# Chandra Bhan v. Aditya Prasad

- **Citation:** (2024) 7 ILRA 1288
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-18
- **Case number:** Second Appeal No. 224 of 1986
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-bhan-v-aditya-prasad-52241
- **Pages:** 13

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Section 100 - O.41 R. 24, O.41 R. 27 -
Evidence Act, 1872 - Sections 45 & 101 -
Uttar Pradesh Consolidation of Holdings
Act, 1953 - Sections 5(c), 5(1)(c) (ii), 9A -
Plaintiff-respondents filed suit for specific
performance
with
allegation
that
defendant no.1 was sirdar of disputed
land - An agreement for sale had taken
place in between plaintiff and defendant
No.1 for Rs.8000/-. and Rs.6000/- was
paid to defendant no.1 - Defendant No.1
executed
Ikrarnama
and
agreed
to
execute a sale deed after becoming
Bhumidhar - When the plaintiff asked
defendant no.1 to pay remaining amount
and get sale deed executed, she told that
sale deed was executed in favour of
defendants no. 2 to 5 - Defendants
contended that she deposited twenty
times
land
revenue,
thereafter
she
became the Bhumidhar - Trial court
decreed the suit of plaintiff, directed that
defendant no.1 shall execute sale deed
after receiving Rs.2000/- , failing which
the plaintiff would executed on expenses
of defendant - Defendant filed appeal,
dismissed - Held, the Trial Court, after
considering evidence found that P.W.1 to
P.W.3
proved
agreement
to
sale
in
accordance with law - In view of Section
101, the burden to prove that agreement
was not made by her was on her - The
trial court found that sale deed was
executed
during
consolidation
proceedings, therefore it is illegal and non
effective - The plaintiff have proved their
readiness and willingness of performance
and get the sale deed executed. (Para 4, 6,
7, 16, 17, 22, 24)

Second Appeal Dismissed. (E-13)
7 All. Chandra Bhan Vs. Aditya Prasad
1289
List of Cases cited:

## Text

_Characters 0–39,823 of 41,413. This is a partial read: ask again with offset=39823 for what follows._

1288 INDIAN LAW REPORTS ALLAHABAD SERIES
26. Consequently, the substantial
questions of law framed by this Court are
answered in the manner that though, after
performance of remarriage by Bhagirathia
with Mahadeo in the year 1919, she ceased
to have any right or interest in the estate of
her deceased husband Algu, the same was
not sufficient to decree the suit for
injunction and, consequently, the judgment
of the lower Appellate Court granting a
decree deserves to be set aside.

27. Accordingly, the second appeal
succeeds and is allowed with above
findings and observations.

28. The judgement of First
Appellate Court dated 11.10.1984 passed in
Civil Appeal No. 481 of 1982 (Deena Nath
vs Lachhminia and others) is hereby set
aside. The Original Suit No. 132 of 1979
(Shri Deena Nath vs Shri Hari and others)
stands dismissed.

29. Office is directed to remit the
record of first appellate court as well as
trial court to the District Judge, Gazipur
forthwith so as to facilitate return of
original documents to the concerned parties
by the District Court office in accordance
with the provisions of General Rules
(Civil).
----------
(2024) 7 ILRA 1288
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.07.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 224 of 1986

Chandra Bhan ...Appellant
Versus
Aditya Prasad ...Respondent

Counsel for the Appellant:
H.S. Sahai, Avadhesh Kumar, Om Prakash
Pandey

Counsel for the Respondent:
R.S. Pandey, Aditya Kumar Tiwari, Chandra
Bhooshan, Suyash Dwivedi, Vaishali Mishra

Civil Law - Civil Procedure Code, 1908 -
Section 100 - O.41 R. 24, O.41 R. 27 -
Evidence Act, 1872 - Sections 45 & 101 -
Uttar Pradesh Consolidation of Holdings
Act, 1953 - Sections 5(c), 5(1)(c) (ii), 9A -
Plaintiff-respondents filed suit for specific
performance
with
allegation
that
defendant no.1 was sirdar of disputed
land - An agreement for sale had taken
place in between plaintiff and defendant
No.1 for Rs.8000/-. and Rs.6000/- was
paid to defendant no.1 - Defendant No.1
executed
Ikrarnama
and
agreed
to
execute a sale deed after becoming
Bhumidhar - When the plaintiff asked
defendant no.1 to pay remaining amount
and get sale deed executed, she told that
sale deed was executed in favour of
defendants no. 2 to 5 - Defendants
contended that she deposited twenty
times
land
revenue,
thereafter
she
became the Bhumidhar - Trial court
decreed the suit of plaintiff, directed that
defendant no.1 shall execute sale deed
after receiving Rs.2000/- , failing which
the plaintiff would executed on expenses
of defendant - Defendant filed appeal,
dismissed - Held, the Trial Court, after
considering evidence found that P.W.1 to
P.W.3
proved
agreement
to
sale
in
accordance with law - In view of Section
101, the burden to prove that agreement
was not made by her was on her - The
trial court found that sale deed was
executed
during
consolidation
proceedings, therefore it is illegal and non
effective - The plaintiff have proved their
readiness and willingness of performance
and get the sale deed executed. (Para 4, 6,
7, 16, 17, 22, 24)

