# Mohd. Ahmad v. Karamat Hussain & Ors

- **Citation:** (2016) 5 ILRA 1045
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-31
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ahmad-v-karamat-hussain-ors-43722
- **Pages:** 8

## Headnote

Civil Law-Second Appeal- Specific performance of contract - Registered agreement to sell dated
3.10.1980 - Advance consideration - Readiness and willingness - Specific averment in plaint - No specific
denial in written statement - Non denial amounts to admission - Order VIII Rules 3, 4 and 5 CPC - Framing
of issues - Order XIV Rule 1 CPC - Non-framing of issue - No prejudice - Parties went to trial knowing
fully well the real issues involved - Evidence adduced - Concurrent findings of fact - Proper appreciation of
evidence - Order XLI Rule 2 CPC - Ground not taken in memorandum of first appeal - Estopped from
raising - No perversity - Second appeal - Appeal dismissed.

Original Suit No. 993/1985 (Mohd. Aslam v. Karamat Hussain & others) was filed by sole plaintiff Mohd.
Ahmad with averment that he is owner in possession of disputed property of plot no. 234/1 of village Maheva
Patti, Uparhar. Defendants have no right, title or interest in this property. They are expressing that plaintiff
had done any agreement to sell in the year 1980 in favour of defendant no.-1 for sale of this property and
they are trying to interfere in possession of plaintiff over it, therefore the plaintiff had filed suit against
defendants from restraining them from interfering in possession of plaintiff's property.(Para 2)

At the time of admission of the present second appeal, by order dated 24.02.2003 of this court, following
substantial questions of law framed in the memorandum of second appeal were adopted for decision of this
appeal:(1) Whether suit for specific relief could be decreed without framing of issue and proving readiness
and willingness on part of plaintiff to perform their part of contract throughout since the date of
agreement.(2) Whether finding of court below on the point of payment of sale consideration is perverse in
view of non considerations of oral deposition of plaintiff's witness Mohd. Naseem and Defendant's oral
evidence.(Para 9)

Held:(Paras-14,26-28)
1046 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

5 All. Mohd. Ahmad Vs Karamat Hussain & Ors.

1045
(c) In case of default in compliance with either of the conditions mentioned
above, the tenants - petitioners shall be evicted after six weeks from today, through process of
Court.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 33 Of 2003

Mohd. Ahmad ...Appellant
Versus
Karamat Hussain & Ors. ...Respondents

Counsel for the Appellant:
Vishnu Gupta, Birendra Singh.

Counsel for the Respondents:
S.K. Garg, A.K. Rai, A.N. Mishra, Manish Kumar Nigam, Namit Srivastava, Ravi Kiran Jain, S.F.A. Naqvi, S.K.
Mishra, S.N. Singh, Shiv Sagar Singh, Tarun Agrawal, V.C. Dixit, Vishnu Kumar Singh.

Civil Law-Second Appeal- Specific performance of contract - Registered agreement to sell dated
3.10.1980 - Advance consideration - Readiness and willingness - Specific averment in plaint - No specific
denial in written statement - Non denial amounts to admission - Order VIII Rules 3, 4 and 5 CPC - Framing
of issues - Order XIV Rule 1 CPC - Non-framing of issue - No prejudice - Parties went to trial knowing
fully well the real issues involved - Evidence adduced - Concurrent findings of fact - Proper appreciation of
evidence - Order XLI Rule 2 CPC - Ground not taken in memorandum of first appeal - Estopped from
raising - No perversity - Second appeal - Appeal dismissed.

Original Suit No. 993/1985 (Mohd. Aslam v. Karamat Hussain & others) was filed by sole plaintiff Mohd.
Ahmad with averment that he is owner in possession of disputed property of plot no. 234/1 of village Maheva
Patti, Uparhar. Defendants have no right, title or interest in this property. They are expressing that plaintiff
had done any agreement to sell in the year 1980 in favour of defendant no.-1 for sale of this property and
they are trying to interfere in possession of plaintiff over it, therefore the plaintiff had filed suit against
defendants from restraining them from interfering in possession of plaintiff's property.(Para 2)

At the time of admission of the present second appeal, by order dated 24.02.2003 of this court, following
substantial questions of law framed in the memorandum of second appeal were adopted for decision of this
appeal:(1) Whether suit for specific relief could be decreed without framing of issue and proving readiness
and willingness on part of plaintiff to perform their part of contract throughout since the date of
agreement.(2) Whether finding of court below on the point of payment of sale consideration is perverse in
view of non considerations of oral deposition of plaintiff's witness Mohd. Naseem and Defendant's oral
evidence.(Para 9)

Held:(Paras-14,26-28)
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
1. In present matter neither the plaint case on readiness and willingness of plaintiff to perform his part of
contract for sale in question was denied nor in additional pleas of written-statement any such pea was taken.
Thus evasive denial in form of denying all paragraph of plaint, including the admitted facts also, is not the
specific denial. Such evasive non admission of specific plaint case amounts to admission. It appears that for
this reason when nine issues were being framed then at that time trial court had opted not to frame issue on
admitted point, which was not specifically denied, nor specifically required the respondent to prove this fact,
although it was proved from evidences.

