HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 1116 OF 2010 DATED 15th SEPTEMBER, 2011. BETWEEN Vendra Narasimha Murthy (died) and LRs …Appellant and Gurrapu Venkateswara Rao and ors ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 1116 OF 2010 JUDGMENT: This Second Appeal under Section 100 of Code of Civil Procedure is filed aggrieved by the judgment and decree dated 23.10.2009 passed by the learned Senior Civil Judge, Narsapur in A.S.No. 37 of 2005, confirming the judgment and decree dated 27.07.2005 passed in O.S.No. 464 of 2003 by the learned Junior Civil Judge, Narsapuram. The first respondent herein is the plaintiff and appellants 1 to 3 and respondents 2 to 4 herein are the defendants in the aforesaid suit. For the sake of convenience, the parties to the second appeal hereinafter are referred to as arrayed in the suit. Few facts that are necessary for the disposal of the second appeal are thus: the plaintiff agreed to purchase the suit property for Rs.32,000/- from defendants 1 to 3. The defendants 1 to 3 executed an unregistered agreement of sale dated 1.8.1992 in favour of the plaintiff by receiving an advance amount of Rs.25,000/-. It was also mutually agreed in between them for payment of the remaining sale consideration of Rs.7,000/- on or before 1.9.1992. Accordingly, the plaintiff paid the remaining sale consideration of Rs.7,000/- on 1.9.1992. However, the defendants did not come forward to execute the registered sale deed. The plaintiff got issued a registered legal notice dated 1.8.1992 . The defendants 1 and 2 though received the same failed to respond thereto. The notice sent to defendant 3 returned, unserved. Hence, the plaintiff filed the aforesaid suit for specific performance of the agreement of sale dated 1.8.1992 or alternatively to refund the entire advance amount of Rs.32,000/- with interest at the rate 18% per annum from 1.9.1992 till the date of filing of the suit. During pendency of the suit, first defendant died. Defendants 4 to 7 who are wife and children of the first defendant were brought on record as legal representatives of the deceased first defendant. Defendants 3, 5 to 7 were set ex parte. The fourth defendant filed a memo adopting the common written statement of the defendants 1 and 2. It was the case of the defendants 1,2 and 4 that they never offered to sell the suit land, received the sale consideration pursuant thereto from the plaintiff and executed the suit agreement in his favour. However they stated that the first defendant borrowed a sum of Rs.25,000/- from the plaintiff to meet the expenses of his daughter marriage, agreeing to repay the same with interest at 12% per annum, for which, the plaintiff took signatures of defendants 1 to 3 on the blank non-judicial stamp papers. It was their case that the plaintiff created agreement of sale and payment endorsement with the help of those blank papers for wrongful gains. It was stated that after receipt of the legal notice, the defendants 1 to 3 asked two months time to repay the said amount and the plaintiff though agreed for the same before the mediators, filed the present suit only with a view to harass them. Based on the above pleadings, the trial Court famed the following issues for trial: 1. Whether the agreement of sale dated 1.8.1992 is true, valid and binding on the defendants ? 2. Whether endorsement dated 1.9.1992 is true and correct? 3. Whether the plaintiff is ready to perform his part of his contract ? 4. To what relief? To prove the claim, on behalf of the plaintiff, PWs 1 to 3 were examined and Exs. A1 to A9 were marked. DWs. 1 and 2 were examined on behalf of the defendants, but, no documentary evidence was adduced. The trial Court upon consideration of the oral and documentary evidence adduced by either party, decreed the suit. The trial Court recorded a finding that Ex.A.1 agreement of sale and Ex.A.2 payment endorsement containing the signatures of defendants 1 and 2, and thumb impression of third defendant at the place of execution were proved to have been executed by the defendants 1 to 3 in favour of the plaintiff. It was observed that there were material discrepancies in the evidence of D.W.1 and D.W.2 with regard to execution of alleged Exs.A.1 and A2 (agreement of sale and payment endorsement) which sought to set up a false defence. Further, non issuance of reply to the Ex.A.3 legal notice supports the fact that the defendants 1 to 3 promised to sell the suit land to the plaintiff by executing Exs.A.1 and A.2 Aggrieved by the judgment and decree of the trial Court dated 27.07.2005, the defendants 2 and 4 preferred appeal in A.S.No.37 of 2005 on the file of the Senior Civil Judge, Narsapur. The lower appellate Court on re-appreciation of the evidence on record, dismissed the appeal confirming the judgment and decree of the trial Court. Being dissatisfied by the judgments and decrees of the trial Court as well as the lower appellate Court, the present second appeal is preferred. The learned Counsel for the appellants submits that in as much as P.Ws. 2 and 3 are interested witnesses, their evidence ought to have been discarded by the Courts below. He submits that non taking of the steps immediately after full payment of the amount by the plaintiff and the filing of the suit after three years from the date of issuance of Ex.A.3 legal notice would clearly establish that Exs A.1 and A.2 were created by the plaintiff for wrongful gain and as such, they were false and fabricated documents. Per contra, the learned Counsel for the first respondent submitted that the trial Court considering th evidence adduced before it, decreed the suit and the lower appellate Court after due re-appreciation of the evidence on record confirmed the judgment and decree passed by the trial Court. He therefore supported the judgments and decrees of the Courts below and prayed the dismissal of the Second Appeal. Perused the case file scrupulously. Before adverting to the contentions of the learned Counsel on either side, be it noted that the scope of this Court under Sec. 100 C.P.C. is quite narrow. Therefore, within the ambit of the appellate jurisdiction of this court under Sec. 100 CPC, it has to be seen, whether any substantial questions of law raised by the learned Counsel for the appellant in the Memorandum of Grounds need consideration and warrant any interference. Time and again, the Supreme Court held that this Court is entitled to exercise its power under Section 100 CPC only when a substantial question of law arises in a