RANDHIR KAUR  versus PRITHVI PAL SINGH & ORS.
[2019] 9 S.C.R. 776, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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RANDHIR KAUR
v.
PRITHVI PAL SINGH & ORS.
(Civil Appeal No. 5822 of 2019)
JULY 24, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Punjab Courts Act, 1918 – s.41 – Second appeals – Scope of
interference – Appellant-plaintiff sought specific performance of
agreement to sell dtd. Nov. 5, 2004 in respect of land measuring
193 kanals 18 marlas @ Rs.1,27,000/- per acre – Rs.12,50,000/-
and Rs.1,00,000/- was paid to defendant Nos.1 and 2 as earnest
money at the time of execution of agreement to sale – Suit decreed –
Appeal thereagainst – Dismissed – In the second appeal, the decree
for specific performance of the agreement was declined inter alia
holding that ‘DS’, son of the appellant was not the attorney to act
on behalf of the appellant – Held: In second appeal, the scope of
interference within the Punjab and Haryana High Court would be
the same as CPC existed prior to 1976 amendment – Provisions of
s.41 of the 1918 Act and of s.100, CPC are pari materia – Jurisdiction
in second appeal is not to interfere with the findings of fact on the
ground that findings are erroneous, however gross or inexcusable
the error may seem to be – Findings of fact will also include the
findings on the basis of documentary evidence – Jurisdiction to
interfere in the second appeal is only where there is an error in law
or procedure and not merely an error on a question of fact – High
Court could not interfere with the findings of fact recorded
after
appreciation of evidence merely because the High Court thought
that another view would be a better view – Readiness and willingness
to perform contract is a finding of fact on the basis of oral and
documentary evidence led by the parties – First appellate court
returned a finding that the plaintiff was ready and willing to perform
the contract and that the defendants cannot take plea that they
were not aware that ‘DS’ was the power of attorney holder – Findings
recorded by the first appellate court cannot be said to be contrary
to law which may confer jurisdiction on the High Court to interfere
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with the findings of fact recorded by the first appellate court – High
Court was not within its jurisdiction to interfere with the findings of
fact only for the reason that plaintiff failed to prove power of
attorney in favour of ‘DS’ – Judgment of the High Court set aside –
Decree passed by the lower appellate court restored – Code of Civil
Procedure, 1908 – s.100 – Code of Civil Procedure (Amendment)
Act, 1976 – General Clauses Act, 1897 – s.10.
Allowing the appeal, the Court
HELD : 1.1 The jurisdiction of the High Court in second
appeal is circumscribed by the provisions of Section 41 of the
Punjab Courts Act, 1918. Prior to amendment in the Code of
Civil Procedure vide CPC (Amendment) Act, 1976 w.e.f. February
1, 1977, the scope of interference in second appeal under the
Punjab Act as well as under the Code of Civil Procedure
as it existed before the amendment was on similar grounds.
[Para 10] [783-C-D]
1.2 The effect of the Constitution Bench judgment in
Pankajakshi case is that in second appeal, the scope of interference
within the Punjab and Haryana High Court would be the same as
Code of Civil Procedure existed prior to 1976 amendment. The
provisions of Section 41 of the Punjab Act and of unamended
Section 100 of the CPC were pari materia. The jurisdiction in
second appeal is not to interfere with the findings of fact on the
ground that findings are erroneous, however, gross or inexcusable
the error may seem to be. The findings of fact will also
include
the findings on the basis of documentary evidence.  The
jurisdiction to interfere in the second appeal is only where there
is an error in law or procedure and not merely an error on a
question of fact. In view of the above, the High Court could not
interfere with the findings of fact recorded after appreciation of
evidence merely because the High Court thought that another
view would be a better view. A perusal of the findings recorded
show that the first appellate court returned a finding that the
plaintiff was ready and willing to perform the contract and that
the defendants cannot take plea that they were not aware that
‘DS’  was power of attorney holder. Therefore, the findings
recorded by the first appellate court cannot be said to be contrary
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to law which may confer jurisdiction on the High Court to interfere
with the findings of fact recorded by the first appellate court. The
respondents have not raised any argument that the first appellate
court has failed to determine some material issue of law which
may confer jurisdiction on the High Court to interfere with the
findings of fact nor there is any substantial error or defect in the
procedure provided by the Code of Civil Procedure or by any
other law for the time being in force which may possibly have
produced error or defect in the decision on merits. Therefore,
the High Court was not within its jurisdiction to interfere with
the findings of fact only for the reason that plaintiff has failed to
prove power of attorney in favour of ‘DS’. [Paras 11, 16-19]
[783-C-D; 787-G-H; 788-A-E]
1.4  The agreement to purchase the land was entered into
by the plaintiff through her son ‘DS’ when a sum of Rs.13,50,000/
- was paid to the defendants. The defendants could accept a sum
of Rs.13,50,000/- from ‘DS’ but they disputed the authority of
‘DS’ to enter into agreement to purchase on behalf of his mother.