Second Appeal Dismissed. (E-13)
7 All. Chandra Bhan Vs. Aditya Prasad
1289
List of Cases cited:

1. Jagdish Prasad Patel (dead) through Legal
representatives & anr. Vs Shivnath & ors.,
(2019) 6 SCC 82

2. U.N.Krishnamurthy (since Deceased) through
LRs Vs A.M. Krishnamurthy, 2022 (40) LCD 2445

3. Smt. Ram Rati & ors. Vs Gram Samaj, Jehwa
& ors., AIR 1974 Allahabad 106 Full Bench

4. Smt. Ram Dei Vs Joint Director of
Consolidation & ors., 2020 (38) LCD 1455

5. Daulat Ram & ors. Vs Sodha & ors., AIR 2005
Supreme Court 233

6. Robins Vs National Trust Company, Limited, &
ors., A.C. and Privy Council 515

7. Narendra Bahadur Singh & ors. Vs Ram
Manorath Singh & ors., 2023 (41) LCD 2023

8. Suryakunwari Vs Nanhu & ors. 2019 (37) LCD
2346

(Delivered by Hon'ble Rajnish Kumar, J)

1. Heard, Shri Avadhesh Kumar,
learned counsel for the appellant and Shri
Aditya Kumar Tiwari, learned counsel for
the respondents.

2. This Second Appeal under
Section 100 of the Civil Procedure Code
1908 has been filed against the judgment
and decree dated 28.02.1986 passed by II
Addl. District Judge, Faizabad in Civil
Appeal No.410 of 1980; Smt. Ram Sanehi
and others Versus Aditya Prakash which
has been dismissed with cost affirming the
judgment and decree dated 24.09.1980
passed by the Munsif, Hawali, Faizabad in
Regular Suit No.182 of 1979; Aditya
Prakash Pandey Versus Srimati Ram Sanehi
and others, by means of which the suit had
been decreed providing therein that the
defendant
no.1
would
execute
the
registered sale-deed within one month after
taking Rs.2000/- from the plaintiff failing
which the plaintiff would get it done from
the court on the expenses of defendants.

3. The substantial questions of law
formulated in this appeal are as under:-

"(1) Whether the burden to
prove that the transaction with an
illiterate and infirm village lady
was made, fairly, consciously and
with independent advice of the lady
or not was on the defendant-lady or
on the plaintiff-respondents and as
to whether without proof of the
same, the courts below were
justified in decreeing the suit?"
(2) Whether the lower
appellate court was justified in
refusing the prayer of the lady to
get herself examined in court and
still drawing inferences for not
examining herself."

4. The brief facts of the case
giving rise to this appeal are that the
plaintiff-respondents had filed suit for
specific performance and damages with the
allegation that defendant no.1 was the
sirdar of the disputed land. She wanted to
dispose of, for which an agreement for sale
had taken place in between the plaintiff and
defendant No.1 for Rs.8000/-. Out of which
a sum of Rs.6000/- was paid to the
defendant no.1 by the plaintiff. Defendant
No.1 executed an Ikrarnama because at that
time this land was Sirdari land of defendant
no.1. Defendant no.1 agreed to execute a
sale deed in favour of plaintiff in respect of
the land in question after becoming the
Bhumidhar. She also agreed to give the
possession to the plaintiff and gave it after
taking Rs. 6000/-. Defendants no.2 to 5 are
the Pattidars of plaintiff. They kept enmity
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
with him. They misguided the defendant
no.1. When the plaintiff went to defendant
no.1 to pay the remaining amount and get
the sale deed executed, she refused to take
it and she told that she executed a sale deed
in favour of defendants no. 2 to 5 in respect
of the land in question. Defendants no.2 to
5 had misguided the defendant no.1 and got
the sale deed executed in their favour from
her. Defendant no. 2 to 5 were knowing this
fact that defendant no.1 had executed
Ikrarnama in his favour even then they
persuaded defendant no.1 to get the sale
deed executed in their favour.

5. Defendant no.1 had filed written
statement and alleged that she had executed
a sale deed in favour of defendants no. 2 to
5 in respect of the land in question after
taking consideration of Rs.9000/-. She
alleged that she never talked with plaintiff
to sale the land in question. She never
executed any Ikrarnama in favour of the
plaintiff. She never talked with plaintiff to
give the possession to him. The plaintiff
was not in possession over the land in
question. She never made her signatures or
thumb impression over any plain and blank
paper. The plaintiff never raised any
objection for execution of sale deed in
favour of defendants no.2 to 5.