second appeal for adjudication but not otherwise. I n Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 713 the Supreme Court while explaining the scope of Section 100 CPC observed thus: “7. A bare look at Section 100 CPC shows that the jurisdiction of the High Court to entertain a second appeal after the 1976 Amendment is confined only to such appeals as involve a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High Court. Of course, the proviso to the section shows that nothing shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if the court is satisfied that the case involves such a question. The proviso presupposes that the court shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated by it. The existence of a ‘substantial question of law’ is thus the sine qua non for the exercise of the jurisdiction under the amended provisions of Section 100 CPC.” In Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, (2011) 1 SCC 673, it has been held by the Apex Court as under: “ A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.” Keeping in mind the law laid down by the Supreme Court, I shall now proceed to examine the pleadings and evidence adduced by both the parties as well as the Judgments and Decrees of the Courts below so as to see whether the findings recorded by them are justified in law and on fact. As can be seen from the pleadings of the respective parties, it is the case of the plaintiff that he agreed to purchase the suit property for a sum of Rs.32,000/- from the defendants 1 to 3 and the defendants 1 to 3 accordingly executed an unregistered sale deed dated 01.08.1992 in his favour by duly receiving an amount of Rs.25,000/- towards advance of sale consideration. It is his further case that both the parties mutually agreed for payment of the remaining sale consideration of Rs.7,000/- on or before 01.09.1992 and that the said sum of Rs.7,000/- was paid on 01.09.1992. Thereafter, when the plaintiff sought the defendants 1 to 3 to execute the registered sale deed in respect of the suit property, they did not come forward to do so. On the other hand, the averment of the defendants is that they never offered to sell the suit property to the plaintiff and did not receive any sale consideration as alleged. The execution of the suit agreement of sale is also denied. However, it is their case that the first defendant borrowed a sum of Rs.25,000/- from the plaintiff to meet the expenses of his daughter’s marriage by agreeing to repay the said sum with interest at 12% per annum for which, it is alleged, the plaintiff obtained the signatures of the defendants 1 to 3 on the blank non- judicial stamp papers. It is further averred that the plaintiff created the suit agreement of sale and payment of endorsement with the help of those blank papers for wrongful gains. A perusal of the material on record would show that the signatures on Ex.A.1 and A.2 of defendants 1 to 3 which were not disputed by the executants gives enough scope to believe that the defendants have agreed to sell the suit land in favour of the plaintiff. Except stating that they have not offered to sell the suit land, the defendants failed to disprove the execution of Exs.A.1 and A2. Even the material discrepancies in the evidence of DWs. 2 to 4 would show that they set up a false defence to deny the execution of Exs.A.1 and A.2. The same is nothing short of a false defence. Even during the cross-examination of P.Ws. 1 to 3 there is no suggestion put by the defendants to deny the execution of Exs.A.1 and A.2. The learned Counsel for the appellants submits that the ink used by the plaintiff on Exs.A.1 and A2 would show that they have been executed at one and the same time and not as per the dates shown on them. There is only one month gap in between Exs.A.1 and A2. Normally in the villages, it is a common practice that the people like PW.3 would not change their pens frequently in as much as there would not be much writing in their day to day affairs. Even if the defendants disputes the age of ink, nothing prevented them to seek for opinion of an expert. But that was not done so. The trial Court, having carefully analyzed the evidence adduced by both sides before it, both oral and documentary, came to the conclusion that the agreement of sale, Ex.A.1, is a genuine document and the same is binding on the defendants and that Ex.A.2 payment endorsement is also a genuine document. The trial Court further held that the plaintiff is always ready and willing to perform his part of contract whereas the defendants failed to perform their part of contract and hence, the suit is liable to be decreed. The trial Court ultimately decreed the suit with costs directing the defendants to execute a registered sale deed in terms of Ex.A.1 agreement of sale and Ex.A.2 payment endorsement in favour of the plaintiff on or before 29.08.2005 failing which the plaintiff is at liberty to get the same through process of the trial Court. The lower appellate Court on re-appreciation of the evidence on record in detail concurred with the Judgment and decree passed by the trial Court. From the above facts and circumstances of the case, it is clear that the trial Court having considered the pleadings vis-à-vis evidence adduced on record, both oral and documentary, in their right perspective, rightly decreed the suit and the lower appellate on re- appreciation of the evidence placed on record concurred with the Judgment and decree passed by the trial Court. Having examined the matter with the touchstone of the principles laid down by the Supreme Court, the trial Court rightly arrived at the findings based on the evidenced adduced before it. It also considered the relevant admissible evidence but while doing so, it did not take into consideration any inadmissible evidence and did not misread the evidence on record. In the process, the trial Court also scrupulously followed the legal principles in sifting the evidence and considering the same. The lower appellate Court on re-appreciation of the evidence on record rightly concurred with the Judgment and Decree of the trial Court. I therefore do not find any valid ground to interfere with the well reasoned Judgments and Decrees of the Courts below. For the foregoing discussion, there is no question of law, much less a substantial question of law, involved in this second appeal. The second appeal is liable to be dismissed and the same is accordingly dismissed. No order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 15th September, 2011. Msnro