‘DS’ had appeared in the office of the Sub Registrar for execution
of the sale deed on January 31, 2005 with the plea that he has
brought the balance sale consideration but the defendants have
not turned up. In fact, the defendants relied upon their presence
before the Sub Registrar on January 28, 2005 i.e. even
before
January 30, 2005, i.e. the date on which the execution of sale
deed was fixed.  January 30, 2005 was Sunday.  Therefore, in
terms of provisions of Section 10 of the General Clauses Act,
1897, it will be the next working day i.e. January 31, 2005 which
will be deemed to be the date for performance of the agreement
and on the said date, ‘DS’ appeared with balance sale consideration
and marked himself present.  In respect of financial capacity, it
has come on record that the sale deeds (Exh. P-15 and Exh. P-
16) were executed by ‘RK’ prior to January 30, 2005 for making
payment to the defendants to execute the sale deed as per terms
and conditions of the agreement.  Therefore, the High Court was
not within its jurisdiction to interfere in second appeal only for
the reason that on the date of agreement, there was no specific
power of attorney in favour of son of the plaintiff, ‘DS’. In view of
the above, the judgment of the High Court is set aside and the
decree passed by the lower appellate court is restored.  The
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appellant is granted two months’ time to pay balance sale
consideration to defendant Nos. 1 and 2 and upon receiving the
amount, the defendants shall execute the sale deed in favour of
the plaintiff.  If the defendants fail to receive the amount, the
plaintiff will be at liberty to deposit the amount with the executing
court and seek execution of the decree in accordance with law.
[Paras 20-22] [788-F-H; 789-A-D]
Pankajakshi (D) through LRs. & Ors. v. Chandrika &
Ors. (2016) 6 SCC 157 : [2016] 3 SCR 1018 – followed.
Deity Pattabhiramaswamy v. S. Hanymayya & Ors. AIR
1959 SC 57 ; Kshitish Chandra Bose v. Commissioner
of Ranchi (1981) 2 SCC 103 : [1981] 2 SCR 764 ;
Gurdev Kaur & Ors. v. Kaki & Ors. (2007) 1 SCC
546 : [2006] 1 Suppl. SCR 27 – relied on.
Kirodi (since deceased) through his LR v. Ram Parkash
& Ors. 2019 SCC OnLine SC 759 ; Chand Kaur(D)
through LRs. v. Mehar Kaur (D) through LRs 2019 SCC
OnLine SC 426 ; Surat Singh(D) v. Siri Bhagwan &
Ors. (2018) 4 SCC 562 : [2018] 1 SCR 1063 ; Sadhu
v. Mst. Kishni 1980 AIR (Punjab) 85 – referred to.
Case Law Reference
[2016] 3 SCR 1018
followed
Para 4
[2018] 1SCR 1063
referred to
Para 9
AIR 1959 SC 57
relied on
Para 12
[1981] 2 SCR 764
relied on
Para 13
[2006] 1 Suppl. SCR 27
relied on
Para 14
1980 AIR (Punjab) 85
referred to
Para 15
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5822
of 2019.
From the Judgment and Order dated 24.02.2015 of the  High
Court of  Punjab and Haryana at Chandigarh in RSA No.
4928 of 2012
(O&M).
P. S. Patwalia, Sr. Adv., Ms. Natasha Dalmia, Vanshdeep Dalmia,
A. Venayagam Balan,  Advs. for the Appellant.
RANDHIR KAUR v. PRITHVI PAL SINGH & ORS.