6. Defendants no. 2 to 5 had filed
their
written
statement
alleging
that
defendant no.1 was the Sirdar of the land in
question. She deposited twenty times land
revenue and thereafter she became the
Bhumidhar of the land in question. She
executed a sale deed dated 24.06.1976 in
favour of defendants no. 2 to 5. She
delivered the possession to the defendants
no. 2 to 5. They have been coming in
possession over it. They have become the
owner of it. The defendant no.1 never
executed any agreement in favour of
plaintiff. The alleged agreement is forged
and fictitious. Plaintiff was never in
possession over this land. The alleged
Ikrarnama is antedated.

7. After exchange of pleadings six
issues were framed by the Trial court and
thereafter the evidence was adduced by the
parties. After considering the evidence
adduced by the parties learned trial court
decreed the suit of the plaintiff-respondent
with a direction that the defendant no.1
shall execute the sale deed after receiving
Rs.2000/- from the plaintiff-respondent
failing
which
the
plaintiff-respondent
would get it executed on the expenses of
the
defendant.
Being
aggrieved
the
defendant-appellants
preferred
appeal
against the judgment and decree passed by
the trial court. The appeal has been
dismissed confirming the judgment and
decree passed by the trial court, therefore
the defendant-appellants are before this
court in this second appeal.

8. Learned counsel for the
appellants submitted that no agreement was
made by the defendant no.1, namely,
Smt.Ram
Sanehi,
with
the
plaintiffrespondents. She had denied her thumb
impression or signatures on the alleged
agreement to sale. The suit for specific
performance was filed on misconceived
and baseless grounds on the basis of the
forged agreement. The learned Trial court
as well as the appellate court, without
considering the pleadings of the parties,
material and evidence on record decreed
the suit and dismissed the appeal. He
further submitted that the application for
additional evidence filed before the First
Appellate court had wrongly and illegally
been rejected by means of the order dated
12.08.1983 by the First Appellate Court. In
case the application would have been
7 All. Chandra Bhan Vs. Aditya Prasad
1291
allowed and the thumb impression verified,
the matter could have been settled. He
further submitted that the defendant no.1
Smt.
Ram
Sanehi,
the
executor
of
agreement to sale died during pendency of
the First Appeal, therefore the direction
issued by the trial court has become non
executable after her death and it cannot be
executed. The agreement to sale could not
be proved in accordance with Section 45 of
the Evidence Act 1872. The evidence of the
P.W.2 has wrongly and illegally been
considered by the courts below.

9. On the basis of above, learned
counsel for the appellants submitted that
the judgments and decree passed by the
courts below are not sustainable in the eyes
of law, which are liable to be set aside and
the appeal is liable to be allowed on the
substantial questions of law formulated by
this court. Learned counsel for the
appellants relied on Jagdish Prasad Patel
(dead) through Legal representatives
and another Versus Shivnath and others;
(2019) 6 SCC 82, U.N.Krishnamurthy
(since Deceased) through LRs Versus
A.M.Krishnamurthy; 2022 (40) LCD
2445, Smt. Ram Rati and others Versus
Gram Samaj, Jehwa and others; AIR
1974 Allahabad 106 Full Bench and Smt.
Ram Dei Versus Joint Director of
Consolidation and others; 2020 (38) LCD
1455.

10. Per contra, learned counsel for
the plaintiff-respondents submitted that the
defendant no.1 had entered into an
agreement with the plaintiff-respondents
for agreement to sale of the land in dispute
and after receiving Rs. 6000/-, she had
handed over the possession and the sale
deed was to be executed after getting
Bhumidhari rights because the land was
sirdari land at that time. The plaintiffrespondent approached the defendant no.1
with Rs.2000/- for execution of sale deed,
then she told that she has executed the sale
deed of land in dispute in favour of
defendants no. 2 to 5 i.e. the present
appellants,
therefore
the
plaintiffrespondent had to file the suit. The
plaintiff-respondent proved the agreement
by cogent evidence and he was always
ready and willing to comply his part but the
defendant no.1 has not complied. The
defendant no.1 had not appeared in
evidence to prove that the agreement to sale
was not executed by her and her thumb
impressions are not on the agreement,
whereas one attesting witness of the
agreement to sale and writer of agreement
were produced to prove the agreement to
sale and nothing could be extracted by the
defendant-appellants from them, which
may create any doubt about the veracity of
their evidence. She could also have applied
for expert opinion to prove that her
signatures are not on agreement but it was
not done. In view of Section 101 of the
Evidence Act, 1872 burden of proof that
the agreement to sale was not executed by
Smt. Ram Sanehi was on her as she was
alleging that she has not signed or put
thumb impression on it because it was
proved that the agreement to sale was
executed by her. He further submitted that
the thumb impression on agreement to sale
is clear but no verification of thumb
impression was made on the written
statement and as per findings recorded by
the courts below the thumb impression on
the 'Vakalatnama' was also blurred, so that
it may not be verified. He further submitted
that the application under Order 41 Rule 27
of Civil Procedure Code has rightly and in
accordance with law been rejected by the
First Appellate Court. There is no illegality
or infirmity in it. He further submitted that
the objection filed under Section 9 A of the
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
Consolidation of Holdings Act, 1953 by the
Consolidation Officer was stayed in appeal,
which is still operative. The sale deed was
executed without seeking permission from
the consolidation authorities, therefore the
suit itself was barred under Section 5(c) of
the U.P. Consolidation of Holdings Act,
1953 and it was liable to be dismissed on
this ground alone. Lastly learned counsel
for the respondents submitted that the
concurrent findings of facts recorded by the
courts below cannot be interfered by this
court in Second Appeal as there is no
illegality, infirmity or perversity in the
same as the findings have been recorded on
the basis of the pleadings, material and
evidence on record.

