RSA/103/2016 on 9 October 2026

1. Whether deceased Telu Ram executed an agreement dated 30.4.1986 in favour of plaintiff qua the suit land for a consideration of Rs.14,000/-? OPP

2. If issue No.1 is proved, Whether the plaintiff was ever ready and willing to perform his part of agreement and still ready and willing to perform his part? OPP

3. Whether the suit is within time? OPP

4. Whether the suit is not maintainable? OPD

5. Whether the plaintiff has no cause of action? OPD

6. Relief.

The learned trial court directed the parties to adduce evidence in support of their contentions to corroborate their respective case. The learned trial court vide its judgment and decree dated 04.06.2015 dismissed the suit of the plaintiff.

Feeling aggrieved by the judgment and decree, dated 04.06.2015, the plaintiff/appellant preferred an appeal before the learned first appellate Court which too came to be dismissed vide judgment and decree dated 15.01.2016.

Still feeling dissatisfied by the aforesaid judgments and decrees, plaintiff/appellant has preferred the present regular second appeal under Section 100 of the CPC, which came to be admitted on 28.06.2016 by this Court on the following substantial question of law:- “Whether on account of mis-appreciation of the pleadings and law and also misreading of the oral as well as documentary evidence available on record, the findings recorded by Courts below are erroneous and, as such, the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable?”

It is contended by Mr. N. K. Thakur, learned Senior Advocate, assisted by Mr. Divya Raj Singh, Advocate, appearing for the plaintiff/appellant, that the impugned judgments and decrees, as passed by the learned courts below, are erroneous and thus, liable to be quashed and set aside. He has submitted that the learned Courts below have not appreciated the real point of controversy and have mis- interpreted and mis-construed the oral as well as documentary evidence, as a result of which, great prejudice has been caused to the appellant. He has further submitted that after accepting the instant appeal, the suit, as filed by the plaintiff, deserves to be decreed.

On the other hand, Ms. Poonam Gehlot, learned counsel for the defendants/respondents, has defended the impugned judgments and decrees as passed by the learned courts below. She has submitted that the learned Courts below, after taking into consideration the entire material placed on record, have righty dismissed the suit of the plaintiff/appellant. She has further submitted that this Court while invoking provisions of Section 100 of CPC will not interfere with the concurrent findings of fact, as rendered by the learned Courts below and, thus, prayed for dismissal of the instant appeal.

I have heard the learned counsel for the parties and have also gone through the material available on record.

The plaintiff had approached the learned trial court for the grant of decree of specific performance of agreement dated 30.04.1986, which was alleged to have been executed by predecessor-in-interest of the defendants, namely, Telu Ram, in favour of the plaintiff for a total sale consideration amount of Rs.14,000/- and out of the said amount, a sum of Rs.13,000/- was paid to Telu Ram at the time of the execution of the agreement. It is the case of the plaintiff that in pursuance to the agreement, he is in possession of the suit land, and after the death of Telu Ram, the defendants, who have succeeded to the suit land, are bound to execute and register the sale deed in favour of the plaintiff. Though the defendants were requested time and again to perform their part of the agreement, but they failed to do so, therefore, the plaintiff sought a decree of specific performance against the defendants.

The defence, as set up by the defendants, is of total denial. It has been contended in the written statement that in case any agreement is found to have been signed by Telu Ram, the same is the result of fraud and misrepresentation having been prepared with the active connivance of the Scribe and the marginal witnesses.

In order to substantiate his case, the plaintiff examined himself as PW1 and tendered in evidence his affidavit, Ext. PW1/A, wherein he has reiterated the averments as made in the plaint. He stated that the predecessor-in-interest of the defendants, late Telu Ram had executed an agreement on 30.04.1986 in favour of the plaintiff for a total sale consideration amount of Rs.14,000/- and out of the same, Rs. 13,000/- was paid to Telu Ram. He further stated that the possession of the suit land was delivered to the plaintiff and thereafter he had installed two tube wells over the suit land. Though the defendants were requested to perform their part of the agreement, but they failed to do so, therefore, he sought a decree of specific performance from the learned trial court.