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Neeraj Kr. Jain, Anupam Lal Das, Sr. Advs.,  Siddharth Jain, Ugra
Shankar Prasad, H. S. Jalal, Aniket Jain, Raktim Gogoi, Anirudh Singh,
Sarvswa Chhajer, Gautam Talukda, Advs. for the Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J. 1. Leave granted.
2. The appellant is plaintiff who has sought specific performance
of agreement to sell dated November 5, 2004 in respect of land measuring
193 kanals 18 marlas at the rate of Rs.1,27,000/- per acre.  A sum of
Rs.12,50,000/- and Rs.1,00,000/- was paid to defendant Nos. 1 and 2 as
earnest money at the time of execution of agreement to sale.  The date
of registration of sale deed was fixed as January 30, 2005.  The suit for
specific performance was filed on April 3, 2006.
3. The learned trial court vide judgment and decree dated April
13, 2010 decreed the suit.  The appeal against said judgment and decree
remained unsuccessful when such appeal was dismissed on August 11,
2012. However, in the second appeal, the decree for specific performance
of the agreement was declined but instead decree for recovery of
Rs.13,50,000/- paid by the appellant along with interest at the rate of
12% was granted.  The High Court held that plaintiff was ready and
willing to perform the agreement and that Dhanwant Singh was not the
attorney to act on behalf of the appellant.
4. Learned counsel for the appellant-plaintiff argued that in view
of the judgment of this Court in
Pankajakshi (D) through LRs & Ors.
v. Chandrika & Ors.1, substantial question of law may not be required
to be framed but in second appeal, the finding of fact recorded cannot
be interfered with even in terms of Section 41 of the Punjab Courts Act,
19182.
5. It is argued that the High Court has not recorded any finding
which satisfies the tests laid down in Section 41 of the Punjab Act.  It is
further argued that though the first power of attorney dated September
29, 1999 was not in respect of land in question but in the subsequent
power of attorney dated September 14, 2005, the appellant has ratified
all the acts of the Attorney Dhanwant Singh including the purchase of
movable and immovable property anywhere in her name.  It is argued
1 (2016) 6 SCC 157
2 for short, ‘Punjab Act’
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that the agreement dated November 5, 2004 was entered into by the
appellant through her son Dhanwant Singh in whose favour registered
power of attorney was executed on September 14, 2005.  It is the said
Dhanwant Singh who has paid the amount to the defendants.  The plea
of the defendants that Dhanwant Singh was not authorised to act on
behalf of his mother is wholly untenable as the defendants having received
the amount from Dhanwant Singh.  The finding that sum of Rs.13,50,000/
- was paid by the appellant through Dhanwant Singh has been accepted
by the High Court when the Court recorded the following findings:
“17.  Adverting to the facts of the case in hand, agreement of sale
dated November 05, 2004 (Ex.P-1) was executed by appellants/
defendants No. 1 and 2 on their behalf as well as on behalf of
defendants No. 3 and 4, on receipt of a sum of `13.5 lacs as
earnest money. Though, amount of earnest money has been
disputed by learned counsel for appellants-defendants No. 1 and
2 but there is no cogent and convincing evidence in this regard.
So, it cannot be safely concluded that agreement of sale (Ex.P-1)
was executed by defendants No.1 and 2 on receipt of a sum of
Rs.13.5 lacs as an earnest money. Execution of document has
also not been otherwise disputed by appellants-defendants and
respondent-plaintiff. Otherwise also, no amount of oral evidence
can be taken into consideration and pales into insignificance, in
view of a recital contained in document.”
6. In view of the findings recorded, it is argued that the High
Court committed material illegality in declining the relief of specific
performance on the ground that Dhanwant Singh was not authorised to
act on behalf of the appellant and, that the appellant has not appeared as
a witness herself.
7. It is also argued that defendants have not raised any plea in the
written statement that Dhanwant Singh was not the authorised
representative of the plaintiff to enter into agreement on her behalf.
