IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10545 OF 2011 (arising out of SLP(C)No.5161 of 2007)

JOGENDRA RAM          … APPELLANT

Versus

PHULLAN MIAN (D) BY LRS. & ORS.        … RESPONDENTS

J U D G M E N T

Delay condoned. Leave granted.

2. The only question for consideration in this appeal is whether the High Court  

should have interfered  into a finding of fact arrived at by the trial court and the  

first appellate court under Section 100 of the Civil Procedure Code.  

3. The suit is preferred by the appellant (plaintiff) for specific performance and  

declaration against respondent No.5 (defendant-first party) and respondent Nos.1  

to 4 (defendants-second party).

4. The case of the plaintiff was that on 20th January, 1982 the defendant-first  

party  sold  1  katha  6  dhurs  of  land  in  Plot  No.29  of  village  Motihari  to  one  

Mahender Ram by registered sale deed. Subsequently, on 28th January, 1984 the  

defendant-first party entered into an agreement (Mahadanama) with the plaintiff  

for sale of rest of the land admeasuring an area of 5 kathas 6 dhurs of Plot No.29 of  

village  Motihari  as  fully  described  in  Schedule  I  of  the  plaint  for  which  total

consideration amount was fixed at Rs.3,000/- and an earnest money of Rs.1,500/-  

was  paid  by  the  plaintiff  to  the  defendant-first  party.  The  defendant-first  party  

agreed to execute the sale deed by 15th March, 1984 after receiving the rest of the  

consideration amount. The plaintiff was put in possession of the suit land.  The  

plaintiff  was  always  requesting  the  defendant-first  party  to  accept  rest  of  the  

consideration money and execute the sale deed but on one pretext or the other she  

avoided execution of the sale deed. A legal notice was issued by the plaintiff on 5th  

March, 1984 to defendant-first party asking her to execute the sale deed. Pursuant  

to  which,  defendant-first  party  by  letter  dated  13th March,  1984 intimated  that  

defendants-second party had forcefully got a sale deed executed in their favour on  

22nd February, 1984.  

5. The  further  case  of  the  plaintiff  was  that  the  sale  deed  executed  by  

defendant-first party in favour of defendants-second party on 22nd February, 1984  

for an area admeasuring 6 kathas 3 dhurs  in plot No.29 was not valid as land to  

that extent was not available with the defendant-first party.  The sale was brought  

in existence without payment of consideration money and the defendants-second  

party  had full  knowledge about  the  earlier  agreement  dated 28th January,  1984  

executed  by  defendant-first  party  in  favour  of  the  plaintiff.  A suit  for  specific  

performance and declaration, being Title Suit No.31 of 1984 was filed.

6. The defendants filed their separate written statement. Defendant-first party  

fully supported the case of the plaintiff and she admitted that she had executed the  

agreement for sale prior to execution of the sale deed in favour of defendants-

second party. The defendants-second party on false pretext had got executed the  

sale deed registered in their favour by putting undue pressure and without payment  

of consideration money. She challenged the maintainability of the suit against the  

defendants-second party on the ground that she never performed her part of the  

agreement and she was ready and willing to execute the sale deed in favour of the  

plaintiff. The defendants-second party, the main contesting party opposed the suit  

on the following grounds:

(i)  The suit was not maintainable as it was filed for declaration and title  

and  recovery  of  possession  under  the  garb  of  the  suit  for  specific  

performance of contract;  

(ii) the said suit cannot proceed without paying proper court-fee;

(iii) the suit was barred under the provisions of the Bihar Consolidation  

of Holdings and Prevention of Fragmentation Act, 1956; and  

(iv) a collusive suit has been brought by the plaintiff in collusion with  

the defendant-first party and antedated the agreement for avoiding  

the execution of sale deed  in favour of defendants-second party.  

The following issues were framed by the trial court:

(i) Is the suit as framed maintainable?

(ii) Has the plaintiff got any cause of action or right to sue?

(iii) Whether  the  Mahada  in  question  is  legal,  valid  and  for  consideration or it is collusive and antedated?

(iv) Whether  defendant  2nd party  had  knowledge  of  Mahada  in  question?

(v) Whether  sale  deeds  alleged  to  have been executed  by  Rita  Devi in favour of defendant 2nd party are fraudulent?

(vi) Is the plaintiff entitled to get the reliefs as prayed for?

(vii) To what other relief or releifs, if any, the plaintiff is entitled?

7. After recording the oral and documentary evidence supplied by the parties,  

the  learned  trial  court  came to  the  conclusion  that  the  agreement  between  the  

plaintiff and the defendant-first party is genuine, legal, valid and for consideration.  

The  defendants-second  party  failed  to  prove  that  the  agreement  between  the  

defendant-first party and the plaintiff was antedated. The defendant-second party  

had prior knowledge of the agreement dated 28th January, 1984 and plaintiff was in  

possession of the suit premises.  The plaintiff could not prove that the sale deed  

executed by the defendant-first  party  in favour of  defendants-second party  was  

obtained  fraudulently  but  the  trial  court  held  that  the  sale  deed  was  executed  

without  paying  any  consideration  amount.  The  trial  court  decreed  the  suit  for  

specific  performance  ex  parte  against  the  defendant-first  party  and  on  contest  

against the defendants-second party.

