IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII Rule 32 (2) (b) Description of the case. Second Appeal No. 75 of 2002 Decided on 05.10.2002 Smt. Razia Khatoon & ors. Appellants. Vs. Mst. Naima Khatton & ors. Respondents. A.F.R. (Approved for reporting) __________________ Not approved for reporting Date 05.10.2002 Initial of Judge Note- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for Signature. COURT NO.3 Second appeal no.75 of 2002. Smt. Razia Khatoon and others------------------------ ---------Appellants Versus Mst. Naima Khatoon and others---------- Respondents And Second appeal no.76 of 2002. Smt. Razia Khatoon and others------------------------ ---------Appellants. Versus Mst. Naima Khatoon and others---------- Respondents Hon’ble Irshad Hussain J. These two second appeals under section 100 of the code of Civil Procedure are directed against the impugned judgment and decree dated 8.7.2002 passed by the Additional District Judge, I Fast Track Court, Nainital in civil appeal Nos.16 of 1995 and 17 of 1995, which were also preferred by these appellants against the judgment and decree passed by the Civil Judge, Nainital on 30.5.1987 in civil suit Nos.7 of 1978 and 88 of 1978. The facts giving rise to the filing of the present appeals are that the appellants predecessors-in-interest Haji Nabi Ahmad (who died during the pendency of the civil suits) entered into an agreement to sell as double storey building having three shops and its rear portion bearing Municipal numbers 595-600 (new number 23/89) with Mahboob Elahi (who died during the pendency of the first appeals) for a price of Rs. 40,000.00 A sum of Rs. 15000.00 was paid as advance. Possession of the upper storey and rear portion having a shop in the tenancy of Gandhi Ashram was delivered and with these recitals the agreement of sale was reduced into writing and signed by the parties on 16.12.1976. As the seller- executant failed to perform his part of contract Mahboob Elahi filed suit no.7 of 1978 on 1.2.1978 for specific performance of the contract after notice to the said executant. The seller-executant resisted not only the above suit but himself also filed suit no.88 of 1978 on 23.12.1978 alleging, inter alia, that he had neither agreed to sell his said property nor executed an agreement of sale in favour of Mahboob Elahi; that neither any amount was received by him as advance nor delivery of possession of the property was given; that on 21.5.1977 at about 5 p.m. he was summoned to the shop of the said purchaser who had with the help of an employee and two gundas obtained his signatures on stamp and blank papers on pistol point under threat; that in the succeeding nigh the possession of the property was forcibly taken be braking o-pen the locks and that the forged agreement of sale cannot legally be enforced. He has, in the suit filed by him, claimed relief of ejectment and recovery of compensation and damages. Both the civil suits were consolidated and disposed of by the trial court by judgment and decree dated 30.5.1987. The suit for specific performance of the contract was decreed whereas civil suit filed by the seller-executant was dismissed. First appeals preferred were dismissed vide judgment and decree dated 8.7.2002. Now these second appeals have been preferred against the said judgment and decree. On the admission of the appeals heard Sri Somesh Khare, learned counsel for the appellants and Sri C.D.Jain, learned counsel for the respondents. From perusal of the paper book it is obvious that both the courts have recorded concurrent findings of fact as to the genuineness of the agreement of sale and on question of possession of the subject matter of the agreement. The learned counsel for the appellants could not point out any dispute as to the broad features and facts of the case referred to above but argued that the findings are not based on proper and fair appraisal of the evidence on record and further that the findings in regard to the payment of advance money being a mixed question of fact and law had not been considered in proper prospective and keeping in view the provision of section 16 of the Specific Relief Act, 1963, specific performance of the contract could not have been enforced. It was submitted that the discretion as to decreeing the specific performance was exercised arbitrarily and there being existence of the substantial question of law on this point in these appeals, these need to be admitted for decision on merit. It is well settled that the existence of substantial question of law is a condition precedent for the High Court to assume jurisdiction of entertaining second appeal and when there are concurrent findings of fact and the courts below have neither misconceived the principle of law nor committed any error in application of facts, the findings cannot be put to challenge ins second appeal. Having considered the legal aspects of the case and the submissions of the learned counsel, it may be pointed out at the outset that substantial question of law is not involved in these appeals and these cannot be admitted for decision on merit. In regard to the findings of fact as to the genuineness of agreement of sale dated 16.12.1976, there are statements of the purchaser Mahboob Elahi (P.W.1) and the scribe of the document Daulat Singh Manral (P.W.2) who have proved due execution of the agreement. Their evidence was considered in proper prospective and the contention on behalf of the seller-executant that it was a forged document was rejected. The statements of the witnesses of the appellants including Naim Ahmad (D.W.1) son of the seller-executant were also duly weighed by the courts below in coming to the conclusion that the agreement of sale is a genuine document and that the parties have entered into agreement of sale. It will not be out of place to mention that out of eight witnesses examined