2. The only question to be determined in this matter at present is as to whether the appellant had executed
registered deed of contract for sale of his disputed property in favour of respondent after receiving advance
consideration, or not. This was not a question of law but was a question of fact that could be decided on the
basis of adduced evidences, as has been done by the lower courts. There is no infirmity or perversity in
findings of lower courts that may require interference in it by re-appreciation of evidence. Therefore, in view
of aforesaid discussions, the second substantial question of law as above, is decided in negative, against the
appellant and in favour of respondents.Appeal is dismissed.

Case Law discussed:

Swamy Atma Nanda v. Sri Rama Krishna Tapovanam, (2005) 10 SCC 51 - Para 20

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. This appeal has been preferred against the judgment dated 18.11.2002 passed by
Additional District Judge, Court No. 8, Allahabad in Civil Appeal No. 124/1994 (Mohd. Ahmad v.
Karamat Hussain & others).

2. Original Suit No. 993/1985 (Mohd. Aslam v. Karamat Hussain & others) was filed by
sole plaintiff Mohd. Ahmad with averment that he is owner in possession of disputed property of
plot no. 234/1 of village Maheva Patti, Uparhar. Defendants have no right, title or interest in this
property. They are expressing that plaintiff had done any agreement to sell in the year 1980 in
favour of defendant no.-1 for sale of this property and they are trying to interfere in possession of
plaintiff over it, therefore the plaintiff had filed suit against defendants from restraining them from
interfering in possession of plaintiff's property.

3. In their written-statement filed in O.S. no. 993/1985, defendants pleaded that plaintiff
had executed a registered agreement to sell dated 3.10.1980 for sale of his property and received
Rs. 20,000/- as advance consideration, but when he has not executed sale-deed in terms of said
contract for sale then defendants had given him notice for specific performance of contract.
Plaintiffs had been ready and willing to perform their part of contract dated 3,.10.1980, but
defendant had not executed sale-deed and filed suit on incorrect facts. Then plaintiff's suit is liable
to be dismissed.

4. In another Suit no. 491/1985 (Smt. Salaha Begum v. Mohd Ahmad) was filed by three
plaintiffs (who were defendants no. 1, 2 and 3 of O.S. no. 993/1985) for specific performance of
contract for sale dated 3.10.1980/15.10.1980. In this plaint their pleading was same as their written-
5 All. Mohd. Ahmad Vs Karamat Hussain & Ors.

1047
statement case in O.S. no. 993/1985. They pleaded that defendant Mohd. Ahmad had received
advance consideration and executed registered agreement to sell for his property, but had not
executed sale-deed, then after serving him notice for specific performance, they had filed suit for
specific performance. They are and had been ready and willing to perform their part of contract.

5. In written statement of O.S. No 491/1985, the defendants Mohd. Ahmad had filed
written statement denying any execution of registered agreement to sell. He further pleaded that
defendant is ailing for some time and if plaintiffs of O.S. no. 491/1985 had get executed any deed
from him or got signed any document then it is not binding on him. Plaintiff suit is liable to be
dismissed.

6. Since the disputed property in both the original suits no. 993/1985 and 491/1985 was
same and contesting parties were also the same, therefore both these suits were consolidated. Trial
Court had framed total 9 issues (4 issues for O.S. no. 993/1985 and, 5 issues for O.S. no. 491/1985)
and accepted evidences of the parties then after affording opportunity of hearing to the parties, the
court of Vth Additional Munsiff, Allahabad had dismissed the O.S. no. 993/1985, Mohd Ahmad v.
Smt. Salaha Begum & others. By the same judgment, the trial court had decreed the O.S. no.
491/1985, Sma. Salaha Begum v. Mohd Ahmad instituted for relief of specific performance of
contract and directed the defendant of this suit Mohd. Ahmad (present appellant) to execute
registered sale-deed of disputed property in favour of plaintiff of O.S. no. 491/1985 and also gave
direction that if due to any reason cause of action of sale-deed becomes not possible then plaintiffs
of this suit will be entitled to receive back the advance consideration of Rs. 20,000/- with
compound interest at the rate of 17%.

