1. This second appeal is focussed by the Defendants 1 to 5, animadverting upon the judgment and decree dated 11.4.2002 passed by the Additional District Judge, Fast Track Court No. IV, Bhavani, in A.S. No. 15 of 2002, confirming the judgment and decree dated 2.3.2001 passed by the Second Additional District Munsif, Bhavani in O.S. No. 85 of 1998, which was filed for specific performance of an agreement to sell.
2. Despite notice having been served on the Respondents and their names also printed in the cause list, they have not chosen to appear either in person or through counsel.
3. For the sake of convenience, the parties are referred to here under according to their litigative status and ranking before the trial Court.
4. A summation and summation of the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:
(a) The Plaintiff filed the suit O.S. No. 85 of 1998 for specific performance of an agreement to sell. The Defendant No. 6/R2 herein remained ex-parte. Defendants 1 to 5/the Appellants herein filed the written statement and resisted the suit.
(b) Whereupon issues were framed. The Plaintiff on his side examined himself as Ex.P.W.1 along with Ex.P.W.2 and Exs.A1 to A9 were marked. The Defendants 1 to 5 on their side examined the first Defendant as D.W.1 along with D.W.2 and Exs.B1 to B3 were marked.
(c) Ultimately, the trial Court decreed the suit.
(d) Being aggrieved by and dissatisfied with the same, the Defendants 1 to 5 preferred the appeal for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court.
5. Challenging and impugning the judgment and decree of the appellate Court, Defendants 1 to 5 have filed this second appeal on the following grounds, inter alia thus:
(i) The Courts below failed to apply the principle of ''burden of proof'' correctly in the facts and circumstances of this case. Assuming wrongly that the burden of proof was on the Defendants, the lis was decided by the Courts below.
(ii) Ex.A1-the alleged agreement to sell was disputed by Defendants 1 to 5. Whereupon the Plaintiff ought to have taken steps to prove it in the way known to law. But the Plaintiff failed to do so. Even then, the Courts below held as though the Defendants 1 to 5 should have proved that Ex.A1 was a false document.
(iii) Over and above that, by way of adding fuel to the fire, the Courts below commented upon the non-examination of D6/R2 herein and drew virtually adverse inference as against the Defendants 1 to 5/the Appellants herein. D6 is none but the mother of the Plaintiff.
Accordingly, the Defendants 1 to 5 pray for setting aside the judgments of both the Courts below and for dismissal of the suit.
6. While admitting the second appeal my learned predecessor framed the following substantial questions of law:
(i) Have not the Courts below committed an error of law in not holding that burden of proof lies on the Plaintiff to prove the execution of Exhibit A1 and not on the Defendants.
(ii) Have not the lower appellate Court committed an error of law in holding that the Appellants have not proved that the value of the suit property is more in view of the admission made by the Plaintiff being the best form of evidence.
(iii) Have not both the Courts below committed an error of law in not giving the finding that the Respondents were always ready and willing to require u/s 16(e) of the Specific Relief Act?
(iv) The lower Court committed an error of law in considering the issues framed by the trial Court while confirming the order of the trial Court.
7. However, the aforesaid substantial questions of law are reframed as under:
(i) Whether the Courts blow were justified in proceeding on the footing as though the burden of proof is on Defendants 1 to 5 to prove the falsity of Ex.A1-the Agreement to Sell?
(ii) Despite the scribe having not signed in the agreement to sell-Ex.A1, whether the Courts below were justified in not adverting to the said fact while discussing the facts involved in this case and in upholding the validity of Ex.A1?
(iii) Whether the Courts below were justified in giving weightage to the non-examination of D6/R2 herein-the mother of the Plaintiff as a fact against the genuineness of the case of the Defendants 1 to 5?
(iv) Whether the judgments of the Courts below are fraught with perversity?
8. All the substantial questions of law are taken together for discussion, as they are interlinked and interwoven, interconnected and entwined with one another.