11. On the basis of above, learned
counsel for the respondents submitted that
the judgments and decree passed by the
courts
below
have
been
passed
in
accordance with law and no substantial
question of law arises in this appeal. The
appeal has been filed on misconceived and
baseless grounds and it is liable to be
dismissed with cost. Learned counsel for
the respondents relied on Daulat Ram and
others Versus Sodha and others; AIR
2005 Supreme Court 233, Robins Versus
National Trust Company, Limited, and
others; A.C. and Privy Council 515 and
Narendra Bahadur Singh and others
Versus Ram Manorath Singh and others;
2023 (41) LCD 2023.

12.

I
have
considered
the
submissions of learned counsel for the
parties and perused the records.

13.

The
Suit
for
specific
performance and damages was filed by the
predecessor-in-interest of the plaintiffrespondents alleging therein that Smt. Ram
Sanehi; the defendant no.1 was intending to
sale her property, therefore, she had entered
into an agreement to sale for Rs. 8000/- and
after receiving Rs. 6000/-, the possession
was handed over to him. The agreement to
sale was executed on 28.05.1976. At the
time of execution of agreement, Late Smt.
Ram Sanehi was Sirdar of the land in
dispute and the land in dispute was under
consolidation operation and the agreement
was executed to execute the sale deed by
permission from the Consolidation Officer
after payment of the remaining amount of
Rs.2000/-. In pursuance thereof after
receiving Rs.6000/- the possession was
handed over to the plaintiff-respondents. In
the 1st week of August 1976 the plaintiffrespondent went to Late Smt. Ram Sanehi
with Rs.2000/- for payment and execution
of sale deed. Then the defendant no.1 told
that she has already sold the land in dispute
to the defendants no.2 to 5 i.e. the
appellants. It was further alleged that the
plaintiff-respondent was and is always
ready and willing to pay the remaining
Rs.2000/- and get the sale deed executed.
The written statement was filed by the
defendant no.1; Late Smt. Ram Sanehi
denying the averments made in the plaint
and stating that she has not made any
signatures or put her thumb impression
either on the agreement or on any plain
paper. The plea was also taken that even if
the signature or thumb impression is tried
to be proved, even then no agreement has
taken
place
between
the
plaintiffrespondent
and
the
defendant
no.1,
therefore the same is totally forged and the
plaintiff-respondent would not get any
benefit out of it. The written statement was
filed on 27.08.1979. A separate written
statement was filed by the defendants no.2
to 5 i.e. the appellants denying the
averments made in the plaint and stating
that after deposit of 20 times land revenue
the defendant no.1 has acquired the
7 All. Chandra Bhan Vs. Aditya Prasad
1293
Bhumidhari rights and she has executed a
sale deed in their favour on 24.06.1976 for
a consideration of Rs.9000/- and has also
handed over the possession. They have also
denied that any agreement to sale was made
by the defendant no.1 in favour of plaintiffrespondent.

14. Thereafter the evidence was
adduced by the parties, in which the
plaintiff-respondent had appeared as P.W.1
and the witness and writer of the agreement
to sale as P.W.2 and P.W.3. They proved the
agreement to sale and as to how it was
executed. They deposed that the agreement
was read over and explained to defendant
no.1; Late Smt. Ram Sanehi and thereafter
she put her thumb impression on the
agreement. Thereafter witnesses Hans Raj
and Shiv Prasad had put their thumb
impression/signature. Hans Raj, who had
appeared
as
P.W.2
had
proved
the
agreement to sale. Raj Bahadur the writer
of the agreement to sale had appeared as
P.W.3 and proved that it is the same
agreement to sale, which was written by
him. The writer P.W.3 has also stated that
he had put his signature on the agreement.
Thus the agreement was proved by the
plaintiff-respondent by adducing cogent
evidence.