8. Title Appeal No.22 of 1985 was preferred by defendants-second party. The  

first appellate court on re-appreciation of evidence held that the plaintiff had been  

able to prove the validity and genuineness of the agreement for sale entitling him to  

a decree for specific performance of contract.  The defendants-second party had  

full knowledge of the earlier agreement but even thereafter they got the sale deed  

executed without payment of consideration amount.  The appeal was dismissed on  

contest with cost in favour of the plaintiff and against the defendants-second party.

9. In the second appeal preferred by the defendants-second party, the learned  

Single Judge of the High Court framed the following two substantial questions of  

law at the time of the admission:

“(i) Whether the courts below were right in decreeing the suit for  specific performance of the contract without holding that the plaintiff was  able to prove that he was prepared to perform his part of contract;  that  necessary evidence in this regard was led, and the courts below accepted  this contention of the counsel of the plaintiffs and gave a finding to that  effect?

(ii) Whether the findings of the learned trial  court that the sale  deeds  (Ext.  A  series)  were  valid  and  genuine  can  be  reversed  by  the  learned lower appellate court without filing the cross-appeal?”

At the time of the hearing of the second appeal, the following additional  

substantial questions of law were framed by the High Court:

“(i) When the defendant No.1 did not deny to enforce the  alleged  agreement  to  sale,   the  courts  below erred  in  law in  not  holding that the plaintiff has got no cause of action ?

(ii) Whether the findings of the courts below are perverse  due  to  collusive  nature  of  the  alleged  agreement  for  sale  and  collusive nature of the suit?

10. By the impugned judgment, the High Court held that the plaintiff has failed  

to prove the readiness and willingness on his part and he did not get the sale deed  

executed despite the offer made by the defendant-first party. No cause of action  

arose for filing the suit in favour of the plaintiff, as defendant-first party always  

agreed to execute the sale deed. The suit was collusive in nature and agreement for  

sale dated 28th January, 1984 was doubtful.

11. Learned senior counsel appearing on behalf of the appellant submits that the  

High Court was not justified in upsetting a concurrent finding of fact on the issue  

of readiness and willingness of the appellant as the same not being a question of  

law which could be upset in second appeal.  Whether a suit is collusive in nature or  

not is  essentially a question of fact and no finding can be returned in the second  

appeal on this issue unless and until an issue has been framed before the trial court  

and evidence are led on that count.  No new issue can be framed at the time of  

hearing  of  the  case  and  entire  material  and  evidence  on  record  cannot  be  re-

appreciated by the second appellate court in exercise of jurisdiction under Section  

100 C.P.C.  

12. Per contra, according to the contesting respondents/defendants-second party,  

the plaintiff had failed to prove readiness and willingness on his part to get the sale  

deed executed made by defendant-first party. Further, according to them the suit  

was not maintainable in absence of any cause of action and was collusive in nature  

and the agreement for sale is also doubtful.  

13. We have heard Mr. Amarendra Sharan, learned senior counsel appearing for  

the appellant-plaintiff and Mr. Arindam Mukherjee, learned counsel appearing for  

the respondents- defendants-second party.  Having given our anxious attention to  

the rival contentions, we find ourselves unable to sustain the decision rendered by  

the learned Single Judge of the High Court for the reason as follows:

(a) In a second appeal, the Court can exercise jurisdiction only  on the basis  

of substantial question of law framed at the time of admission as held by this

Court in  Dnyanoba Bhaurao Shemade vs. Maroti Bhaurao Marnor reported  

in  (1999) 2 SCC 471.  But in the present case, the High Court framed more  

issues at the time of hearing without giving any opportunity to the parties to  

lead their respective evidence.

(b) The question whether the plaintiffs were always ready to perform  

their part of the contract and entitled for a decree for specific performance does  

not raise any question of law, (Refer: Harjeet Singh vs. Amrik Singh reported  

in  (2005)12 SCC 270),  but such questions have been framed and concurrent  

finding of  trial  court  and the  first  appellate  court  has  been reversed  by  the  

impugned judgment.  

(c) The  question  whether  a  proceeding  was  collusive  or  not  is  

essentially a question of fact, and it cannot be considered in a second appeal, as  

held  by  this  Court  in  Nagubai  Ammal  and others  vs.  B.  Shama Rao and  

others  reported in  AIR 1956 SC 593, but by the impugned judgment learned  

Single Judge decided such questions though there was no such issue framed.  

(d) In a second appeal the re-appreciation of evidence and interference  

with the finding of fact ignoring the question of law is not permissible but such  

interference has been made by the impugned judgment.

14. In  the  result,  the  appeal  is  allowed.  The  impugned  judgment  dated  8th  

August, 2006 passed by the High Court is set aside. The judgment of the trial court

as approved by the first appellate court is restored.  The suit is decreed accordingly.  

But in the facts and circumstances, there shall be no order as to costs.

.........……………………………………………….J.                ( G.S. SINGHVI )     

..........……………………………………………….J.          ( SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI, DECEMBER 01, 2011.