IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.206 of 2009 1. Sidheshwar Singh @ Singeshwar Singh, Son of late Bhola Singh. 2. Mahendra Singh & Mahendra Narain, Son of late Bhola Singh. 3. Hriday Singh & Hriday Narain, S/o Late Bhola Singh. 4. Kaushalendra Singh & Kaushalendra Narain, Sons of late Bohla Singh. 5. Urmila Devi, D/o late Bohla Singh. All residents of village + P.O.-Barara, P.S.-Noorsarai, District- Naland. ………..Plaintiffs-Respondents-Appellants Versus 1. Satyendra Kumar @ Firangi Singh, Son of Late Saryug Singh, Resident of village-Barara, P.S.-Noorsarai, District-Nalanda. ……..Defendant-Appellant-Respondent 2. Sona Devi, W/o Ram Bilash Giri. 3. Radhay Giri. 4. Pramod Giri Both sons of late Ram Bilash Giri 5. Chinta Devi 6. Sunita Devi Both daughters of late Ram Bilash Giri, All residents of Village-Domanbigha, P.S.-Hisua, P.O.-Hisua, District-Nawada. ………..Plaintiffs-Respondents-Respondents. ----------- 8/- 29.06.2011 This second appeal has been preferred against the judgment dated 2.4.2009 and the decree dated 13.4.2009 passed by the learned District Judge, Nalanda at Biharsharif in Title Appeal No. 15 of 2008, whereby the judgment dated 27.2.2008 and decree dated 9.3.2008 passed by the learned Munsif, Biharsharif, Nalanda, in Title Suit No. 48 of 1986 has been reversed. For the sake of convenience the parties will be referred to as arrayed in the Original Title Suit No. 48 of 1986. 2 The learned Munsif, Biharsharif had decreed the suit on contest with cost, directing the defendant No. 1 along with defendant No. 2 to execute a deed of sale in favour of the plaintiff on the basis of deed of agreement dated 11.4.1968 on receipt of rest consideration amount of Rs. 500/- and defendant No. 2 was held entitled to get amount of consideration mentioned in his deed of sale, failing which, it was directed that plaintiff would be entitled to get the deed of sale executed through process of the Court of Law. Against the said judgment and decree the defendant No. 2 had filed Title Appeal No. 15 of 2008 in the Court of District Judge, Nalanda at Biharsharif. The said Title Appeal No. 15 of 2008 was allowed by judgment dated 2.4.2009 and decree dated 13.4.2009 by the learned District Judge, Nalanda at Biharsharif and the judgment and decree passed in Title Suit No. 48 of 1986 was set aside, holding that the defendant No. 2 was a bona fide purchaser for value without notice to the deed of agreement of plaintiff dated 11.4.1986, and therefore, this point was decided against the plaintiff and in favour of defendant No. 2, who was appellant in the court below, reversing the finding of the trial court. Against the said judgment of reversal, the second appeal has been preferred by the appellants, who 3 were plaintiffs in the original suit and respondents in the title appeal. The fact of the case in brief is that the original plaintiff, Bhola Singh whose heirs Mostt. Chando Devi and his sons and daughters have been substituted in his place, filed Title Suit No. 48 of 1986, seeking the relief that a decree for specific performance of contract in favour of plaintiff and against the defendants in respect of agreement to sale dated 11.4.1986, be passed. The plaintiff also prayed for a decree to be passed by the Court that within prescribed period by the Court, the defendants be directed to execute a deed of sale in respect of the suit land after taking rest amount of consideration of Rs. 500/- from the plaintiffs. The further prayer of the plaintiff in the original suit was that if the defendants fail to execute the deed of sale, in that case, through the process of the Court of Law a deed of sale be got executed and registered on deposit of rest consideration money and possession be delivered to the plaintiffs of the suit land and cost of the suit be also awarded to the plaintiffs. The aforesaid relief had been sought for on the pleading that the original plaintiff, one Ram Bilash Giri (Defendant No. 1) had executed a deed of agreement (unregistered) dated 11.4.1986 in favour of original 4 plaintiff, Bhola Singh, who had subsequently been substituted by his heirs. The deed of agreement had been executed in respect of Khesra Chak No. 5694 (new)/3189 (old), area 2 decimal under Khata No. 274, P.S. No. 73. The suit land belonged to Ram Bilash Giri. Ram Bilash Giri had necessity for money for marriage of his daughter for which he wanted to sale property as he had no other source for arranging money. Therefore, Ram Bilash Giri declared to sale the suit land and on negotiation, it was agreed at a value of Rs. 2,500/- and the plaintiff agreed to purchase. It was further pleaded by the plaintiff that in village Consolidation Proceeding was going on and final publication was not made and without taking permission there was difficulty in getting the deed of sale registered. Since, Ram Bilash Giri had urgent need of money, and, therefore, Rs. 2,000/- out of Rs. 2,500/- was demanded for expenses of marriage and on getting permission deed of sale was agreed to be executed. The rest consideration Rs. 500/- was to be given within two to two and half months at the time of execution of deed of agreement. The further pleading was that plaintiff became ready and a deed of agreement for receipt of Rs. 2,000/- on 