# Ami Chand v. Smt. Subhadra Devi and others

- **Citation:** (2002) 2 ILRA 314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-02-18
- **Case number:** Second Appeal No. 24 of 1993
- **Bench:** B.K. Rathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ami-chand-v-smt-subhadra-devi-and-others-39825
- **Pages:** 4

## Headnote

Code of Civil Procedure- Section 100-
Second Appeal- finding of facts when can
be set a side by the Appellate Court
relevant contingencies and scope of law
discussed.

Held- Para 9 and 10

The findings of the facts of the courts
below can be examined in the second
appeal, if the same is against the weight
of the evidence.

In view of the decisions of the Apex
Court, in the circumstances, the findings
of the courts below regarding fact can be
set aside in this second appeal.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
314
not only independent but also appears to
be independent.

11. In the circumstances we direct
that in the panel which has been prepared
for appointment of Vice Chairmen of
various benches of CAT and in future
panels also, only the persons referred to
Section 6 (2) (a) can be appointed as the
Vice Chairmen of the various benches of
the CAT.

12. Let a copy of this order be
communicated forthwith by the Registrar
General of this Court as well as the
learned counsel for the Central Govt. to
the Union Law Secretary, New Delhi and
Chairman of the CAT, New Delhi. The
petitioner may also communicate it to the
appropriate authorities.

13. Let a copy of this order may be
given to the counsel for the parties on
payment of usual charges today.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2002

BEFORE
THE HON'BLE B.K. RATHI, J.

Second Appeal No. 24 of 1993

Ami Chand

...Appellant
Versus
Smt. Subhadra Devi and others

...Respondents

Counsel for the Appellant:
Sri Vishnu Sahai
Sri B. Dayal

Counsel for the Respondents:
Sri Dhan Prakash
Sri M.A. Siddiqui

Code of Civil Procedure- Section 100-
Second Appeal- finding of facts when can
be set a side by the Appellate Court
relevant contingencies and scope of law
discussed.

Held- Para 9 and 10

The findings of the facts of the courts
below can be examined in the second
appeal, if the same is against the weight
of the evidence.

In view of the decisions of the Apex
Court, in the circumstances, the findings
of the courts below regarding fact can be
set aside in this second appeal.

(Delivered by Hon'ble B.K. Rathi, J.)

1. This second appeal has been
preferred against the judgment and decree
dated 12.10.1992 passed by Sri Pooran
Singh, Special Judge/Additional District
Judge, Bulandshahr in Civil Appeal No.
249 of 1975.

The fact giving rise to this appeal are
as follows:

2. The appellant filed a suit for
specific performance of contract of sale. It
is alleged that the respondent no. 1, Smt.
Subhadra Devi was owner of the disputed
plot no.23, measuring 2 bigha 5 biswas
situated in the village Salampur, Pargana
Shikarpur,
district
Bulandshahr.
She
agreed to sale the said plot in favour of
the plaintiff for a consideration of
Rs.24,000/-. A sum of Rs.5,000/- was
paid in advance and registered agreement
to sale was executed on 23.08.1973. It
was agreed that the sale deed shall be
executed by 30.09.1973 on payment of
balance sale consideration of Rs.19,000/-.
That on 08.09.1973, the respondent no.1
came
to
Bulandshahr
treasury
and
2 All] Ami Chand Vs. Smt. Subhadra Devi and others
315
purchased the stamp worth Rs.1,080/- for
the execution of the sale deed and agreed
to execute the sale deed within five-seven
days. That the sale deed was not executed
and, therefore, registered notice was given
on 13.09.1973 which was served on
15.09.1973. It is further alleged that the
appellant was ready and willing to
perform his part of contract and therefore,
the suit was filed.

3. It is also alleged that the
respondent no. 1 executed the sale deed of
the disputed land in favour of the
respondents nos. 2 to 4 on 28.11.1973
after the institution of the suit; that
therefore, the sale deed in their favour is
effected by the principle of lis-pendence.
The respondent nos.2 to 4 were therefore,
implicated in the suit by amendment.

