Prem Prakash Gupta vs Indian Cotton Corporation Ltd on 19 July, 2009

Rajasthan High Court – Jodhpur
Prem Prakash Gupta vs Indian Cotton Corporation Ltd on 19 July, 2009
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             IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                                 JODHPUR

                                 :JUDGMENT:

S.B. Civil Second Appeal No.86/1992.

(Smt. Gheeshi Bai & Another Vs. Smt. Mangi Bai & Another)

DATE OF JUDGMENT : July 21, 2009

PRESENT

HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS
______________________________________

Reportable
Mr. Rajat Dave for the appellant.

Mr. Rameshwar Chauhan for the respondent.

In this second appeal filed under Section 100, C.P.C.,

the appellants are challenging the judgment and decree

dated 21.04.1992 passed by the Addl. District Judge No.1,

Udaipur in Civil Appeal No.43/1986, whereby, the learned

appellate Court reversed the judgment and decree dated

31.08.1985 passed by Addl. Civil Judge No.1, Udaipur in

Civil Original Case No.174/1978.

Challenge is made to the adjudication made on the

issue of relief clause because the learned appellate Court

decided issues No.1, 2 and 3 in favour of the plaintiff-

appellant; but, in the relief clause denied the relief of

specific performance of agreement and passed the decree

that the appellant will be entitled to the relief of payment

of Rs.500/- which is part-payment made by the appellant-
2

plaintiff to the defendant when the agreement was

executed along with 9% interest with effect from

22.12.1973.

According to brief facts of the case, appellant-plaintiff

preferred suit against the defendant Mangi Bai and her

father for specific performance of the agreement for sale of

house for consideration of Rs.4,500/-. It is stated in the

plaint that out of Rs.4,500/-, an amount of Rs.500/- was

paid in cash towards advance; but, later on, the house was

not sold to the appellant-plaintiff but sold to Bhanwar Lal

and Bhanwar Lal purchased the property knowing it well

that an agreement was entered into in between defendant-

respondent and plaintiff-appellant.

After notice, written-statement was filed by the

defendant and as a result of adjudication made upon the

issues the trial Court dismissed the suit with cost. The

said judgment and decree was further challenged by the

appellant-plaintiff in the Court of District Judge, Udaipur

who transferred the case to the Addl. District Judge No.1,

Udaipur. Learned Addl. District Judge decided the appeal

vide judgment dated 21.04.1992. Learned appellate

Court allowed the appeal filed by the appellant-plaintiff and

finding upon issues No.1, 2 and 3 arrived at by the trial

Court was reversed and said issues were decided in favour
3

of the appellant-plaintiff while holding that agreement was

arrived at in between the parties. The lower appellate

Court, however, refused to grant relief for specific

performance of the sale of property on the ground that

respondent No.2 purchased the suit property bona fide and

he was not having any knowledge, so also, 19 years have

passed, therefore, instead of granting decree for specific

performance of agreement for sale, the appellate Court

granted relief for returning the amount of Rs.500/- paid in

advance by the appellant-plaintiff to the defendant, along

with 9% interest.

Learned counsel for the appellant vehemently

challenged the finding with regard to the relief clause given

by the appellate Court, whereby, the learned appellate

Court refused to grant decree for specific performance of

sale and granted the other relief. Learned counsel for the

appellant argued that once the appellate Court arrived at

the finding that agreement was validly executed and

defendants were bound by the agreement, then, relief in

toto as prayed for in the suit was to be granted; but, for

unsound and baseless reasons, learned lower appellate

Court has denied relief which is not tenable.

Learned counsel for the appellant invited my

attention towards judgments of the apex Court reported in
4

AIR 1972 SC 1520, Dr. Govind Das & Another Vs. Smt.

Shanti Bai; AIR 2001 SC 1658, R.K. Mohammed Abidullah

Vs. AG Abdul Wahim; and, AIR 2005 SC 1320. While citing

these judgments, it is submitted by learned counsel for the

appellant that the reasons for denial of basic relief is totally

illegal and once it is held that valid agreement is arrived at

in between the parties, then, relief cannot be denied,

therefore, the judgment impugned dated 21.04.1992 to

the extent of denial of the relief of specific performance of

sale of property may be set aside and relief as prayed for

by the appellant-plaintiff in the suit may be granted and

defendants be directed to execute the sale of the property

in question.

On the other hand, Mr. Rameshwar Chauhan, learned

counsel for the respondent argued that finding arrived at

by learned lower appellate Court is perverse and has no

basis to stand before the eye of law. According to him,

the finding arrived at by the trial Court deserves to be

upheld and cross-objection deserves to be accepted.