8. On the other hand, Mr. Neeraj Kumar Jain, learned senior
counsel appearing for the defendants, submitted that first power of
attorney dated September 29, 1999 registered on January 18, 2000 does
not relate to land in question nor it empowers Dhanwant Singh to purchase
any other land. The power of attorney executed in favour of Dhanwant
Singh on September 14, 2005 empowering him to purchase movable or
RANDHIR KAUR v. PRITHVI PAL SINGH & ORS.
[HEMANT GUPTA, J.]
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immovable property but such power of attorney relates to purchase in
future and not in respect of the agreement already executed.  It is argued
that plaintiff has never intimated the defendants about Dhanwant Singh,
as being the attorney of the plaintiff.  The High Court was justified in
interfering in the second appeal as the decision of the courts below was
contrary to law as the findings recorded by the trial court and the appellate
court is not based upon facts on record.
9. This Court in Kirodi (since deceased) through his LR v. Ram
Parkash & Ors.3 has held that judgments in Chand Kaur(D) through
LRs. v. Mehar Kaur(D) through LRs4 and Surat Singh(D) v. Siri
Bhagwan & Ors.5, are contrary to the Constitution Bench judgment in
Pankajakshi case, therefore, not correct law. It, thus, transpires that in
terms of the Constitution Bench judgment, substantial questions of law
are not required to be framed in second appeal but, the jurisdiction of the
High Court is not to reverse the finding of facts in terms of Section 41 of
the Punjab Act.  The jurisdiction of the High Court in second appeal is
circumscribed by the provisions of Section 41 of the Punjab Act.  The
first ground is that decision being contrary to law or to some custom or
usage having the force of law.  The argument of Mr. Jain is that decision
of the first appellate court is contrary to law as the plaintiff has failed to
prove readiness and willingness to
perform the agreement.  The readiness
and willingness to perform a contract is a finding of fact on the basis of
oral and documentary evidence led by the parties.  The first appellate
court has recorded the following findings on the question of readiness
and willingness of the plaintiff:
“19.  … Now what is to be seen if both the parties appeared to be
at fault because when the agreement to sell has been provide and
the defendant Nos. 1 and 2 have also shown that they are entering
into an agreement on behalf of defendant Nos. 3 and 4 being their
power of attorney but till date the defendant Nos. 1 and 2 failed to
produce any power of attorney in their favour on behalf of
defendant Nos. 3 and 4 and defendant Nos. 3 and 4 had contested
the bonafide of defendant Nos. 1 and 2 to enter into an agreement
to sell on their behalf when there is no general power of attorney
in favour of defendant Nos. 1 and 2.  It appears that both the
3 2019 SCC OnLine SC 759
4 2019 SCC OnLine SC 426
5 (2018) 4 SCC 562
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parties were playing hide and seek.  Thus, the defendants now
cannot take the plea that they had no knowledge that plaintiff
Randhir Kaur had executed any power of attorney in favour of
Dhanwant Singh. The plaintiff approached the Advocate,
purchased the stamp for filing the suit and filed the suit for specific
performance and there is no counter claim on behalf of the
defendants and the plaintiffs were entitled either to a money decree
or forfeiture of their earnest money as per agreement because
there was no readiness and willingness on the part of the plaintiff.
Therefore, it has to be held that the plaintiff was ready and willing
to perform her part of contract.”
10. The first and the foremost question arises in respect of scope
of interference in second appeal in Punjab and Haryana is governed by
Section 41 of the Punjab Act.  Prior to amendment in the Code of Civil
Procedure vide CPC (Amendment) Act, 1976 w.e.f. February 1, 1977,
the scope of interference in second appeal under the Punjab Act as well
as under the Code of Civil Procedure as it existed before the amendment
was on similar grounds.  Section 41 of the Punjab Act and Section 76 of
CPC as it existed prior to April 1, 1977 reads as under:
Section 41 of Punjab Act 
Section 76 of CPC
Second appeals—(1) An appeal 
shall lie to the High Court from 
every decree passed in appeal by 
any Court subordinate to the 
High 
Court 
on 
any 
of 
the 
following grounds, namely :  
(a) the decision being
contrary to 
law or to some custom or usage 
having the force of law; 
(b) the decision having failed to 
determine some material issue of 
law or custom or usage having 
the force of law; 
(c) a substantial error or defect 
in the procedure provided by the 
Code of Civil Procedure 1908 [V 
of 1908], or by any other law for 
the time being in force which 
may 
possibly 
have 
produced 
error or defect in the decision of 
the case upon the merits;  
(2) An appeal may lie under this 
section from an appellate decree 
passed ex parte.  