15.

The
defendant-appellants
though took a plea that no agreement to
sale was executed by the defendant no.1 in
favour of predecessor-in-interest of the
plaintiff-respondents but the defendant
no.1, who could have proved that the
agreement to sale was not executed by her
had not appeared in the witness box,
whereas as per Section 101 of the Evidence
Act, the burden was on the defendant no.1
to prove that the agreement was not
executed by her because it was asserted by
the defendant-appellants. The learned Trial
court, after considering the pleadings of the
parties and considering the evidence
adduced before it, while deciding the issue
no.5 as to whether the defendant no.1 has
not put her thumb impression on the
agreement to sale as asserted by her in
paragraph 17 of her written statement, has
recorded that the agreement to sale was put
in sealed cover on the date of filing of the
suit on 22.05.1979. The written statement
was filed on 28.08.1979, though a copy
was on record but the defendant no.1 has
not made endorsement not admitted on the
agreement or its copy, as such the same
stands admitted. Learned trial court has
also found that the defendant No.1 has
stated that she has neither signed nor put
thumb impression on the agreement to sale
or any plain paper without going through
the original agreement to sale, therefore she
was determined to deny the execution of
agreement to sale in any case. Even
otherwise if she was illiterate and does not
sign then the question of stating that she
has not signed or put thumb impression
would not have been mentioned, when the
photocopy was also on record. The learned
trial court also found that the thumb impression
of the defendant no.1 on the agreement to sale is
clear, whereas on the written statement and the
Vakalatnama it is blurred and it has also not been
identified by any counsel. Learned Trial court
also recorded a finding that the defendant no.1
was the best witness to prove that the agreement
to sale was not executed by her but she had not
appeared in the witness box to record her
evidence on oath. Thus the thumb impression on
the agreement to sale is of the defendant no.1.
The Privy Council, in the case of Robins Versus
National Trust Company Limited and others
(Supra), has held that onus is always on the
person who attacks the will.

16. The learned Trial Court, while
considering the issue no.1 as to whether the
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
defendant no.1 has executed the agreement
to sale after receiving Rs.6000/- as advance
and has also handed over the possession to
plaintiff-respondent, after considering the
evidence and material on record has
recoded the findings that P.W.1, P.W.2 and
P.W.3 have proved the agreement to sale in
accordance with law. The D.W.2 Govind
though had stated about the possession of
Raj Bahadur but he does not know as to
whether he has given any evidence in the
case of Ram Abhilakh Versus Hridai Ram
or not. D.W.3 Ram Abhilakh has stated that
he has not seen the possession of Aditya
Prakash this time, but for any time, he can
say nothing. He also could not tell the area
of the land in dispute. He also could not tell
the plots adjacent to the land in dispute.
The plaintiff-respondent produced certain
documents to prove their possession. On
the contrary, the defendant-appellants had
not filed any document to show their
possession. Thus the issue no.1 was also
decided
in
favour
of
the
plaintiffrespondent. Accordingly the issue no.2 was
decided. This court does not find any
illegality or infirmity in the aforesaid
findings recorded in regard to the aforesaid
issues on the basis of evidence and material
on record.

17. The plea of illiterate and infirm
village lady was not taken by the defendant
no.1 either in her written statement or in the
First Appeal filed by her along with the
defendant-appellants, therefore, it cannot
be said that the burden to prove that the
transaction with the illiterate and infirm
village lady was made fairly, consciously
and with independent advise of the lady or
not was on the plaintiff-respondent, rather
in view of Section 101 of Indian Evidence
Act, the burden to prove that the agreement
was not made by her was on her because
this plea was taken by her and the plaintiffrespondent has proved that the agreement
was made by her by adducing cogent and
convincing evidence. Since the plea of
infirm and village lady was not taken by
the defendant no.1 in her written statement
or in the appeal filed by her, therefore this
plea is not available to the defendantappellants. Even otherwise it was not the
case also. Therefore this court is of the
view that the courts below have rightly and
in accordance with law decreed the suit and
dismissed the appeal. Thus the first
substantial question of law does not arise in
this appeal.

18. The defendant no.1 Smt. Ram
Sanehi had not appeared in the witness box
and after the judgment and decree was
passed by the trial court, she filed first
appeal and at the appellate stage she moved
an application for her examination or for
remanding the case for fresh decision after
taking her evidence on the ground that she
was not examined before the court, which
has been criticized by the learned Munsif.
It was further alleged that the appellants
had been ill advised by their counsel and
their failure to appear in the witness box
was for the said reason. The learned first
appellate court dismissed the application by
means of the order dated 12.08.1983
holding that the ill advice of the counsel
would not be a valid ground for taking the
additional evidence and if she preferred to
withheld herself from swearing the oath it
cannot be said that it has not been produced
with due diligence. It has also been
recorded that the counsel for the defendantappellants admitted that it cannot be a
ground for remand.

