# Baijnath Prasad Dwivedi v. Smt. Asha Devi

- **Citation:** (2020) 8 ILRA 383
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-06
- **Case number:** Second Appeal No. 1403 of 2014
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/baijnath-prasad-dwivedi-v-smt-asha-devi-46047
- **Pages:** 6

## Headnote

(A) Civil Law - Code of Civil Procedure
,1908 - Order 7 Rule 11 of the C.P.C. -
rejection of plaint - order 41 rule 31 -
contents,
date
and
signature
of
judgement - First Appellate Court canot
give a decision without formulating the
points for determination in the First
Appeal - (Para-14)

Suit for specific performance filed by the
Plaintiff/Appellant - decreed in part by the
Trial Court - instead of a direction that a sale
deed be executed upon the payment of the
remaining amount, Rs. 30,000/- alongwith 6
per cent interest was ordered to be returned
to the Plaintiff/Appellant - cross case was
brought by the defendant praying that
possession be delivered to her by the plaintiff
if in case he was found to be in possession -
First Appelate court reversed the judgment of
trial court. (para - 1)

HELD:- The cross-claim of the Defendant
that possession be handed over to the
Defendant is dismissed. The Suit is, therefore,
decreed in toto. (Para-17)

Second Appeal allowed. (E-7)

List of Cases cited:-

## Text

8 All. Baijnath Prasad Dwivedi Vs. Smt. Asha Devi
383
above, to my mind, there is no doubt that
the interest of the next friend, plaintiffrespondent no.2, Raghunath Singh, was
adverse to the interest of plaintiffrespondent no.1, Balram Singh, and by
reason of such adverse interest, prejudice
has been caused to the interest of
plaintiff-respondent no.1.

Thus the suit was not maintainable
and the courts below were not justified in
decreeing the suit.

60. This appeal is, accordingly,
allowed. The judgement and decree dated
11.7.2007 and 24.7.2007 respectively passed
by the Additional District Judge, Court No. 2,
Bijnor dismissing the Civil Appeal No. 96 of
2006 filed by the appellants, and the
judgement and decree dated 30.11.2006
passed by the Additional Civil Judge (Junior
Division), Court No. 3, Bijnor in Original
Suit No. 72 of 1995 are set aside. The
Original Suit No. 72 of 1995 is dismissed.
----------
(2020)08ILR A383
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2020

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 1403 of 2014
with
Second Appeal No. 1404 of 2014

Baijnath Prasad Dwivedi ...Appellant
Versus
Smt. Asha Devi ...Respondent

Counsel for the Appellant:
Sri Ashutosh Srivastava, Sri Prashant Kumar
Tripathi, Sri Santosh Kumar Gupta, Sri Sanjai
Kumar, Sri Shreesh Srivastava

Counsel for the Respondent:
Sri Rahul Sahai, Sri Ashish Kumar Srivastava,
Sri Ganesh Shanker Srivastava, Sri Ram Dular,
Sri Saurabh Raj Srivastav

(A) Civil Law - Code of Civil Procedure
,1908 - Order 7 Rule 11 of the C.P.C. -
rejection of plaint - order 41 rule 31 -
contents,
date
and
signature
of
judgement - First Appellate Court canot
give a decision without formulating the
points for determination in the First
Appeal - (Para-14)

Suit for specific performance filed by the
Plaintiff/Appellant - decreed in part by the
Trial Court - instead of a direction that a sale
deed be executed upon the payment of the
remaining amount, Rs. 30,000/- alongwith 6
per cent interest was ordered to be returned
to the Plaintiff/Appellant - cross case was
brought by the defendant praying that
possession be delivered to her by the plaintiff
if in case he was found to be in possession -
First Appelate court reversed the judgment of
trial court. (para - 1)

HELD:- The cross-claim of the Defendant
that possession be handed over to the
Defendant is dismissed. The Suit is, therefore,
decreed in toto. (Para-17)

Second Appeal allowed. (E-7)