100 (1).  Save where otherwise 
expressly provided in the body of 
this Code or by any other law for 
the time being in force, an appeal 
shall lie to the High Court from 
every decree passed in appeal by 
any court subordinate to a High 
Court on any of the 
following 
grounds, namely: 
(a) the decision being contrary to 
law or to some usage having the 
force of law; 
(b) the decision having failed to 
determine some material issue of 
law or usage having the force of 
law; 
(c) a substantial error or defect in 
the procedure provided by this Code 
or by any other law for the time 
being in force, which may possibly 
have produced error or defect in the 
decision of the case upon the 
merits. 
(2) An appeal may lie under this 
Section from an appellate decree 
passed ex parte. 
RANDHIR KAUR v. PRITHVI PAL SINGH & ORS.
[HEMANT GUPTA, J.]
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11. The effect of the Constitution Bench judgment in Pankajakshi
is that in second appeal, the scope of interference within the Punjab and
Haryana High Court would be the same as Code of Civil Procedure
existed prior to 1976 amendment. The provisions of Section 41 of the
Punjab Act and of Section 100 of the CPC are pari materia.
12. Some of the judgments of this Court dealing with the scope of
the old Section 100 are required to be discussed.  In a judgment reported
in Deity Pattabhiramaswamy v. S. Hanymayya & Ors.6 – Three
Judges, while examining the scope of Section 100 of CPC, held as under:
“15.  The finding on the title was arrived at by the learned District
Judge not on the basis of any document of title but on a
consideration of relevant documentary and oral evidence adduced
by the parties. The learned Judge, therefore, in our opinion, clearly
exceeded his jurisdiction in setting aside the said finding. The
provisions of Section 100 are clear and unambiguous. As early as
1891, the Judicial Committee in Durga Chowdhrani v. Jawahir
Singh [17 IA 122] stated thus:
“There is no jurisdiction to entertain a second appeal on the
ground of erroneous finding of fact, however gross the error
may seem to be”. The principle laid down in this decision has
been followed in innumerable cases by the Privy Council as
well as by different High Courts in this country. Again the
Judicial Committee in Midnapur Zamindari Co. v. Uma
Charan [29 CWN 131] further elucidated the principle by
pointing out:
“If the question to be decided is one of fact it does not involve
an Issue of law merely because documents which are not
instruments of title or otherwise the direct foundation of rights
but are merely historical documents, have to be construed.”
16. Nor does the fact that the finding of the first appellate court is
based upon some documentary evidence make it any the less a
finding of fact (See Wali Mohammad v. Mohammad Baksh, 11
Lahore 199). But, notwithstanding such clear and authoritative
pronouncements on the scope of the provisions of Section 100 of
the CPC, some learned Judges of the High Courts are disposing
of second appeals as if they were first appeals. This introduces,
6 AIR 1959 SC 57
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apart from the fact that the High Court assumes and exercises a
jurisdiction which it does not possess, a gambling element in the
litigation and confusion in the mind of the litigant public. This case
affords a typical illustration of such interference by a Judge of the
High Court in excess of his jurisdiction under Section 100 of the
CPC. We have, therefore, no alternative but to set aside the decree
of the High Court on the simple ground that the learned Judge of
the High Court had no jurisdiction to interfere in second appeal
with the findings of fact given by the first appellate Court based
upon an appreciation of the relevant evidence. In the result, the
decree of the High Court is set aside and the appeal is allowed
with costs throughout.”
13. Later, in a judgment, reported in Kshitish Chandra Bose v.
Commissioner of Ranchi7 - three Judges, of this Court held that the
High Court has no jurisdiction to entertain second appeal on findings of
fact even if it was erroneous. The Court held as follows:-
“11.  On a perusal of the first judgment of the High Court we are
satisfied that the High Court clearly exceeded its jurisdiction under
Section 100 in reversing pure concurrent findings of fact given by
the trial court and the then appellate court both on the question of
title and that of adverse possession. In the case of Kharbuja
Kuer v. Jangbahadur Rai [AIR 1963 SC 1203 : (1963) 1 SCR
456] this Court held that the High Court had no jurisdiction to
entertain second appeal on findings of fact even if it was erroneous.