In his cross-examination, PW1 stated that the consolidation proceedings were started in the year 1982 and the same were completed in the year 1989. Self stated that the same were started again. In his further cross- examination, he admitted that settlement operation was completed in the year 1995-96 and after the settlement, the authorities had handed over the possession to the respective owners. He admitted that since 1998 to 2003, he did not take any steps, including the issuance of the notice to the

defendants for the execution of the sale deed in his favour. He admitted that he did not get registered the agreement before the Tehsildar. He admitted that he did not hire any registered Petition Writer for the preparation of the agreement. He stated that he does not know Urdu. He admitted that the agreement in question has been written in Urdu. He admitted that the witness, namely Kalyan Singh, also does not know Urdu and he is related to him.

PW2, Jaswinder Singh, also tendered in evidence his affidavit, Ext. PW2/A, wherein he stated that he is a retired Patwari and after his retirement, he was working with the PWD Haroli Division in the year 1986. He stated that Ram Singh was his father and he had seen him writing the agreement dated 30.04.1986 and the same has been written by his father. He stated he had signed in English and he is matriculate since 1999.

In his cross examination, he stated that his father had not obtained any license of Deed Writer or Petition Writer. His father used to sign the papers in English. He again stated that his father used to append his signatures in Urdu. PW2 stated that he does not possess any other document, which may demonstrate that his father used to append his signatures in Urdu. He feigned ignorance as to whether his father had appended signature over agreement Ext. PW1/A. He denied that his father had not appended his signatures over agreement, Ext. PW1/A. He stated that he does not know what has been written in agreement Ext. PW1/A as he does not know English.

PW3, Kalyan Singh, also filed his affidavit, Ext. PW3/A, wherein he stated that Telu Ram, son of Ram Rakha, had executed an agreement on 30.04.1986 in favour of plaintiff, Joginder Singh to sell the suit land measuring 14 kanals for Rs. 14,000/-. He stated that the consolidation proceedings are still going on and the agreement was written by Ram Singh, son of Bharat Singh. He stated that Telu Ram had signed in Hindi and he knew Telu Ram personally, as he was his maternal brother.

In his cross examination, he stated that he is Middle pass and on the affidavit, he had appended his signatures in Punjabi. He stated that he could not read what has been written in his affidavit which has been filed in the court. As per him, he appended his signatures on the affidavit on the asking of the counsel. He admitted that he does not know Urdu language. He further stated that he cannot write and read Urdu. The agreement Ext. PW1/A was prepared by his brother-in-law, namely Ram Swaroop and the same was written in the field. He stated that he does not know when the settlement operation qua the suit land took place.

In order to rebut the case of the plaintiff, defendants examined Vipin Kumar, as DW1, who stated that he had brought the requisitioned record and Ext. DW1/A is correct as per the record.

DW2, Yashpal Singh, Registration Clerk, Tehsil Office, Haroli, District Una, deposed that he brought the requisitioned record and Ext. DW1/A has been entered in the register, which is correct as per the record.

DW3 Sarwan Singh (defendant No.1), filed his affidavit, wherein he stated that Telu Ram did not execute any agreement in favour of the plaintiff nor he received any amount from the plaintiff. He further stated that since 1986 as to why plaintiff kept quiet and the suit came to be filed after lapse of more than 15 years, that is in the year 2005. In his cross examination, the plaintiff could not extract anything favorable from this witness in his favour.

The copy of the agreement has been placed on record as Ext. PW1/A, which is dated 30.04.1986. The perusal of the same reveals that the said document has been written in Urdu, and both the courts have discarded the said document on the ground that the same has not been pleaded and the execution of the same has not been proved by the plaintiff in accordance with law.

It has come on record that the translation of the said document has been placed on record, however, in order to prove the veracity and the authenticity of the said document, the Translator of the said document has not been examined, as a result of which, adverse inference is required to be drawn against the plaintiff. Even otherwise, the execution of the said agreement has not been fully established by the plaintiff, as the testimonies of PW2 and PW3 demolish the case of the plaintiff in its entirety. PW2 and PW3 have categorically stated that they do not know English, whereas the affidavits which have been placed on record are both in English. Both of them have admitted that they did not know Urdu language. Neither they can write in Urdu nor they can read Urdu. Therefore, the learned courts below were right in holding that neither the witnesses of the agreement have been able to prove the same nor authenticity of the document has been proved in absence of non examination of the Translator of agreement, Ext. PW1/A.