9. The learned Counsel for the Defendants 1 to 5 would put forth and set forth his arguements, which could tersely and briefly be set out thus:
(a) The alleged agreement to sell-Ex.A1 would contemplate as though Ramasamy Grounder had hereditary right over the suit property, whereas D6-the mother of the Plaintiff had directly acquired right over the suit property, without specifying as to the respective extents to which they were entitled to.
(b) During trial also, no evidence has been adduced to highlight as to how D6-the mother of the Plaintiff acquired any right over the suit property.
(c) The lower Court in the judgment did not refer to the factum of the Defendants 1 to 5 having taken steps to get the assistance of the expert, to verify the genuineness of the purported left thumb impression of Ramasamy Gounder even though D.W.1/D1 stated that through Court the impugned document was sent to the expert, but it was returned back on the ground that for want of better particulars it could not be verified.
(d) The appellate Court without framing proper points for consideration, simply confirmed the judgment of the trial Court, which was fraught with perversity and incoherence.
Accordingly, he prays for setting aside the judgment of both the Courts below and for dismissal of the suit.
10. The learned Counsel would place reliance on the Division Bench judgment of the Karnataka High Court reported in AIR 2009 (NOC) 264(KAR) - Handrashekar G Sullad and Ors. v. Tuheed CO-operative housing society and another, an excerpt from it would run thus:
(B) Specific Relief Act (47 of 1963), Section 20 - Specific performance of agreement to sell - Description of subject property insufficient and very identity of property is disputable - No relief can be granted.
11. There is no quarrel over such a proposition, as now it has become a trite proposition.
12. I would like to refer to Ex.A1, which is found typed in one stamp paper, coupled with two green sheets. The said document is purported to contain allegedly the left thumb impressions of the deceased Ramasamy Gounder and D6/R2 herein along with the signature of the Plaintiff-Mariappan. In the third sheet of Ex.A1 even though it is found typed as though one Arumugham typed it, the signature of the said Arumugham is not found on that.
13. I hark back to the following maxims:
(i) Affirmatis est probare - He who affirms must prove.
(ii) Affirmanti, non neganti incumbit probatio - The burden of proof lies upon him who affirms, not upon one who denies.
14. The cumulative effect of those two maxims are to the effect that the person who affirms should prove it. Here the Plaintiff approached the Court seeking specific performance of an agreement to sell, whereas the Defendants 1 to 5 denied it. In such a case, the burden was on the Plaintiff to prove that the purported thumb impressions of Ramasamy Gounder were that of the said person, by clinching evidence.
15. No doubt, on the side of the Plaintiff, apart from the Plaintiff, P.W.2-Jeyachandran one of the attesting witnesses was examined, but the said witness happened to be the relative of Mariappan-the Plaintiff and his evidence is not free from doubt for the reason that he went to the extent of narrating that the scribe signed Ex.A1, when in fact, as observed by me supra, the scribe did not sign it. P.W.1 would plead ignorance about the name of the scribe, however, he would hasten to add wrongly and quite antithetical to the factual reality as though he saw the scribe signing Ex.A1.
16. The Courts below miserably failed to notice the glaring false/wrong statement as found in the depositions of P.W.1 and P.W.2. P.W.1 also in his deposition stated as though there was a well in the suit property, but Ex.A1 does not refer to any well, wherefore the Courts below should have held that the description of property in Ex.A1 was inadequate and misleading cutting at the root of the Plaintiff''s right to seek for specific performance of the agreement to sell. This is also another glaring defect, which the Courts below ought to have taken note of. According to P.W.1, in Ex.A1, Ramasamy was entitled to four cents of land, whereas his mother D6 was entitled to another four cents. There is nothing to indicate how his mother acquired ownership over the said four cents of land and he has also not chosen to examine his mother D6.