List of Cases cited:-

1. C. Venkata Swamy Vs H.N. Shivanna (dead) by
legal representative & anr., (2018) 1 SCC 604

2. Kanailal & ors.Vs Ram Chandra Singh &
ors., (2018) 13 SCC 715

3. Laliteshwar Prasad Singh & ors. Vs S.P.
Srivastava (dead) through Lr's), (2017) 2 SCC 415

4.
Ram
Pher
Vs
Deputy
Director
of
Consolidation Faizabad, 2008 RD (105) 618

5. Smt. Sawarni Vs Smt. Inder Kaur & ors.,
(1996) 6 SCC 223

6. Faqruddin Vs Tajuddi), 2009 RD (106) 440
384 INDIAN LAW REPORTS ALLAHABAD SERIES
7.
Suraj
Bhan
&
ors.
Vs
Financial
Commissioner & ors., 2007 RD (103) 116

8. Smt. Veena Agarwal Vs M/s Unjha Ayurvedi
Pharmacy & ors, 2018 (7) ADJ 840

(Delivered by Hon'ble Siddhartha Varma, J.)

1. A Suit for specific performance
was filed by the Plaintiff/Appellant
Baijnath Prasad Dwivedi which was
decreed in part by the Trial Court on
30.11.2010 and instead of a direction that
a sale deed be executed upon the
payment of the remaining amount, Rs.
30,000/- alongwith 6 per cent interest
was ordered to be returned to the
Plaintiff/Appellant. A cross case was
brought by the defendant praying that
possession be delivered to her by the
plaintiff if in case he was found to be in
possession. The cross case of the
defendant was dismissed for want of
court fees. Against the decree, both the
Plaintiff/Appellant and the Defendant
filed separate Appeals. The Appeal filed
by the Plaintiff/Appellant was numbered
as 52 of 2011 and the First Appeal filed
by the Defendant was numbered as 168
of 2010. The Plaintiff/Appellant had filed
the Appeal for decreeing the Suit in toto
meaning thereby that the Defendant be
directed to execute the sale deed as per
the registered agreement dated 5.1.1988
and the Defendant filed the First Appeal
for dismissing the Suit as a whole and for
decreeing her cross-claim. The First
Appeal of the Plaintiff/Appellant was
dismissed whereas the First Appeal of the
Defendant was allowed.

2. The Second Appeal No. 1403 of
2014 as also the Second Appeal No. 1404
of 2014 were filed by the plaintiff. At the
time
of
admission,
the
following
questions of law were framed.

"(I) Whether the failure on the
part of the court below to decide the civil
appeal after formulating the points of
determination as required under the
mandatory provisions of order 41 Rule
31 C.P.C. is manifestly illegal and
consequently the judgment and decree
passed by the court below is liable to be
set-aside.

(II) Whether in the facts and
circumstances of the case the finding
recorded by the trial court on issue no. 1
refusing
the
decree
of
specific
performance on account of contingency
even when the registered agreement to
sell was duly proved in evidence is
manifestly illegal."

3. The Original Suit being Original
Suit No. 98 of 1991 was instituted by the
Plaintiff/Appellant on 29.1.1991 wherein
it was stated that the Plaintiff/Appellant
was entitled for getting a sale deed
executed in pursuance of the registered
agreement to sell dated 5.1.1988. It was
further stated that the cause of action had
arisen on 11.1.1991 when the Defendant
Asha Devi it was learnt had entered into
a compromise with Rambabu, the brother
of Budh Prakash from whom Asha Devi
herself had bought the property on
26.5.1987. It was stated in the Plaint that
initially one Budh Prakash, the son of
Mata Prakash resident of Balkaranpur
was the owner of the property with
regard to which the Defendant Asha Devi
had entered into an agreement to sell on
5.1.1988. The Plaintiff/Appellant had
stated that when the Defendant had
purchased the property on 26.5.1987
from Budh Prakash, she had filed an
application for mutation in her name
before the Consolidation Officer, Soraon
and this application was still pending.
The sale deed executed by Budh Prakash
8 All. Baijnath Prasad Dwivedi Vs. Smt. Asha Devi
385
was admitted by him. After Budh
Prakash had sold the property to the
Defendant Asha Devi, the brother of
Budh Prakash, Rambabu had tried to get
his name mutated over the property in
question, to the exclusion of Asha Devi.
However, when Asha Devi contested the
case with Rambabu, the name of Budh
Prakash had continued despite the fact
that the Defendant Asha Devi had agreed
to
sell
the
property
to
the
Plaintiff/Appellant
by
a
registered
agreement dated 5.1.1988. When on
11.1.1991, the Plaintiff/Appellant came
to know that the Defendant was entering
into a compromise with Rambabu then he
filed the instant Suit. Before filing the
Suit, he had put the Defendant Asha Devi
to notice that she had to appear before the
Registrar for executing the sale deed.