19. Order 41 Rule 27 of Civil
Procedure Code (here-in-after referred as
CPC) provides for production of additional
evidence in appellate court in three
7 All. Chandra Bhan Vs. Aditya Prasad
1295
contingencies. First of which is that the
court from whose decree the appeal is
preferred has refused to admit evidence
which ought to have been admitted. The
second is that the party seeking to produce
additional
evidence,
establishes
that
notwithstanding
the
exercise
of
due
diligence, such evidence was not within his
knowledge or could not, after the exercise
of due diligence, be produced by him at the
time when the decree appealed against was
passed. The third is that the appellate court
requires any document to be produced or
any witness to be examined to enable it to
pronounce judgment, or for any other
substantial
cause.
The
first
two
contingencies are not attracted at all in this
case. So far as the third contingency is
concerned, the appellate court can pass
such order if it requires that it is necessary
to enable it to pronounce the judgment or
for any other substantial cause but this
power can not be exercised to fill up the
lacuna, if any. In this case since the
agreement to sale was proved by adducing
the cogent evidence before the trial court,
therefore this court is of the view that there
was no occasion for the first appellate court
to pass any such order. In view of above
this court does not find any illegality or
error in rejection of the application by the
learned first appellate court. However it
does not preclude the court from drawing
adverse inference to strengthen the view
taken by it on the basis of pleadings,
evidence and material on record. Thus the
second substantial question of law is
decided accordingly.

20. The appellants have filed an
application bearing IA No.9 of 2022 under
Order 41 Rule 27 CPC before this court for
bringing on record certain documents as
permitted by this court by means of
judgment and order dated 23.09.2021
passed in Review Petition No. 264 of 2003;
Chandra Bhan Major and 4 others (Second
Appeal No. 224 of 1986) Versus Aditya
Prakash, which was filed for review of the
judgment and order dated 14.08.2003
passed by this court in this Second Appeal,
by means of which the appeal was
dismissed
without
formulating
the
substantial questions of law after admission
of appeal. The application has been filed
for taking on record the certified copy of
Registered Sale deed dated 24.05.1976, a
copy of the judgment and order dated
04.05.2006 passed by the Consolidation
Officer, Bikapur, Faizabad, photocopies of
Khatauni and Khasra of the plots in dispute
and report of finger print expert sought by
the defendant-appellants from Mr. D. K.
Patel at Ahmadabad. So far as the certified
copy of the sale deed dated 24.05.1976 is
concerned it could have been filed earlier.
The order passed by the Consolidation
Officer dated 04.05.2006 does not decide
the title and it has been passed on account
of pendency of this appeal and as argued it
has been stayed in appeal and stay is still
operating. Khasra and Khatauni of the land
in question could have been filed by the
defendants-appellants earlier also. Even
otherwise the order dated 04.05.2006
passed by the Consolidation Officer has no
material bearing on the present case as the
same has been passed in consolidation
proceedings only on the ground that the
judgment and decree passed by the trial
court has not been executed because the
plaintiff-respondents have failed to show
the payment of the remaining amount of
Rs.2000/- within the time granted by the
trial court and execution of sale deed
thereafter because the appeal is pending. So
far as the report of the finger print expert
obtained by the defendant-appellants is
concerned, the same has been given on the
basis of the zerox copies and it is only
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
provisional and subject to verification of
original documents. Even otherwise it
cannot be said that the thumb impression
on the sale deed made in favour of the
defendant-appellants
are
the
admitted
thumb impression of Smt. Ram Sanehi; the
defendant no.1 because the plaintiffrespondent has only averred in the plaint
that the sale deed was executed by her as
informed by her, when the plaintiffrespondent
approached
her
with
the
remaining
amount
of
Rs.2000/-
for
execution of sale deed. This court is of the
view that the application moved under
Order 41 Rule 27 CPC before this court is
misconceived and baseless and liable to be
rejected only.

21. The Hon'ble Supreme Court,
in the case of Jagdish Prasad Patel (dead)
through
Legal
Representatives
and
another Versus Shivnath and others
(Supra) has summarized the principles for
taking additional evidence on record under
Order 41 Rule 27 CPC and held that the
provisions does not apply, when on the
basis of the evidence on record, the
appellate court can pronounce a satisfactory
judgment and the matter is entirely within
the discretion of the court and it is to be
used sparingly. The relevant paragraphs 29
and 30 are extracted here-in-below:-