4. The respondent no.1 filed one
written statement and the respondent nos.
2 to 4 filed separate written statement.
The common ground taken by them is that
the respondent no.1 never executed any
agreement to sale in favour of the
appellant; that prior to the alleged
agreement the respondent no. 1 agree to
sale the disputed land to respondent nos.2
to 4 on 08.08.1973 for consideration of
Rs.25,500/- and executed the agreement
to sale and received Rs.2,000/- as earnest
money; that they further paid a sum of
Rs.8,000/- to the respondent no.1 on
18.08.1973. The sale deed was got
executed by the respondent nos.2 to 4
from respondent no. 1 on 28.11.1973. It
was further pleaded by the respondent
nos.2 to 4 that they are bonafide
purchasers for value and that the plaintiff
got the agreement executed in his favour
by defrauding the respondent no.1.

5. The trial court framed necessary
issues and held that the respondent no.1
agreed to sale the disputed land in favour
of the appellant as alleged, that the
respondent nos. 2 to 4 are purchasers with
notice of the agreement and sale deed in
their favour is also effect by the principle
of
lis-pendence;
that
the
alleged
agreement dated 08.08.1973 in favour of
respondent nos. 2 to 4 is forged
document. The trial court accordingly,
decreed the suit. Aggrieved by it, appeal
no.249 of 1975 was preferred by
respondent nos.2 to 4 which have been
allowed. The first appellate court has held
that the alleged agreement in favour of the
appellant is forged document. Therefore,
the suit has been dismissed with costs.
Aggrieved by it, the present appeal has
been preferred.

6. I have heard Sri V. Sahai, learned
counsel for the appellant. At the time of
hearing of the appeal no body appeared
for the respondents and therefore, could
not be heard. However, I have gone
through the entire record and the
evidence.

7. It is alleged by the appellant that
the registered agreement to sale in favour
of the appellant was executed by the
respondent no.1 and for in pursuance of
that agreement, advance money was paid
and the stamps were purchased for
execution of the sale deed. The said
agreement has been proved by Giriraj
Singh, who was also plaintiff in his
statement as PW-1, and he supported the
plaint case. The respondent no.1 no doubt
in the written statement has denied the
execution of the agreement and alleged
that the same is forged. However, after
filing the written statement, she preferred
to remain absent and did not appear in the
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
316
suit as well as in the first appeal or even
in the second appeal. She did not enter
into witness box to deny the agreement
and to say that it has not been signed and
executed by her. It is very important to
mention that the respondent nos.2 to 4,
who contested the suit, in their written
statement has not alleged that the
agreement in favour of the appellant is
forged or was not executed by the
respondent no.1. On the other hand, they
pleaded that inspite of the agreement in
favour of respondent nos.2 to 4 by the
respondent no.1 the plaintiff got executed
a registered agreement in his favour in
order to cause illegal loss to respondents
nos.2 to 4. Therefore, the execution of the
agreement by the respondent no. 1 in
favour of the appellant is admitted to the
contesting respondents nos.2 to 4. As such
the finding of the first appellate court that
the agreement in favour of the appellant is
forged document and was not executed by
the respondent no.1 is against the
evidence and also against the pleading of
the parties based on surmises and
conjectures and extraneous consideration.
In this case, it will not be out of place to
mention that the first appeal was preferred
by the respondents nos.2 to 4 only and not
by
the
respondent
no.1.
She
was
respondent in the first appeal, in which
the above finding was recorded. She,
therefore, did not challenge the finding;
that she executed the agreement for sale
in favour of the appellant. This finding
was challenged by the respondent nos.2 to
4, who as said above in the written
statement has admitted the execution of
the agreement. Therefore, it was not open
to them to challenge this finding in the
first appeal against their pleadings. I am
surprised that this important aspect has
totally been ignored by the first appellate
court in order to decided the appeal in a
particular way and the agreement has
been discarded on non existent ground.