17. Over and above that there is no evidence on record to demonstrate and expatiate, convey and portray that while sending notice to D1 to D5, any such pre litigation notice was sent to D6 calling upon her to execute the sale deed along with D1 to D5. D.W.1 in his deposition candidly and categorically, pellucidly and palpably stated that at the instance of D1 to D5, the impugned document was sent to expert, but it was returned with the observation that the thumb impression was not clear. Thereupon the trial Court should have adverted to that portion of the deposition of D.W.1 and given its finding thereon. However, the trial Court would point out that Defendants 1 to 5 filed an application for sending the documents to the expert, thereafter, they did not press for it. Even though the ''burden of proof'' is not on the Defendants 1 to 5, nevertheless they, by their conduct exemplified and made known that they boldly came forward to get the impugned thumb impressions of their father, verified by an hand writing expert. In such an event, the Plaintiff as well as the Court should have taken a cue from the conduct of D1 to D5 and made further arrangements for verifying the purported thumb impression of Ramasamy Gounder in the alleged agreement to sell-Ex.A1. Whereas, the trial Court misapplying the principle of ''burden of proof'' found fault with the Defendants as though they did not prove the falsity of Ex.A1. Non-examination of D6 on the side of D1 to D5 was commented upon by both the Courts below unjustifiably without understanding the trite proposition of law that the ''burden of proof'' is only on the Plaintiff.
18. This is a singularly singular case, in which the mother of the Plaintiff along with one other person, namely, Ramasamy Gounder, allegedly entered into an agreement to sell with the Plaintiff and in such a case, I am at a loss to understand as to how the Plaintiff himself did not choose to examine at least D6 as a Court witness to prove that D6 along with Ramasamy Gounder had put the thumb impressions on Ex.A1. These are all glaring defects in the judgments of the Courts below and the judgments are fraught with perversity and the learned Judges of the Courts below misdirected themselves instead of appreciating the proper facts available before the Court and also applying the correct propositions of law.
19. At this juncture, I would like to recall and recollect the following decisions of the Honourable Apex Court:
(i)
17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. .. .
18...... Ithastobekeptinmindthatthe 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. . . . . .
21. . . . . However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by sufficing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta the phrase "substantial question of law'' as it was employed in the last clause of the then existing Section 100 Code of CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju(Sir Chunilal case, SCR p.557) "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law." This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:(Sir Chunilal case, SCR pp.557-58) "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 call 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.
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 his 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.(See Santosh Hazari v. Purushottam Tiwari).
24.. ..
(iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
(ii)
(iii) 2009 1 L.W.1 - State Bank of india and Ors. v. S.N.GOYA:
A plain reading of those precedents would reveal and demonstrate that u/s 100 of the Code of Civil Procedure, Second Appeal cannot be entertained, unless there is substantial question of law involved.
20. Adhering to the aforesaid judgments and in view of my discussion supra, it is clear that interference of this Court is warranted, as the judgments of the Courts below are fraught with perversity. Accordingly, the substantial questions of law are decided as under:
Substantial question of law (i) is decided tot he effect that the Courts below misunderstood the concept ''burden of proof'' and misapplied it as though the burden of proof was on the Defendants.
Substantial question of law (ii) is decided to the effect that despite the scribe having not signed in the agreement to sell, the Courts below were not justified in not adverting to the said fact while discussing the facts involved in this case and in upholding the validity of Ex.A1.
Substantial Question of law (iii) is decided to the effect that non-examination of D6 on Defendants'' side was commented upon by both the Courts below unjustifiably without understanding the trite proposition of law that the ''burden of proof'' is only on the Plaintiff.
Substantial Question of law (iv) is decided to the effect that the Judgments of the Courts below are fraught with falsity and they have not even taken note of the wrong and inadequate description of the suit property.
21. In view of the ratiocination adhered to in deciding the above substantial questions of law in favour of the second Appellants and as against the Respondents, the second appeal is allowed and the judgments and decrees of the Courts below are set aside and as a sequela the original suit filed by the Plaintiff stands dismissed.
22. In the result, the second appeal is allowed. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.