4. The Defendant Asha Devi had
contested the Suit and had come forward
with a case that the Defendant Asha Devi
was neither the owner of the property in
question nor was the Plaintiff/Appellant
in possession over it. She also stated that
the agreement was entered into under
some misconception. She also stated that
the Plaintiff/Appellant by some illegal
means had got himself entered as a
person in possession under proceedings
initiated under Section 145 of the Cr.P.C.
and had got possession over the property
illegally. She also, therefore, prayed that
the Plaintiff/Appellant be dispossessed
and she be given possession.

5. During the course of trial as
many as 10 issues were framed. The
First Issue was with regard to the fact as
to whether any agreement was entered
into between the Defendant and the
Plaintiff/Appellant on 5.1.1988 and as to
whether it was to be enforced.

6. The second issue was as to
whether the agreement to sell dated
5.1.1988 was a result of fraud and
misrepresentation.

7. On the basis of the decision of
these two issues, the Suit was partly
decreed. However, the relief of specific
performance and therefore the execution
of the sale deed was refused saying that
the name of Budh Prakash was still
entered and mutation proceedings were
still going on and that the Defendant had
yet not got any permission to sell. The
Plaintiff/Appellant's money which he had
paid to the Defendant amounting to Rs.
30,000/- was, however, ordered to be
returned. The Second Issue with regard
to the fact that as to whether the
agreement was a result of fraud and
misrepresentation was decided in favour
of the Plaintiff/Appellant. The crossclaim of the Defendant though was found
to be within limitation was dismissed
under Order 7 Rule 11 of the C.P.C. as
no court fee was paid and the Suit was
decreed only to the extent that the
Plaintiff/Appellant was to be returned Rs.
30,000/- with an interest of 6 per cent.

8. The First Appellate Court,
however, reversed the decree. With
regard to the fact as to whether the
agreement
dated
5.1.1988
was
enforceable, it held that it was not
enforceable as the statement given by the
witnesses of the Plaintiff/Appellant and
the Statement as was recorded at the time
of the registration before the Subregistrar had some discrepancies. The
statement of P.W. 1 stated that Rs.
30,000/- advance was given in two
installments whereas the Sub-registrar
had noted that Rs. 30,000/- were paid by
the Plaintiff/Appellant(purchaser) and
386 INDIAN LAW REPORTS ALLAHABAD SERIES
that Rs. 15,000/- was still to be paid to
the seller.

9. Further more, the Appellate
Court while deciding the issue no. 2 had
found that the agreement to sell was not a
result of a bonafide agreement but was a
result of misrepresentation and fraud.
This it had said because Devi Shankar
Ojha even though was a marginal witness
did not appear before the Registrar and
further the husband of the Defendant,
Hari Shankar, who was as per the
Defendant, an alcoholic had put in his
signature
on
the
agreement.
After
reversing the two findings given on the
two issues by the Trial Court the Appeal
of the Plaintiff/Appellant was dismissed
in toto and the appeal of the Defendant
was allowed. When the Appeal was
allowed it meant that the cross-claim was
decreed
and
eviction
of
the
Plaintiff/Appellant was directed from the
property in dispute. With regard to
substantial questions of law, learned
counsel
for
the
Plaintiff/Appellant
submitted that a judgement of the First
Appellant Court which did not contain
points
for
determination
was
an
erroneous one. In this regard, learned
counsel for the Plaintiff/Appellant relied
upon the following judgements:

1. 2018 (1) SCC 604 ( C.
Venkata Swamy v. H.N. Shivanna (dead)
by legal representative and another)

2. 2018 (13) SCC 715 (Kanailal
& others v. Ram Chandra Singh &
others)

3.
2017
(2)
SCC
415
(Laliteshwar Prasad Singh & others vs.
S.P. Srivastava (dead) through Lr's)

10. So far as the substantial
question of law no. 2 is concerned,
learned
counsel
for
the
Plaintiff/Appellant submitted that when
the Trial Court had found that the
Defendant Asha Devi had purchased the
property from Budh Prakash then there
was no other option with the courts
below but to conclude that she was the
owner. Execution of the sale deed could
not have been denied simply on account
of the fact that the name of Asha Devi
had yet not been mutated. He submitted
that it is settled principle of law that
mutation is only an exercise which is
undertaken by the Revenue Authorities to
collect revenue. The mutation of the
name of a particular individual does not
bestow any title in that person. He
submits that if Budh Prakash was the
owner and Asha Devi had purchased the
property in question from him on
26.5.1987
then
the
claim
of
the
Plaintiff/Appellant could not have been
denied simply because the name of Asha
Devi had not been entered.

11. Learned counsel for the
Plaintiff/Appellant relied upon 2008 RD
(105) 618 (Ram Pher v. Deputy Director
of Consolidation Faizabad), 1996 (6)
SCC 223(Smt. Sawarni v. Smt. Inder
Kaur and Ors.), 2009 RD (106) 440
(Faqruddin v. Tajuddin) and 2007 RD
(103) 116 (Suraj Bhan and Ors. vs.
Financial Commissioner and Ors.) and
submitted
that
mutation
entries
in
revenue records did not confer any title.
In fact, the court below erred in not
looking
into
the
sale
deed
dated
26.5.1987 by which the defendant had
got the title.

12. Learned counsel for the
respondent/defendant,
however,
supported the judgement of the First
Appellate Court and submitted that when
8 All. Baijnath Prasad Dwivedi Vs. Smt. Asha Devi
387
issues as had been framed at the Trial
Stage and had been decided once again
by the First Appellate Court then there
was no error as such committed by the
First Appellate Court. Learned counsel
for the Defendant submitted that when
the agreement dated 5.1.1988 was a
result of misrepresentation and fraud then
no indulgence had to be granted to the
Plaintiff/Appellant.
He
once
again
reiterated the reasons as had been
mentioned by the First Appellate Court,
namely, that there was discrepancy in the
statements of the witnesses and the
statement of the Assistant Registrar as
was
endorsed
on
the
registered
agreement to sell.

13. Learned counsel for the
Defendant also relied upon 2018 (7) ADJ
840 (Smt. Veena Agarwal vs. M/s Unjha
Ayurvedi Pharmacy and Others) and
submitted that there was no right with
plaintiff to get the sale deed executed.