8. It will not be out of place to
mention that the trial court has held that
alleged agreement in favour of the
respondents nos.2 to 4 dated 08.08.1973
is forged document and has been got
prepared afterwards. The sale deed in
favour of the respondents nos.2 to 4 dated
28.11.1973 was executed after the suit
was filed on 01.10.1973. Therefore, the
purchasers by this sale deed shall be
presumed to have notice of agreement in
favour of the appellant and the sale is also
effected by the principle of lis-pendence.
This finding of fact has not been touched
by the first appellate court and no finding
has been recorded on this point. Only on
the basis of one finding that the alleged
agreement is forged document, which in
my opinion is totally perverse finding.

9. The findings on the facts of the
courts below can be examined in the
second appeal, if the same is against the
weight of the evidence. In this connection,
I may refer to the decision of the Apex
Court in M.S.V. Raja and another
Versus Seeni Thevar and others, (2001)
6 S.C.C., 652. In this case, it was
observed by the Apex Court that propriety
of finding recorded by both lower courts
without any evidence in support thereof,
is itself a substantial question of law.

10. The other decision on this point
is Saraswathi and another Versus S.
Ganapathy and another, (2001) 4
S.C.C., 694. Where it was held by the
Apex Court that even if there is contrary
concurrent findings of fact but are
contrary to the evidence on record the
High Court can set aside the findings in
the
second
appeal.
2 All] Surendra Kumar Pandey and another Vs. State of U.P. and others
317

11. In the case of Vishnu Prakash
and another Versus Sheela Devi (Smt.)
and others, (2001) 4 S.C.C., 729. The
Apex Court has held that where the lower
courts have ignored evidence on record,
including positive statements of witnesses
or findings in judgments in earlier related
cases or where parties have made certain
admissions in earlier cases, the High
Court can interfere in the second appeal.

12. In the case of D.S. Thimmappa
Versus Siddaramakka (1996) 8 S.C.C.,
365. It was observed that where the first
appellate court has failed to draw proper
inference from proved facts and to apply
law in proper perspective, the High Court
can interfere in the second appeal.

13. In the case of Jagdish Singh
Versus Natthu Singh, 1992 A.L.J., 620.
It was observed by the Apex Court that
findings of fact of the courts below due to
non-consideration of relevant evidence or
by essentially wrong approach are vitiated
and the High Court is not precluded from
recording proper findings.

14. In view of the decisions of the
Apex Court, in the circumstances, the
findings of the courts below regarding
fact can be set a side in this second
appeal.

15. Accordingly, the second appeal
is allowed with costs throughout and the
judgment and decree of the first appellate
court are quashed and that of the trial
court is restored.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.03.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 16899 of 2001

Surendra Kumar Pandey and another

 ...Petitioners
Versus
State of Uttar Pradesh and others

 ...Respondents

Counsel for the Petitioners:
Sri Umesh Narain Sharma
Sri Arun Kumar Mishra
Sri Jai Prakash Rai

Counsel for the Respondents:
Sri B.N. Singh
S.C.

Article 226 of the Constitution of India-
the validity of waiting list- the life of the
waiting list is for a period of one year
and no reshuffling can be made after
expiry of that period from the candidates
of that waiting list, and the remaining
vacancies will have to be filled up by a
fresh selection.

(Held in para 6)
The life of the waiting list is for a period
of one year and no reshuffling can be
made after expiry of that period from the
candidates of that waiting list, and the
remaining vacancies will have to be filled
up by a fresh selection. Now there is no
provision of preparation of waiting list
and in view of the decision as has been
given by this court the life of the waiting
list also lapses after one year and
therefore on either court it appears that
the petitioners are not entitled go get
any relief.
Case law Discussed-
(1995) 2 UPLBEC 985
AIR 1990 SC 405