In this connection this Court observed as follows:
“It is settled law that the High Court has no jurisdiction to
entertain a second appeal on the ground of erroneous finding
of fact.
As the two courts approached the evidence from a correct
perspective and gave a concurrent finding of fact, the High
Court had no jurisdiction to interfere with the said finding.”
To the same effect is another decision of this Court in the case
of R. Ramachandran Ayyar v. Ramalingam Chettiar [AIR 1963
SC 302 : (1963) 3 SCR 604] where the Court observed as follows:
7 (1981) 2 SCC 103
RANDHIR KAUR v. PRITHVI PAL SINGH & ORS.
[HEMANT GUPTA, J.]
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“But the High Court cannot interfere with the conclusions of
fact recorded by the lower appellate court, however erroneous
the said conclusions may appear to be to the High Court,
because, as the Privy Council observed, however, gross or
inexcusable the error may seem to be there is no jurisdiction
under Section 100 to correct that error.”
14. In another judgment reported in Gurdev Kaur & Ors. v. Kaki
& Ors.8, the rationale behind permitting second appeal on question of
law after the amendment was considered.  It was held that after the
1976 amendment, the scope of Section 100 has been drastically curtailed
and narrowed down.  The Court held as under:
“71. The fact that, in a series of cases, this Court was compelled
to interfere was because the true legislative intendment and scope
of Section 100 CPC have neither been appreciated nor applied. A
class of judges while administering law honestly believe that, if
they are satisfied that, in any second appeal brought before them
evidence has been grossly misappreciated either by the lower
appellate court or by both the courts below, it is their duty to
interfere, because they seem to feel that a decree following upon
a gross misappreciation of evidence involves injustice and it is the
duty of the High Court to redress such injustice. We would like to
reiterate that the justice has to be administered in accordance
with law.
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73. The Judicial Committee of the Privy
Council as early as in
1890 stated that there is no jurisdiction to entertain a second appeal
on the ground of an erroneous finding of fact, however gross or
inexcusable the error may seem to be, and they added a note of
warning that no court in India has power to add to, or enlarge, the
grounds specified in Section 100.”
15. The Division Bench of Punjab and Haryana High Court in a
judgment reported in Sadhu v. Mst. Kishni9 set aside the judgment of
the learned Single Bench in an intra court appeal in terms of the provisions
of law as it existed prior to 1976, and held as under:
8 (2007) 1 SCC 546
9 1980 AIR (Punjab) 85
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“12. The scope of second appeal as envisaged by section 100 of
the Civil Procedure Code and section 41 of the Punjab Courts
Act has been a matter of judicial scrutiny a number of times by
this court as well as by the final court, that is, the Suprems Court
of India. The learned counsel for the appellant has actually made
a reference in this regard to  Detty Paitabhiramaswami  v.  S.
Hanymayya [AIR 1959 SC 57.], Madamanchi Ramappa
v. Muthaluru Bojjappa  [AIR 1962 SC 1933.], Bithal Dass
Khanna v. Hafiz Abdul Hai [1969 S.C. Notes 481.] and Afsar
Shaikh v. Soleman Bibi [(1976) 2 SCC 142 : AIR 1976 SC 163.]
. These pronouncements; in a nutshell, lay down that there is no
jurisdiction to entertain a second appeal on the ground of a
erroneous finding of fact, however gross or inexecusable the error
may seem to be. Nor does the fact that the finding of the first
appellate Court is upon some documentary evidence make it any
the less a finding of fact. A Judge of the High Court has, therefore,
no jurisdiction to interfere in second appeal with the findings of
fact given by the first appellate court based upon an appreciation
of the relevant evidence. Their Lordships have further observed
that the only ground on which such an appeal can be said to be
competent is where there is an error in law or procedure and not
merely on an error on a question of fact.Top of Form
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14. In view of the above discussion, we are clearly of the view
that the learned Single
Judge exceeded his jurisdiction in setting
aside the findings of the fact on issue No. 2. The provisions of
section 100 being clear and unambiguous, there was no scope for
interference with those findings. We thus allow the appeal and
set aside the judgment of the learned Single Judge and affirm the
judgment and decree passed by the District Judge. The parties
are, however left to bear their own costs.”