11.4.1986 was scribed by one Ayodhya Prasad and after understanding the same L.T.I. was put thereon in 5 presence of witness. The plaintiff had further pleaded that in village, it came to know that defendant No. 1, Ram Bilash Giri had sold the suit land in favour of defendant No. 2, namely Satyendera Kumar Singh @ Firangi Singh and deed of sale has been registered. The plaintiff pleaded that the defendants turned dishonest and they conspired together and with dishonest intention a deed of sale had been executed. It was pleaded that defendant No. 2 was not a bona fide purchaser for value without notice and defendant No. 2 had knowledge about the execution of deed of sale. It has further been pleaded that plaintiffs are still ready and willing to take deed of sale on payment of rest amount of Rs. 500/-. The plaintiffs asked to execute and register a deed of sale on receipt of Rs. 500/- but, they refused therefore, the suit had been filed. It is worthy to mention here that original defendant No. 1, Ram Bilash Giri died and his heirs had been substituted vide order dated 24.8.2000 by the trial Court. Substituted defendant No. 1 appeared and filed a written statement, pleading therein that her deceased husband Ram Bilash Giri had sold 2 decimal of suit land to defendant No. 2 on receipt of consideration money and got registered deed of sale on account of need and Satyendera Singh @ Firangi Singh (Defendant No. 2) came 6 in possession of the suit land. It has further been pleaded that her husband, Late Ram Bilash Giri never executed deed of agreement in favour of original plaintiff, Bhola Singh. No negotiation had taken place with Bhola Singh for suit land and her husband had not received money as advance from original plaintiff, Bhola Singh. It was further pleaded that the deed of agreement as mentioned in the plaint was false, fabricated and her husband never put L.T.I. on that. Defendant No. 2, who was appellant in the court below, has pleaded in his writ statement that the suit as framed was not maintainable. No cause of action had arisen in favour of the plaintiff. The suit was barred by provision of Specific Relief Act and defendant No. 1 had not executed deed of agreement on 14.6.1986 in favour of original plaintiff, Bhola Singh and no negotiation had taken place with Bhola Singh. He has further pleaded that Ram Bilash Giri had need for money and he declared for sale and defendant No. 2 negotiated with Ram Bilash Giri and Rs. 3, 500/- was fixed as consideration money for purchase of two decimal land. The negotiation had taken place on 1.4.1986 and defendant No.2 after arrangement of money got the sale deed executed and registered on 30.4.1986 on payment of entire consideration money to Ram Bilash Giri. Section 19 of the Specific Relief Act, 7 1963, to the extent it is relevant, reads: “19. Relief against parties and persons claiming under them by subsequent title- Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against- (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; (c) ………….. (d) …………. (e) ………….” As can be seen from Section 19 (a) and (b) extracted above specific performance of a contract can be enforced against (a) either party thereto and (b) any person claiming under him by a title arising subsequent to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Section 19 (b) protects the bona fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of exception to the general rule. It was also pleaded that deed of agreement executed on 11.4.1986 was forged & fabricated and Ram Bilash Giri never put L.T.I. on deed of agreement and did 8 not receive Rs. 2,000/-. It was also pleaded that defendant No. 2 was a bona fide purchaser for value with consideration and without notice. It has also been pleaded on behalf of defendant No. 2 that after negotiation with original defendant, Ram Bilash Giri, a petition was filed before Consolidation Officer for permission and on inquiry, permission was granted in Permission Case No. 77 of 1986 and Late Ram Bilash Giri was permitted to execute a sale deed. On the basis of pleading of parties, the trial Court framed issues. The main issues which are important for consideration of the present second appeal was as to whether defendant No. 2 is a bona fide purchaser for value without notice to the deed of agreement of the plaintiff and as to whether the plaintiffs are entitled to a decree for Specific Performance of Contract as sought for on the basis of deed of agreement dated 11.4.1986. The trial court had decided both the issues in favour of the plaintiff and against the defendants in paragraph 11 of the judgment dated 26th February, 2008. Being aggrieved by the judgment and decree of the trial court, defendant No. 2 had filed an appeal in the court of District Judge, Nalanda at Biharsharif. The Appellate Court has gone into minute details of the 9 evidence adduced on behalf of the parties and has taken note of oral as well as documentary evidence and after considering the entire evidence has given a finding that defendant No. 2 was a bona fide purchaser for value without notice to the deed of agreement of plaintiff dated 11.4.1986. The First Appellate Court has also given a finding that the plaintiffs are not entitled to a decree for Specific