"29. Under Order
41
Rule
27
CPC,
production of additional
evidence, whether oral or
documentary, is permitted
only
under
three
circumstances which are:
(I) where the trial
court had refused to admit
the evidence though it
ought
to
have
been
admitted;
(II) the evidence
was not available to the
party despite exercise of
due diligence; and
(III) the appellate
court
required
the
additional evidence so as to
enable it to pronounce
judgment or for any other
substantial cause of like
nature.
An application for
production of additional
evidence cannot be allowed
if the appellant was not
diligent in producing the
relevant documents in the
lower court. However, in
the interest of justice and
when satisfactory reasons
are given, the court can
receive
additional
documents.
30.
In
Union of India v.
Ibrahim
Uddin
[Union of India v.
Ibrahim
Uddin,
(2012) 8 SCC 148 :
(2012) 4 SCC (Civ)
362] , this Court
held as under :
(SCC pp. 167-68 &
170, paras 36-37,
40 & 47)
"36. The general
principle
is
that
the
appellate court should not
travel outside the record of
the lower court and cannot
take
any
evidence
in
appeal. However, as an
exception, Order 41 Rule
27
CPC
enables
the
appellate court to take
7 All. Chandra Bhan Vs. Aditya Prasad
1297
additional
evidence
in
exceptional circumstances.
The appellate court may
permit additional evidence
only
and
only
if
the
conditions laid down in this
Rule are found to exist. The
parties are not entitled, as
of right, to the admission of
such evidence. Thus, the
provision does not apply,
when on the basis of the
evidence on record, the
appellate
court
can
pronounce a satisfactory
judgment. The matter is
entirely
within
the
discretion of the court and
is to be used sparingly.
Such a discretion is only a
judicial
discretion
circumscribed
by
the
limitation specified in the
Rule
itself.
(Vide
K.
Venkataramiah
v.
A.
Seetharama
Reddy
[K.
Venkataramiah
v.
A.
Seetharama Reddy, AIR
1963 SC 1526] , Municipal
Corpn., Greater Bombay v.
Lala Pancham [Municipal
Corpn., Greater Bombay v.
Lala Pancham, AIR 1965
SC 1008] , Soonda Ram v.
Rameshwarlal
[Soonda
Ram
v.
Rameshwarlal,
(1975) 3 SCC 698] and
Syed Abdul Khader v.
Rami Reddy [Syed Abdul
Khader v. Rami Reddy,
(1979) 2 SCC 601] .)
37. The appellate
court should not ordinarily
allow new evidence to be
adduced in order to enable
a party to raise a new point
in appeal. Similarly, where
a party on whom the onus
of proving a certain point
lies fails to discharge the
onus, he is not entitled to a
fresh
opportunity
to
produce evidence, as the
court can, in such a case,
pronounce
judgment
against him and does not
require
any
additional
evidence to enable it to
pronounce judgment. (Vide
Haji Mohammed Ishaq v.
Mohd. Iqbal and Mohd. Ali
& Co. [Haji Mohammed
Ishaq v. Mohd. Iqbal and
Mohd. Ali & Co., (1978) 2
SCC 493] .)
***
40.
The
inadvertence of the party or
his inability to understand
the legal issues involved or
the wrong advice of a
pleader or the negligence of
a pleader or that the party
did
not
realise
the
importance of a document
does
not
constitute
a
"substantial cause" within
the meaning of this Rule.
The mere fact that certain
evidence is important, is
not in itself a sufficient
ground for admitting that
evidence in appeal.
***
47.
Where
the
additional evidence sought
to be adduced removes the
cloud of doubt over the
case and the evidence has a
direct
and
important
1298 INDIAN LAW REPORTS ALLAHABAD SERIES
bearing on the main issue
in the suit and interest of
justice clearly renders it
imperative that it may be
allowed to be permitted on
record,
such
application
may be allowed."

22.

The
trial
court,
while
considering the issue no.3 as to whether the
sale deed is against the Consolidation Act
and illegal has held that since it was
executed during consolidation proceedings,
therefore in view of Section 5(1)(C) (II) of
the U. P. Consolidation of Holdings Act,
1953 read with Section 45(A) (2) it is
illegal and non effective. The issue no.4, as
to whether the agreement to sale is illegal
and forged has been decided in negative
and the issue no.5 that the suit is liable to
be decreed. The appellate court also
considering the pleadings of the parties,
evidence and the grounds raised in the
appeal held that the agreement was
executed by the defendant no.1 in favour of
the Plaintiff-respondents in respect of land
in question and also upheld the findings
recorded by the trial court in accordance
with law. This court does not find any
illegality or infirmity in the findings
recorded by the courts below.

23. The Full Bench of this court, in
the case of Smt.Ram Rati and others
Versus Gram Samaj, Jehwa and others
(Supra) has held that the provisions of
Section 5(1)(c) (ii) could apply to transfer
of part of holdings only, but no such plea
has been taken in the present case,
therefore it is not applicable.

24. The Hon'ble Supreme Court,
in the case of U.N. Krishnamurthy (Since
deceased)
through
LRs
Versus
A.M.Krishnamurthy (Supra), has held
that it is settled law that for relief of
specific performance, the plaintiff has to
prove that all along and till the final
decision of the suit, he was ready and
willing to perform his part of the contract.
In the present case the plaintiff-respondents
have proved their readiness and willingness
of performance on their part and get the
sale deed executed, till now.