14. Having heard the learned
counsel for the parties and after having
gone through the judgements of the two
courts below and also the record, I am of
the view that the Appellate Court had
erred in reversing the findings as had
been arrived at by the Trial Court.
Furthermore, I am of the view that the
Trial Court also had erred in not granting
the relief of Specific performance to the
plaintiff. The Defendant ought to have
been directed to execute the sale deed as
per the registered agreement to sell dated
5.1.1988. The facts as they were had
been proved to the hilt at the stage of
Trial that Budh Prakash had sold the
property to the the Defendant Asha Devi
on
26.5.1987
and
thereafter
the
Defendant Asha Devi had agreed to sell
the property to the Plaintiff/Appellant on
5.1.1988 by means of a registered
agreement to sell. If the name of the
Defendant had not been entered it did not
mean that the title had not flown to the
Defendant. The agreement to sell had
been proved to the hilt and the execution
of the sale deed should, therefore, have
been directed. I also find that when the
Defendant had denied her title then she
should not have contested the suit itself.
Further the Court finds that the reversal
of the judgement of the Trial Court by
the First Appellate Court by relying upon
the discrepancies in the statement of the
witnesses and the statement made on the
agreement to sell by the Assistant
Registrar also was an error which
resulted in a wrong decision of the First
Appeal. The First Appellate Court also
wrongly relied upon the fact that in the
agreement another individual had signed
whereas before the Registrar another
individual
had
signed.
The
First
Appellate Court also erred in finding that
the husband of the defendant who, as per
the Defendant, was an alcoholic should
not have signed on the agreement. The
Court finds that when there was no issue
framed with regard to the reliability of
the husband's evidence then the First
Appellate
Court
could
not
have
concluded that the signature of the
husband of the Defendant on the
agreement could lead to a conclusion that
the
agreement
was
entered
into
fraudulently.
The
First
substantial
question of law as to whether the First
Appellate Court could have given a
decision without formulating any point of
decision is answered in favour of the
plaintiff/appellant. It is settled law that
the First Appellate Court could not have
given a decision without formulating the
points for determination in the First
Appeal. The Second substantial question
388 INDIAN LAW REPORTS ALLAHABAD SERIES
of law as was formulated at the time of
admission of the Second Appeal is also
answered
in
favour
of
the
Plaintiff/Appellant. When in fact, the
agreement to sell was not a result of
fraud and misrepresentation as had been
found by the Trial Court then the suit
ought to have been decreed in toto. The
Trial Court had concluded that the
agreement to sell was entered into and
had also correctly concluded that there
was no fraud or misrepresentation at the
time when the agreement to sell was
entered into.

15.

I
also
find
that
the
Plaintiff/Appellant was always ready and
willing to perform his part of the
`agreement as he had put to notice the
Defendant to reach the Registrar's office.

16. Under such circumstances, the
substantial question no. 2 is also
answered
in
favour
of
the
Plaintiff/Appellant.

17. Under such circumstances, the
Second Appeals No. 1403 of 2014 and
1404 of 2014 are allowed. The Plaintiff's
Suit for the execution of the sale deed
upon the payment of the remaining
amount of Rs. 15,000/- is decreed. The
cross-claim
of
the
Defendant
that
possession be handed over to the
Defendant is dismissed. The Suit is,
therefore, decreed in toto.
----------
(2020)08ILR A388
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.06.2020

BEFORE

THE HON'BLE KAUSHAL JAYENDRA
THAKER, J.
FAFO No. 1022 of 1999
with
FAFO No. 1010 of 1999

National Insurance Co. Ltd., Allahabad
 ...Appellant
Versus
Smt. Urmila Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri K.S. Amist

Counsel for the Respondents:
Sri C.P. Mishra

A. Civil Law - Motor Accident Claim -
Driving Licence - Evidentiary value -
Strict Proof - Necessity - Motor Vehicles
Act, 1988 is a beneficent and benevolent
piece of legislation - It has been
enacted to award just and reasonable
compensation to the victims of the road
accident - While deciding the claim
petition filed by the claimants, it is not
necessary for the Tribunal to insist for
strict proof of the documents produced
by the claimants - Tribunal is obliged
not to make these strict principles
applicable to the proceedings before the
Claims
Tribunal
if
the
documents
produced by the claimants are found to
be genuine and correct - The document,
i.e., driving lincence, unless proved to
be unreliable or proved to be a fake
driving lience, has to be considered and
not be neglected. (Para 7 and 8)
B. Civil Law - Motor Accident Claim -
Computation of Compensation - Future
loss - Multiplier - The amount of
pension or other benefits received by
the family on account of death of a
person in service cannot be deducted -
Held, the Pay Commission's report if we
take into consideration which came into
effect
after
2006
but
was
made
applicable from 1999 a rough figure of
addition of 70 per cent for future loss of
income would be just and proper - The
multiplier should be 17 as per Sarla
Varma's
case.
(Para
16
and
17)