Performance of Contract as sought for on the basis of deed of agreement dated 11.4.1986. On both these counts finding given by the Trial Court has been reversed. The learned Advocate for the appellant in the present second appeal has framed following substantial question of law:- (i) Whether the judgment and decree passed by learned Lower Appellate Court is maintainable either in law or on facts? (ii) Whether the learned Lower Appellate Court has erred in reversing the finding given by the learned Trial Court. (iii) Whether the learned Lower Appellate Court has committed error of record in holding that PW 3 Rameshwar Singh has not stated that the Satyendra Singh had the knowledge of mahadenama exhibit 1 through the said witness has clearly stated in paragraph 11 of his deposition that he himself told Satyendra Singh about the mahadenama exhibit 1. 10 (iv) Whether the PW 5 (plaintiff) has clearly stated in his evidence that Satyendra Singh had the knowledge of the mahadenama (Ext 1) and therefore the learned Lower Appellate Court has erred in holding that the plaintiff has not proved that the subsequent purchaser Satyendra Singh had the knowledge of mahadenama. (v) Whether both the courts have given a finding that the mahadenama is genuine and the Plaintiff was always ready to perform his part of the contract still the learned lower Appellate Court rejected the claim of the plaintiff. (vi) Whether the learned lower Appellate Court has committed error of law in reversing the finding of the learned trial Court on the question of point no. 1 & 2. (vii) Whether the finding of the lower Appellate Court is perverse and against the evidence on record. (viii) Whether the learned lower Appellate Court has misread the evidence of PW 5 and came on a wrong conclusion. (ix) Whether the plaintiff has proved his case about the knowledge of mahadenama to the Defendant No. 2 by evidence of PW-2, PW-3 and PW-5 and therefore the finding on this issue by the learned lower Appellate Court cannot be sustained in the eye of law. (x) Whether the learned lower Appellate Court has overlooked the decisions filed before 11 him on behalf of this Appellant and came on a wrong conclusion. (xi) Whether the impugned judgment and decree passed by the learned lower Appellate Court is against the evidence on record and the same is fit to be set aside. After having heard learned counsel for the appellant and perusing the judgment of both the courts below, I am of the view that the findings of the trial Court on the two issues stated above which are (i) whether the plaintiffs are entitled to a decree for Specific Performance of Contract as sought for on the basis of deed of agreement dated 11.4.1986 and (ii) whether the defendant is a bona fide for value without notice to the deed of agreement to the plaintiff, are erroneous on facts and contrary to the evidence adduced on behalf of the parties. I further find that the trial court has given finding in favour of the plaintiff and against defendant No. 2, regarding the issue with respect to bona fide purchaser for value without notice to the deed of agreement of plaintiff without discussing any evidence in this regard making the finding perverse and against the evidence on record. I am in total agreement with the view taken by the First Appellate Court in its judgment, which is under challenge in second appeal, regarding the aforesaid 12 issues. Now, let this case be examined from the angle as to whether the substantial questions of law formulated in the memorandum of appeal are really substantial questions of law. In the circumstances, I am of the view that appellant has failed to satisfy the court that any substantial question is involved in this appeal. The Hon’ble Supreme Court has, time and again, explained the scope of Section 100 of the C.P.C. more particularly in Gurdev Kaur and Ors. Vs. Kaki and Others, reported in (2007) 1 SCC 546, where it was held that even before 1976 amendment the scope of such interference under Section 100 of CPC drastically curtailed and narrowed down. It is specifically held that High Court would have jurisdiction of interfering only in a case where substantial questions of law are involved, and, thus, question are clearly formulated in the memorandum of appeal. The questions formulated in the present case are neither the question of law nor substantial question of law. The substantial question of law has been explained in the decision given in the case of Boodireaddy Chandraiah & Ors. Vs. Arigela Laxmi and Anr., reported in 2007 AIR SCW 7062, according to which, it must be debatable nor previously settled by law of the land or a binding precedent and must have a material 13 bearing on the decision of the case and must go to the root of the matter. No such question has been raised in the present memorandum of appeal. The questions of law formulated by the learned counsel for the appellant in memorandum of appeal are all questions of fact and no substantial question of law is involved in the present second appeal. Therefore, I hold that this second appeal cannot be entertained and, hence, the same is being dismissed, while, being heard under Order 41 Rule 11 of the C.P.C. at the stage of admission itself. Sanjeet/- (Ashwani Kumar Singh, J.)