25. A Co-ordinate Bench of this
court, in the case of Smt. Ram Dei Venus
Joint Director of Consolidation and
others
(Supra),
has
considered
the
comparison of thumb impression made by
the court but it is not applicable in the facts
and circumstances of the present case
because it is not the case herein.

26. The Hon'ble Supreme Court,
in the case of Daulat Ram and others
Versus Sodha and others (Supra), has
held that the document has to be proved by
primary evidence except where court finds
that the document is to be proved by
leading the secondary evidence.

27. It is settled law that the
concurrent findings of facts recorded by the
two courts below cannot be interfered
unless the findings are without jurisdiction,
perverse or against the evidence and record.
A Co-ordinate Bench of this Court, after
considering several judgments of the
Hon'ble Supreme Court in the case of
Suryakunwari versus Nanhu and Others
2019 (37) LCD 2346, has held that the
concurrent findings of fact recorded by the
two courts are not liable to be set aside
unless and until the findings are perverse.
The relevant paragraphs 11 to 16 are
extracted here-in-below:-

"11. In this case, there are
concurrent findings on facts by
7 All. Chandra Bhan Vs. Aditya Prasad
1299
both the courts below. The Hon'ble
Apex Court in catena of judgments
has laid down the law that the
concurrent findings of fact recorded
by two courts below should not be
interfered by the High Court in
Second Appeal, unless and until the
findings are perverse.
12. In a recent case of
Shivah
Balram
Haibatti
Vs.
Avinash Maruthi Pawar (2018)11
SCC 652 the Apex Court has held
as under:-
"...... These findings being
concurrent findings of fact were
binding on the High Court and,
therefore, the second appeal should
have been dismissed in limine as
involving no substantial question of
law."
13. In another recent case
of Narendra and others Vs. Ajabrao
S/o Narayan Katare (dead) through
legal representatives, (2018) 11
SCC 564 the Hon'ble Apex Court
held as under:-
"...interference in second
appeal with finding of fact is
permissible where such finding is
found to be wholly perverse to the
extent that no judicial person could
ever record such finding or where
that finding is found to be against
any settled principle of law or
pleadings or evidence. Such errors
constitute
a
question
of
law
permitting interference in Second
Appeal."
14. In one more
recent case Dalip Singh Vs.
Bhupinder Kaur, (2018) 3
SCC 677 the Hon'ble Apex
Court has held that if there
is
no
perversity
in
concurrent findings of fact,
interference by the High
Court in Second Appeal is
not permissible.
15.
In
Gautam
Sarup v. Leela Jetly and
Ors. [(2008) 7 SCC 85],
the Apex Court held that a
party is entitled to take an
alternative
plea.
Such
alternative pleas, however,
cannot
be
mutually
destructive of each other.
16. In State Bank of
India and others Vs. S.N.
Goyal; (2008) 8 SCC 92
the Hon'ble Supreme Court
has held as under :-
"Second
appeals
would lie in cases which
involve
substantial
questions of law. The word
'substantial'
prefixed
to
'question of law' does not
refer to the stakes involved
in the case, nor intended to
refer only to questions of
law of general importance,
but refers to impact or
effect of the question of law
on the decision in the lis
between
the
parties.
'Substantial questions of
law'
means
not
only
substantial questions of law
of general importance, but
also substantial question of
law arising in a case as
between the parties. In the
context
of
section
100
CPC, any question of law
which affects
the
final
decision in a case is a
substantial question of law
as between the parties. A
question
of
law
which
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
arises
incidentally
or
collaterally,
having
no
bearing
in
the
final
outcome, will not be a
substantial question of law.
Where there is a clear and
settled enunciation on a
question of law, by this
Court or by the High Court
concerned, it cannot be
said that the case involves
a substantial question of
law."

28. One of the contention of
learned counsel for the appellants in this
appeal is that since the defendant no.1;
Smt. Ram Sanehi who has not received the
remaining
amount
of
Rs.2000/-
and
executed the sale deed has died and no
legal representative has been brought on
record as she had no legal representative,
therefore, the judgment and decree passed
by the courts below is not executable. This
court is of the view that the contention of
learned for the appellants is misconceived
and not tenable because the judgment and
decree passed by the competent court of
law cannot be frustrated merely by death of
a person. Even otherwise the trial court has
passed an order that if the defendant no.1
does not execute the sale deed, the plaintiffrespondent can get it done from the court
on the expenses of defendants, therefore the
appellants can deposit the remaining
amount with the court concerned, who may
pay to the claimant, if any, as and when
comes forward on behalf of the defendant
no.1 and the court can execute the sale
deed.

29.