on behalf of the appellants none has claimed that in his presence Hazi Nabi Ahmad was forced under threat to make his signature on blank stamp and plain papers on 21.5.1977. It is also of significance that there is nothing to indicate that the matter was reported to the police soon after the occurrence or in the next morning of the occurrence. In view of this, it is obvious that the evidence has been appraised by the courts. below in proper prospective leading to the above conclusion. Likewise the evidence was considered and appreciation was made to return a finding that the possession of the property as mentioned above was delivered at the time of the said agreement. The findings on these points are purely findings of fact and are binding on the court in second appeal. So far as the payment of advance of Rs. 15,000.00 is concerned, the finding in this regard is also a finding of fact. It has been accepted that the purchaser had paid Rs. 9680.13 in c ash at the time of execution of agreement whereas sum of Rs. 2400.oo was paid to the executant on 14.12.1976 through a bank pay order and sum of Rs. 2919.87 which was in deposit in the court in the proceedings under section 7 C of U.P. Act no. III of 1947 in favour of seller-executant was agreed to be withdrawn by him. The purchaser happened to be the tenant of a shop in that property and since due rent was paid out side the court, the sum was agreed to be adjusted towards advance. The executant acknowledged the receipt of the advance in this manner by categorical recital in the agreement of sale. It was also submitted that sum of Rs.2919.87 was neither received at the time of the execution of the agreement not the said amount has been withdrawn by the seller-executant therefore, the courts below should have held that the advance against the agreed consideration was not paid and in view thereof, the agreement being incompetent the specific performance of the contract as contemplated and in view of section 16 of the Specific Relief Act could not have been enforced in favour of the purchaser. The provision of section 16 (a) of the said Act as pointed out is of no help to the appellants in the facts of the case and also because the evidence led is to the effect that since rent payable by the purchaser in respect of the shop in his tenancy was paid in cash to the executant in view of the agreement of the year 1975, it was quite normal for the seller- executant to agree to adjust sum of Rs.2919.87 also towards the advance. In the face of the above facts and in view of the concurrent findings of the courts below, the cited decision of the Apex Court in the case of Vidyadhar Vs. Mankikrao & Anr. 1999 (2) Civil Court Cases 91 (SC) cannot be of any help to the appellants. In the reported case, it has been held that to constitute a sale as contemplated under section 54 of the Transfer of Property Act, 1882, the parties must intend also to pay the agreed price of the property either in presenti or in future. The agreement of sale, cope of which is in the paper book, does not admit of any adverse inference in regard to the intention f the parties and the reported decision does not in any was support the argument that the above mode of payment of advance money does not satisfy the essential requirement of sale of property. Another decision of the Supreme Court in the case of Tarseem Singh Versus Sukhminder Singh, 1998 (3) Civil LJ 207 was also pressed into service by the learned counsel for the appellants to stress that there being misunderstanding about the payment of advance money in pursuance of the agreement of sale and the same being a mistake as to matter of fact, the agreement becomes void and at the most the alleged purchaser could have been granted relief of refund of money only. As is evident from the facts of the case, there was no misunderstanding about the mode of payment of advance money and, therefore, this decision also in of no help to the appellants and in turn, it has to be mentioned that substantial question of law on this issue is not involved in these appeals. A recent decision of the Apex Court in the case of Yadarao Dajiba Sharawane(dead) by Lrs. Vs. Nanilal Harakchand Shah(dead) and Ors., JT2002(5) SC 579 was also cited from the side of the appellants. In this case, it was held that if judgment is based on mis-interpretation of documentary evidence or ignoring material evidence. The High Court in second appeal is entitled to interfere with the judgment. Nothing from the material in the paper book could be pointed out as may indicate any mis- reading of the material evidence or mis-interpretation of the documentary evidence and, therefore, the facts of the reported case being at variance this decision also does not salvage the situation to the benefit of the appellants. As regards the contention that in decreeing the specific performance of contract the courts below exercised discretion arbitrarily, ignoring the spirit of the provisions of section 20 of the Specific Relief Act, it need to be reiterated that the executant entered into the conscious agreement of sale; received advance money against consideration and also delivered possession of the part of the property to the purchaser making his intention clear in regard to the intended sale and, therefore, in a situation like this, the other party to the agreement having performed his part of the contract was rightly granted decree of specific performance. On this aspect also the mater does not involve any substantial question of law. For the above reasons, it is not a fit case for interference in second appeal and these appeals, therefore, cannot be admitted. These tow appeals are dismissed in limine. Let the original judgment be kept on the record of second appeal no.75 of 2002 and a copy thereof be placed on the record of second appeal no. 76 of 2002. (Irshad Hussain J.) 05.10.2002 MPS