7. Plaintiff of the Original Suit no. 993/1985 and defendants of Original Suit no. 491/1985,
Mohd. Ahmad had filed two Civil Appeals against the judgment dated 25.3.1994 passed by trial
Court in aforesaid suits. Civil Appeal No. 123/1994 (Mohd. Ahmad v. Karamat Hussain & others)
was filed against judgment of dismissal of OS No. 993/1985. Civil Appeal no. 124/1994 (Mohd.
Ahmad v. Karamat Hussain & others) was preferred against the decree of O.S. no. 491/1985. These
two appeals relating to same property and same dispute between same parties were consolidated
and heard together. After affording opportunity of hearing to parties, Additional District Judge,
Court No.-8, Allahabad had decided both the appeals by common judgment dated 18.11.2002. By
this judgment, lower appellate court had partly allowed the Civil Appeal no. 123/1994 (preferred
against judgment of O.S. No. 993/1985) for the relief of permanent injunction and directed the
defendant-respondents of this case not to interfere in possession of appellant Mohd. Ahmad until
the respondents take possession of disputed property after getting sale-deed of it executed in their
favour. By this judgment lower appellate court had dismissed the Civil Appeal No. 124/1994.

8. Present Second Appeal has been preferred by Mohd. Ahmad, appellant in first appeal
(defendant in O.S. no. 491/1985) against the judgment dated 18.11.2002 passed by first appellate
court only in Civil Appeal no. 124/1994 and the judgment of the trial court passed in O.S. no.
491/1985.
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
9. At the time of admission of the present second appeal, by order dated 24.02.2003 of this
court, following substantial questions of law framed in the memorandum of second appeal were
adopted for decision of this appeal:

"(1) Whether suit for specific relief could be decreed without framing of issue
and proving readiness and willingness on part of plaintiff to perform their part of contract
throughout since the date of agreement.

(2) Whether finding of court below on the point of payment of sale
consideration is perverse in view of non considerations of oral deposition of plaintiff's witness
Mohd. Naseem and Defendant's oral evidence."

10. On first question the learned counsel for the appellant contended that in suit for the
specific performance of contract the plaintiff must prove that he had been ready and willing to
perform his part of contract, but matter was decided by the lower courts without framing any issue
on this specific point, therefore the judgment of two lower courts are erroneous and are liable to be
set aside.

11. Refuting these contentions learned counsel for the respondent submitted that this point
was admitted and not denied or disputed, so there was no need to frame issue on non disputed
points. He further contended that no prejudice was caused to defendant-appellant due to non
framing of issue on this point.

12. In plaint there has been specific averment that plaintiff is and has been ready and
willing to perform his part of contract. This fact was not contested in written-statement. In fact this
plaint averment was not specifically denied in the written-statement. Such non denial of plaint
averment amounts to admission of plaint case.

13. Rules 3, 4, and 5 of Order VIII CPC are as under:

"3. Denial to be specific-- It shall not be sufficient for a defendant in his written
statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal
specifically with each allegation of fact of which he does not admit the truth, except damages.

4. Evasive denial-- Where a defendant denies an allegation of fact in the plaint, he
must not do so evasively, but answer the point of substance.

5. Specific denial--(1)] Every allegation of fact in the plaint, if not denied
specifically or by necessary implication, or stated to be not admitted in the pleading of the
defendant, shall be taken to be admitted except as against a person under disability :

Provided that the Court may in it discretion require any fact so admitted to be
proved otherwise than by such admission."
5 All. Mohd. Ahmad Vs Karamat Hussain & Ors.

1049
14. In present matter neither the plaint case on readiness and willingness of plaintiff to
perform his part of contract for sale in question was denied nor in additional pleas of writtenstatement any such pea was taken. Thus evasive denial in form of denying all paragraph of plaint,
including the admitted facts also, is not the specific denial. Such evasive non admission of specific
plaint case amounts to admission. It appears that for this reason when nine issues were being
framed then at that time trial court had opted not to frame issue on admitted point, which was not
specifically denied, nor specifically required the respondent to prove this fact, although it was
proved from evidences. The relevant provisions of Rule 1 of Order XIV CPC are as under:

"1. Framing of issues-- (1) Issues arise when a material proposition of fact or law
is affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff
must allege in order to show a right to sue or a defendant must allege in order to constitute his
defence."

