Pravesh Choudhary. 13.Ram Awadhesh Choudhary, Sons of late Sudarshan Choudhary. 14.Rameshwar Choudhary, Son of late Sukar Choudhary. R./o Village-Bharsara, P.O.Barki Akorhi, P.S.-Kargahar, District- Rohtas.------Defendant—Respondent—Respondent 2nd Set. ----------- 6. 02.08.2011 Heard the learned counsel, Mr. Mahesh Prasad appearing on behalf of the appellant in support of this appeal. 2 This appeal has been filed against the judgment and decree dated 19th May, 2007 passed by Additional District & Sessions Judge (F.T.C. No.4) Rohtas at Sasaram, in Title Appeal no.78/99/08/2007 affirming the judgment and decree dated 28.07.1999 passed by Sub Judge I, Sasaram in Title Suit no. 424 of 1997. The plaintiff has filed the Title suit no. 424 of 1997 claiming the relief for specific performance of contract with respect to schedule Ka property mentioned in the plaint on the basis of an agreement for sale alleged to have been executed by Sukhari Choubey on 13.12.1994. It is the case of the plaintiff that Sukhari Choubey died on 13.12.1994 and therefore after giving notice to his heirs and on their refusal the plaintiff has filed the suit impleading them as parties. It is also the case of the plaintiff that the defendants have executed a sale deed for the suit land in favour of the defendant 2nd set and therefore the defendant 2nd set had been impleaded as defendants by way of being subsequent purchasers with assertion of prior notice of the plaintiff’s agreement for sale. The defendants appeared and filed their written statement contesting the claim of the plaintiff. The specific case of the defendants is that Sukhari Chaubey died on 26.10.1989 and not on 13.12.1994 as claimed by the plaintiff and 3 on that basis the defendants have challenged the genuineness and validity of the agreement for sale which is the basis of the suit of the plaintiff. The title suit has been dismissed with the finding that the agreement for sale is not valid and genuine document because Sukhari Chaubey the alleged vendor was not alive on 14.4.1994 when the agreement for sale is alleged to have been executed. The trial court has also recorded the finding that the plaintiff had failed to prove by reliable evidence that Sukhari Chaubey was alive in 1994 and on the basis of evidence including Ext. A and A/1 produced by the defendants, the trial court came to the finding that Sukhari Chaubey was not alive at least on 02.08.1991 which was the date of the documents i.e. Ext. A and A/1. The appellate court reconsidered the evidence as well as the grounds raised by the plaintiff appellant in assailing the judgment of the trial court and came to the finding that Sukhari Chaubey was not alive on 02.08.1991 which is the date of the execution of sale deeds ext. A and A/1 and thus the learned appellate court has affirmed the finding recorded by the trial court that the agreement for sale propounded by the plaintiff is not genuine and valid document. 4 The learned counsel appearing on behalf of the petitioner in support of this appeal has contended that both the courts below have erred in law in considering and relying upon the contents of Ext.A and A/1 against the plaintiff who was not a party to that document. His contention is that the said two documents were not admissible in evidence against the plaintiff on that score and therefore the plaintiffs could not have been non-suited on the basis of those two documents. The further contention of the learned counsel for the appellant is that non framing of specific issue regarding the date of death of Sukhari Chaubey has resulted in imperfect trial and has prejudiced the case of the plaintiff. The learned counsel has also emphasized upon the fault in the judgments of both the courts below due to non consideration of relevant oral and documentary evidence of the plaintiff including the report of the expert and has, thus, submitted that substantial questions of law arise for consideration in this appeal. After considering the submissions of the learned counsel for the appellant and perusing the two judgments of both the courts below, it is clear that the validity and genuineness of the agreement for sale alleged to have been executed by Sukhari Chaubey was the main issue in the suit which was 5 comprehensive enough to include the question as to whether Sukhari Chaubey was alive on the date of the execution of the agreement for sale. From the pleadings also, it appears that the defendants in the written statement had specifically stated that Shukhari Chaubey died in the year 1989 much prior to the alleged date of agreement for sale. Therefore, by no means it can be contended that the plaintiff was not conscious of the controversy regarding the death of Sukhari Chaubey prior to the execution of the agreement for sale. The plaintiff had the full opportunity to lead evidence on this controversy and in fact the plaintiff had led evidence to establish that Sukhari Chaubey was alive on the date of execution of agreement for sale. As such the appellant cannot be heard submitting that non-framing of specific issue regarding the date of death of Sukhari Chaubey had resulted in prejudice to him. The apex court in this regard has held in Nedunuri Kameshwaramma Vs. Sampati Subba Rao reported in A.I.R. 1963 SC 884 as follows:- “No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an 6 issue was fatal to the case, or that there was that mis-trial which vitiates proceedings”. Further both the courts below have extensively considered the evidence on record particularly Ext. A and A/1 which are the sale deeds executed by the sons and widow of Sukhari Chaubey in the year 1991 describing Sukhari Chaubey as dead and have concurrently come to the finding that Sukhari Chaubey was not alive at least on the date of execution of these sale deeds . The submission of the learned counsel for the appellant that these sale deeds could not be binding upon the plaintiffs as they are not parties to them is correct but simultaneously it is also the correct position in law that the recitals made in those sale deeds can be looked into for collateral purpose for ascertaining the death of Sukhari Chaubey prior to the execution of the agreement for sale. Both the courts below have thus legally relied upon Ext. A and A/1 for this collateral purpose. A perusal of the judgments of both the courts below, show that the material evidence of the parties including the voter list at Ext. 8 and 8/A have been taken notice of and considered before reaching to the findings of fact regarding the death of Sukhari Chaubey prior to the execution of the agreement for sale, and thus the submission regarding non-consideration of evidence 7 of the plaintiff has no force. The issues arising in this appeal are concluded by concurrent finding of facts and no substantial question of law arises for consideration in this second appeal, which is, accordingly, dismissed. Nitesh ( V. Nath, J.)