Therefore, the judgment rendered by the first appellate

Court may be set aside and this second appeal may also be

dismissed.

I have considered the rival submissions, so also,

perused the entire record of the case.

5

In this case, while admitting this second appeal,

following question of law was framed :

“Whether the plaintiff appellants can be non-
suited on the ground that on the date of
judgment 19 years limitation has expired
irrespective of the fact that they have filed
the suit will within the limitation as
contemplated under Indian Limitation Act
with promptitude ?”

For deciding the above issue and cross-objection, it is

worthwhile to consider the important aspect of the matter

that appellant himself has made alternative prayer in the

suit with regard to granting relief to him. Following relief

was prayed for in the suit :

        "क- कक पत व द न द र व द न क        पक म द न क ५-
        ८-७३ ई० क तनषप द   ववकय सवव        (agreement to
        sale) क यथ व ! कक आजत$ व द         न क पक म व
        पत व %गण क ववरद पस रर कर व         ।

        ख- कक पत व द न द र पत व % सखय २ क पक म
        द न क ५-९-७३ क0 तनषप द   ववकय पत व ववव
        गस समपव5 क सव ममतव व सवतव ! सम8न:; समस
        पलख (document) व द न क0 द ल न व आध;पतय
        व द न क0 द ल न क> आज पत व %गण क ववरद
        प न कर व ।

        ग- कक समस व वयय :य य शल
                              A क सदC          पत व %गण
        स व द न क0 द ल व ।

        घ- अ:य परर 0ष (relief) ज0 उधI      C0 पत व %गण स
        व द न क0 द ल व ।

        ड- ववकलप म तनव न CK कक यद द न क ५-८-७३ ई०
        क व द न क पक म तनषप द     ववकय अनA8:; क
         थव तनषप न क> डडक> ककस क रण पस रर नC% क>
        ज सक 0 भ ५ 00) रपय अधगम र श (earnest
                              6

        money) ४,000) रपय पर बय ज व कत पतA P क
        ५ 00) रपय पत व %गण स व द न क0 द ल य ज व ।"

The learned trial Court dismissed the suit after

framing 4 issues including issue whether defendant No.2

Bhanwar Lal s/o Saw Ram purchased the property having

any knowledge or not. The first appellate Court though

deciding issues No.1, 2 and 3 in favour of appellant,

accepted the finding of the trial Court with regard to issue

No.4 and, while doing so, the first appellate Court

observed that in relief clause of appeal, the appellant is

entitled for the alternative prayer made in the suit.

Further, it is observed in the judgment that property in

question was sold to respondent No.2 Bhanwar Lal before

19 years; meaning thereby, learned appellate Court was of

the opinion that respondent No.2 Bhanwar Lal was bona

fide purchaser of the property in question and he was not

having any knowledge with regard to the agreement

arrived at in between the plaintiff and defendant No.1.

It is also obvious from the relief clause made by the

appellant-plaintiff himself that he has made a prayer

before the trial Court that in the event of not granting

relief of execution of the sale-deed, he may be granted

relief for payment of his money. Therefore, apparently

the finding of the learned appellate Court is not perverse
7

and does not require any interference.

For the reasons mentioned above, the question

formulated by this Court while admitting this second

appeal is required to be answered in favour of the

defendant. With regard to the judgments cited by learned

counsel for the appellant, it is worthwhile to observe that

peculiar facts of this case with regard to issue No.4 speak

that upon the facts of this case the judgments cited by

learned counsel for the appellant are not applicable.

In this view of the matter, there is no force in this

appeal, so also, I have considered the cross-objection

raised by respondent-defendant. I do not find any

substance in the cross-objection so as to disturb the

finding of the lower appellate Court, therefore, it is held

that the learned trial Court rightly non-suited the plaintiff-

appellant on the ground that sale was executed in favour

of Bhanwar Lal by defendant No.1 before 19 years and,

now, at this stage, property which is sold to bona fide

purchaser cannot be ordered to be re-sold to the

appellant-plaintiff after 19 years. Therefore, even if suit

was filed within limitation by the appellant, finding of the

learned lower appellate Court with regard to granting relief

to the extent of return of money does not require any

interference because the property in question was
8

purchased by third person 19 years ago. There is thus no

substance in this appeal.

This appeal is accordingly dismissed. Cross-

objection is also rejected.

(Gopal Krishan Vyas) J.

Ojha, a.

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