15. In present case plaintiff-respondent had specifically in paragraph-5 of the plaint of O.S.
no. 491/1985 that plaintiff "had been and are still ready and willing to get the sale-deed executed
and are also ready and willing to perform all those acts which the have to perform." In absence of
any specific denial in present case, the trial court was not required to frame specific issue on this
point.

16. It is also pertinent to mention that in the memorandum of first appeal filed against the
judgment of trial court, the appellants had no where had taken the ground that such issue was not
framed. It appears that this plea was raised for the first time in present second appeal.

17. The provisions of Order 41 Rule 2 CPC reads as under:-

"2. Grounds which may be taken in appeal.- The appellant shall not, except by
leave of the Court, urge or be heard in support of any ground of objection not set forth in the
memorandum of appeal, but the Appellate Court, in deciding the appeal, shall not be confined to
the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court
under this rule:

Provided that the Court shall not rest its decision on any other ground unless the
party who may be affected thereby has had a sufficient opportunity of contesting the case on that
ground."

18. Since this Rule-2 of Order-41 CPC makes it clear that those grounds cannot be taken
during appeal by appellants as a matter of right which were not mentioned in memo of appeal,
except with permission of the Court, This was not the argument of learned counsel for the
appellants that any such ground was raised by appellants' side during first appeal. Since he had not
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
raised any ground regarding non-framing of such issue, therefore such ground cannot be raised
directly in second appeal.

19. There was no confusion or misunderstanding between the parties as to what plaint
averment was, what was the real disputed point and what are the pleading of the parties. Plaintiff
has adduced evidences regarding his plaint case. On these points the cross-examination was made
by defendant's side. Then defendant had also led evidences for proving his case mentioned in his
written-statement, but no evidence was given denying the point of readiness and willingness of
plaintiff to perform his part of contract for sale in question. After this, the judgment was passed,
and no prejudice was caused to any party in understanding these points. The trial court's judgment
was based on the finding that plaintiff side had properly proved its case in O.S. no 491/1985. After
this judgment, the defendant had preferred first Civil Appeal no. 124/1994 before the lower
appellate court. The memorandum of appeal does not contain averment that issue on relevant point
of readiness and willingness of plaintiff to perform his part of contract for sale in question was not
framed. Since this point of non-framing of aforesaid issue was not raised under Order-41, Rule-2
C.P.C. by the defendant-appellants; therefore they are estopped from raising this plea before lower
appellate court. Likewise, they cannot raise such issue directly in second appeal to the prejudice of
plaintiff-respondents.

20. Apart from it, as held earlier, there was no confusion or misunderstanding between the
parties at the time of trial of original suit or in first appellate court, as to on what points they are
contesting. The plaintiff had claimed rhar he had been ready and willing to perform his part of
contract, which the defendant-appellant was not denied. From evidences the case of plaintiff was
proved. Therefore impugned judgment was passed. In fact no prejudice was caused to defendantappellant because of non-framing of issues on point of alleged license. In Swamy Atma Nanda v.
Sri Rama Krishna Tapovanam, (2005) 10 SCC 51, the Apex Court had held as under:-

"39. If the parties went to the trial knowing fully well the real issues involved and
adduced evidence in such a case, without establishing prejudice, it would not be open to a party to
raise a question of non-framing of particular issue."

21. The issues are framed only for the purpose of regulating the proceedings in the suit. It
is well settled that omission to frame an issue of fact is not fatal for the suit when the parties went
to trial knowing fully well their rival case and led evidence not only in support of his case but also
to challenge the case of the adversary. As such, on the point raised and to be decided is not fatal
and the finding is not liable to be set aside only on the ground that formal issue has not been
framed.

22. Appellant has failed to produce any evidence to show that any prejudice was caused to
him on account of non framing of the issues. In fact, in this matter no prejudice has actually been
caused to defendant-appellants from non-framing of alleged issue, as held above, therefore the
argument of alleged prejudice is unacceptable and is hereby rejected. The judgments of trial court
as well as the first appellate court are based on proper appreciation of pleadings, in which on the
5 All. Mohd. Ahmad Vs Karamat Hussain & Ors.

1051
basis of available evidence the plaint case of O.S. no. 491/1985, including the point of readiness
and willingness of plaintiff to perform his part of contract for sale in question, was found proved.
The judgment on facts is found correct without any infirmity. Therefore in view of the above, the
first substantial question of law is decided in favour of respondents and against the appellants.

