- (1.) This is a regular second appeal filed by Kaur Sain defendant against the judgment and decree dated October 26, 1972 of the II Additional District Judge, Ludhiana dismissing his appeal against the decree of Sub-Judge 1st Class, Jagraon, whereby he passed decree for specific performance of the contract of sale of house in favour of the plaintiff against him.
(2.) The facts of the case are that on December 7, 1968, Kaur Sain defendant executed an agreement to sell his house situated in Jagraon town for Rs. 4,000/- to Karam Chand, who is his real nephew and received from him Rs. 2,000/- as earnest money. The balance sale price was to be paid to him before the Sub-Registrar and the registered deed was to be executed within four months from the date of the agreement. The defendant refused to sell this house to the plaintiff and wanted to sell it to some other person and so the plaintiff filed a suit for permanent injunction restraining him from selling it to some other person and in that suit the counsel for the defendant made a statement that he would not sell the house to any body till April 10, 1969. The plaintiff served notice on the defendant to appear in the office of the Sub-Registrar on April 7, 1969 for getting the sale deed registered, but he did not attend the same. The plaintiff, therefore, filed this suit for specific performance of the agreement to sell. It was alleged that he was ready and willing to perform his part of the contract and that the defendant refused to execute the sale deed and hence the suit. In the alternative, it was prayed that he may be granted decree for Rs. 2,250/- consisting of Rs. 2,000/- as the earnest money paid by him and Rs. 250/- as damages. The defendant in his written statement denied the execution of the agreement and the receipt of Rs. 2,000/- by him. He denied all the allegations made in the plaint. It was averred that the father of the plaintiff, who was his real brother, had obtained his signatures on some blank papers in connection with their litigation with the Municipal Committee, in the year 1942 and after his death those papers fell into the hands of his son Rattan Pal, who is a petition-writer and the plaintiff in collusion with Rattan Pal might have executed fictitious agreement on one of those papers. The allegations made by the defendant were controverted by the plaintiff in his replication. On these pleadings of the parties, the following issues were framed by the trial Court. (1) Whether the defendant executed any agreement with the plaintiff and received Rs. 2,000/- as part-payment ? (2) Whether the defendant has committed breach of contract and the plaintiff was willing and is willing to perform his part of the contract. (3) Whether the plaintiff is entitled to recovery of Rs. 2,000/- and interest thereupon in alternative ? (4) Whether the suit is maintainable in the present form ? (5) Whether the description of the property is not properly stated in the plaint ? (6) Relief. The Subordinate Judge decided issue Nos. 1, 2 and 3 in favour of the plaintiff and issue Nos. 4 and 5 against the defendant. As a result, decree for specific performance of the agreement to sell was passed in favour of the plaintiff against the defendant. Kaur Sain defendant filed appeal against this decree in the Court of the District Judge, Ludhiana and the same was dismissed by the Additional District Judge, Ludhiana on October 26, 1972. Thereafter, Kaur Sain defendant filed the present appeal.
(3.) Mr. B.L. Goswamy, the learned counsel for the appellant contested the decision of the lower Courts only, on issue Nos. 1, 2 and 3. Mr. H.L. Sarin, the learned counsel for the plaintiff-respondent, however, contended that both the Courts below after considering the oral and documentary evidence of the parties, held that the defendant executed the agreement to sell his house, Exhibit P. 5 dated December 7, 1968 in favour of the plaintiff and received Rs. 2,000/- as part payment of the sale price and that the defendant committed breach of the contract and he plaintiff was ready and willing to perform his part of the contract and these findings of fact cannot be disturbed in second appeal. In support of his contention, he relied on Deity-Patabhiramaswamy v. S. Hanymayya and others, 1959 AIR(SC) 57, wherein it was held as under :- "The provisions of section 100 are clear and unambiguous. 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. For 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. 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.";