The courts below have concurrently come to the conclusion that the plaintiff has failed to prove and establish the due execution of the agreement, therefore, no relief can be granted to the plaintiff in the attending facts and circumstances of the case. More so, in the present case it has come on record that as per the terms and condition of the agreement, the sale deed was to be executed after the completion of the consolidation proceedings. There is an admission on the part of the plaintiff that the consolidation proceedings were completed in the year 1995-96. Earlier he said that the consolidation proceedings were completed in the year 1989, thereafter he stated that the same were concluded in the year 1995-1996. The perusal of the plaint shows that the suit came to be filed by the plaintiff on 26.12.2005 i.e. after the lapse of more than 10 years.

As has rightly been held by the learned courts below, the suit is barred by limitation, as the same has not been filed within the prescribed period of 3 years. The appellant could not demonstrate from the record, which may force this court to interfere in the concurrent findings of the courts below.

The Hon’ble Supreme Court in catena of judgments has held that the first appellate court is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 of CPC can interfere with the findings of fact on limited grounds such as - (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of the relevant admissible evidence; (c) where it is based on misreading of evidence; (d) where it is perverse, but that is not case in hand.

The Hon’ble Supreme Court while dealing with scope of interference under Section 100 of CPC in Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545 has held as under: “18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This

Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that : "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.

19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

20. to 22 xx xx xx xx

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding

precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”

The Hon’ble Supreme Court in Annamalai vs. Vasanthi, 2025 INSC 1267, has held as follows:- “16. Whether D-1 and D-2 were able to discharge the aforesaid burden is a question of fact which had to be determined by a court of fact after appreciating the evidence available on record. Under CPC, a first appellate court is the final court of fact. No doubt, a second appellate court exercising power(s) under Section 100 CPC can interfere with a finding of fact on limited grounds, such as, (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of relevant admissible evidence; (c) where it is based on misreading of evidence; and (d) where it is perverse. But that is not the case here.

17. In the case on hand, the first appellate court, in paragraph 29 of its judgment, accepted the endorsement (Exb. A-2) made on the back of a registered document (Exb. A-1) after considering the oral evidence led by the plaintiff-appellant and the circumstance that signature(s)/thumbmark of D-1 and D-2 were not disputed, though claimed as one obtained on a blank paper. The reasoning of the first appellate court in paragraph 29 of its judgment was not addressed by the High Court. In fact, the High Court, in one line, on a flimsy defense of use of a signed blank paper, observed that genuineness of Exb. A-2 is not proved. In our view, the High Court fell in error here. While exercising powers under Section 100 CPC, it ought not to have interfered with the finding of fact returned by the first appellate court on this aspect; more so, when the first appellate court had drawn its conclusion after appreciating the evidence available on record as also the circumstance that signature(s)/thumbmark(s) appearing on the document (Exb.A-

2) were not disputed. Otherwise also, while disturbing the finding of the first appellate court, the High Court did not hold that the finding returned by the first appellate court is based on a misreading of evidence, or is in ignorance of relevant evidence, or is perverse. Thus, there existed no occasion for the High Court, exercising power under Section 100 CPC, to interfere with the finding of the first appellate court regarding payment of additional Rs. 1,95,000 to D-1 and D-2 over and above the sale consideration fixed for the transaction.

18. Once the finding regarding payment of additional sum of Rs.1,95,000 to D-1 and D-2 recorded by the first appellate court is sustained, there appears no logical reason to hold that the plaintiff (Annamalai) was not ready and willing to perform its part under the contract particularly when Rs. 4,70,000, out of total consideration of Rs. 4,80,000, was already paid and, over and above that, additional sum of Rs.1,95,000 was paid in lieu of demand made by D-1 & D-2. This we say so, because an opinion regarding plaintiff’s readiness and willingness to perform its part under the contract is to be formed on the entirety of proven facts and circumstances of a case including conduct of the parties. The test is that the person claiming performance must satisfy conscience of the court that he has treated the contract subsisting with preparedness to fulfil his obligation and accept performance when the time for performance arrives.”

This Court is of the considered opinion that the learned Courts below have rightly appreciated the point in controversy after considering the oral as well as documentary evidence placed on record. Thus, there is no illegality or perversity in the impugned judgments and decrees, as concurrently passed by the learned Courts below, and the same are upheld. The substantial question of law is answered accordingly.

No other point was urged by the learned counsel for the parties.

In view of above, the present appeal being devoid of any merit deserves to be dismissed. Ordered accordingly. Pending application(s), if any, also stands disposed of.

09th October, 2026

(Romesh Verma) (pankaj)

Judge