23. Learned counsel for the appellant contended that trial court had not properly
appreciated the evidences adduced by the parties, especially evidence adduced on behalf of
appellant in trial court and judgments were passed on the evidences adduced only by the
respondents side (plaintiff of O.S. no. 491/1985), therefore, the judgment of trial court as well as
judgment of appellate court is erroneous. He further submitted that payment of consideration is not
proved from the evidences adduced in lower court, but both the court had erroneously gave
otherwise finding which is factually incorrect.

24. These arguments were refuted by learned counsel for the respondent, who contended
that trial court as well as the first appellate court had meticulously appreciated the evidences of
both the parties, giving special attention of evidences adduced by appellant Mohd. Ahmad as PW1, and also on other evidence of respondent's side, and then passed the judgment. He contended that
finding of facts were given by the two lower courts independently, but these are concurrent
findings of facts based on proper appreciation of evidences which are not erroneous. Therefore
those findings should not be disturbed in second appeal.

25. A perusal of original record reveals that in lower court, the appellant (plaintiff of O.S.
no. 993/1985, and defendant of O.S. no. 491/1985) had out rightly denied the execution any
agreement deed in favour of appellant side (defendant of O.S. no. 993/1985 and plaintiff of O.S.
no. 491/1985); during cross-examination he did not stick to his pleading of outright denial and
simply stated that he does not remember as to whether he had executed any agreement for sale of
disputed property in favour of Smt. Salaha Begum, Shamima Begum and Alya Begum (plaintiffs of
O.S. no. 491/1985) or not. The registered deed of agreement to sell in question was paper no. '9-Ka'
of trial court record. When that deed was shown to PW-1 Mohd. Ahmad (present appellant) during
cross-examination and he was asked that he had signed and put thumb impression on it before the
Registrar, then he had not denied this fact. Thus not only in pleading but also during the oral
examination the denial of case of respondents (relating to plaint of O.S. no. 491/1985 and w.s. of
O.S. no. 993/1985) by PW-1 Mohd Ahmad (appellant) was vague and uncertain, which leads to
conclusion that he had been suppressing true facts. On the other hand, both the lower courts had
independently appreciated every evidence adduced during the trial including the evidence of
defendants' witnesses and also the expert evidence produced by defendant side. After proper
appreciation of evidences of both sides, trial court as well as the lower appellate court had given
separate and independent, but concurrent findings of fact and reached to conclusion that registered
deed of agreement of sale in question is proved, and the appellant had received advance
consideration and executed registered deed of agreement to sell of disputed property in favour of
respondents (appellants of O.S. no. 491/1985). Meticulous scrutiny of findings of lower courts in
light of those oral and documentary evidences makes it clear that findings of trial court as well as
the first appellate court regarding registered agreement to sale and then for its specific performance
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
is correct and acceptable on facts and of law. Both the courts have given correct findings that it is
proved that appellants had received advance consideration and wullingly executed registered deed
of agreement for sale of disputed property to the respondents.

26. The only question to be determined in this matter at present is as to whether the
appellant had executed registered deed of contract for sale of his disputed property in favour of
respondent after receiving advance consideration, or not. This was not a question of law but was a
question of fact that could be decided on the basis of adduced evidences, as has been done by the
lower courts. There is no infirmity or perversity in findings of lower courts that may require
interference in it by re-appreciation of evidence. Therefore, in view of aforesaid discussions, the
second substantial question of law as above, is decided in negative, against the appellant and in
favour of respondents.

25. On examination of the reasonings recorded by the trial court, which are affirmed by the
learned first appellate court in first appeal, I am of the view that the judgments of the trial court as
well as the first appellate court are well reasoned and are based upon proper appreciation of the
entire evidences on record. No perversity or infirmity is found in the concurrent findings of fact
recorded by the lower courts regarding O.S. no. 491/1985 and first Civil Appeal no. 124/1994, to
warrant interference in this second appeal. None of the contentions of the learned counsel for the
appellant-defendant can be sustained.

26. In view of the above, this appeal is dismissed.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 519 Of 2016

Ali Jan (Deceased) & Ors. ...Appellants
Versus
Fazroo & Anr. ...Respondents

Counsel for the Appellants:
Manish Dev Singh.

Counsel for the Respondents:
Sheetla Sahai Srivastava.

Civil Law-Second appeal-Permanent injunction - Agricultural land - Recorded tenure holder and
bhumidhar - Unauthorized attempt to take possession - Partition - Possession - Registered will-deed
dated 27.8.1992 - Valid will-deed - Fraud - Forged document - Ownership and possession - Concurrent