16. A perusal of the aforesaid judgments would show that the
jurisdiction in second appeal is not to interfere with the findings of fact
on the ground that findings are erroneous, however, gross or inexcusable
the error may seem to be.  The findings of fact will also include the
findings on the basis of documentary evidence.  The jurisdiction to
interfere in the second appeal is only where there is an error in law or
procedure and not merely an error on a question of fact.
RANDHIR KAUR v. PRITHVI PAL SINGH & ORS.
[HEMANT GUPTA, J.]
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17. In view of the above, we find that the High Court could not
interfere with the findings of fact recorded after appreciation of evidence
merely because the High Court thought that another view would be a
better view. The learned first appellate court has considered the absence
of clause in the first power of attorney to purchase land on behalf of the
Plaintiff; the fact that the plaintiff has not appeared as witness.
18. A perusal of the findings recorded show that the learned first
appellate court has returned a finding that the plaintiff was ready and
willing to perform the contract and that the defendants cannot take plea
that they were not aware that Dhanwant Singh was power of attorney
holder.  Therefore, the findings recorded by the first appellate court
cannot be said to be contrary to law which may confer jurisdiction on
the High Court to interfere with the findings of fact recorded by the first
appellate court.
19. Learned counsel for the respondents have not raised any
argument that the first appellate court has failed to determine some material
issue of law which may confer jurisdiction on the High Court to interfere
with the findings of fact nor there is any substantial error or defect in the
procedure provided by the Code of Civil Procedure or by any other law
for the time being in force which may possibly have produced error or
defect in the decision on merits.  Therefore, the High Court was not
within its jurisdiction to interfere with the findings of fact only for the
reason that plaintiff has failed to prove power of attorney in favour of
Dhanwant Singh.
20. The agreement to purchase the land was entered into by
the plaintiff through her son Dhanwant Singh when a sum of
Rs.13,50,000/- was paid to the defendants.  The defendants could accept
a sum of Rs.13,50,000/- from Dhanwant Singh but they disputed the
authority of Dhanwant Singh to enter into agreement to purchase on
behalf of his mother.  Dhanwant Singh had appeared in the office of the
Sub Registrar for execution of the sale deed on January 31, 2005 with
the plea that he has brought the balance sale consideration but the
defendants have not turned up.  In fact, the defendants relied upon their
presence before the Sub Registrar on January 28, 2005 i.e. even before
January 30, 2005, i.e. the date on which the execution of sale deed was
fixed.  January 30, 2005 was Sunday.  Therefore, in terms of provisions
of Section 10 of the General Clauses Act, 1897, it will be the next working
day i.e. January 31, 2005 which will be deemed to be the date for
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performance of the agreement and on the said date, Dhanwant Singh
appeared with balance sale consideration and marked himself present.
21. In respect of financial capacity, it has come on record that the
sale deeds (Exh. P-15 and Exh. P-16) were executed by Randhir Kaur
prior to January 30, 2005 for making payment to the defendants to execute
the sale deed as per terms and conditions of the agreement.  Therefore,
the High Court was not within its jurisdiction to interfere in second appeal
only for the reason that on the date of agreement, there was no specific
power of attorney in favour of son of the plaintiff, Dhanwant Singh.
22. In view of the above, the judgment of the High Court is set
aside and the decree passed by the lower appellate court is restored.
The appellant is granted two months’ time to pay balance sale consideration
to defendant Nos. 1 and 2 and upon receiving the amount, the defendants
shall execute the sale deed in favour of the plaintiff.  If the defendants
fail to receive the amount, the plaintiff will be at liberty to deposit the
amount with the executing court and seek execution of the decree in
accordance with law.
23. The appeal is allowed. No costs.
Divya Pandey
Appeal allowed.
RANDHIR KAUR v. PRITHVI PAL SINGH & ORS.
[HEMANT GUPTA, J.]