# Naim Khan and others v. Ali Sher

- **Citation:** (2001) 2 ILRA 78
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naim-khan-and-others-v-ali-sher-39753
- **Pages:** 6

## Text

78 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
academic session but it does not mean
that two years session can be reduced to
one year or it has to be read as one year.
Moreover, no order has been passed by
Additional
Director
of
Education
(Correspondence Course) reducing the
correspondence course from two years to
one year. Therefore, the petitioners were
not eligible to appear in final year
examination
of
Class
XII
under
correspondence course scheme as the had
not studied for two academic sessions
under the correspondence course scheme.
Even if the petitioners have appeared in
the examination of Class XII and their
result had been declared it could not
confer any right on the petitioners. The
respondents have rightly directed the
petitioners to return the mark sheet of
Intermediate Examination 2000 and are in
process of cancelling the result of the
petitioners. The argument of estoppel is
not available. It is a principle of equity. It
can be invoked for sake of justice and not
for
perpetuating
illegality.
If
the
submission
founded
on
estoppel
is
accepted it would not only be against
Regulations
but
illegal
and
unjust.
Therefore,
the
petitioners
were
not
entitled
to
appear
in
Intermediate
Examination 2000. Since petitioners did
not disclose correct facts, they cannot be
permitted to derive any benefit of their
own wrong. The respondents have rightly
directed the petitioners to deposit the
mark sheet of intermediate Examination
2000. I do not find any merit in all the
submissions of the learned counsel for the
petitioners.

5. For the aforesaid reasons, I do not
find any merit in the writ petition. The
writ petition fails and is accordingly
dismissed.
Petition Dismissed

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2All] Naim Khan and others V. Ali Sher

By the Court

1. Ali Sher plaintiff, was the owner
of the disputed agricultural land. He
executed the sale deed of the said of the
said land in favour of Naim Khan on
1.9.1970. The present appellants are the
heirs of Naim Khan. An agreement of
repurchase of the property on payment of
Rs 12,000/= was executed on 4.9.1970.
Both the documents were registered on
the
same
day
i.e.
20.20.1970.
In
pursuance of the agreement of repurchase
the appellant Naim Khan did not executed
the sale deed. Therefore, the respondent
Ali Sher filed the Suit for specific
performance of contract for repurchase,
dated 4.9.1970. In the Suit he made
necessary allegations that he was ready
and willing to perform his part of the
contract and also alleged that he is still in
the possession of the land in dispute.

2. The appellant contested the Suit.
However, he did not dispute the execution
of sale deed and the agreement of the repurchase. On the other hand he contended
that the plaintiff was never ready and
willing to perform his part of contract and
he has no money to re-purchase the land.
The trial court framed necessary issues
and held that the plaintiff was not ready
and willing to perform his part of contract
and he has no money and, therefore
dismissed the Suit. Aggrieved by the
decree, the plaintiff respondent preferred
Civil Appeal No. 162/98, which have
been allowed by order, dated 14.7.1979
and the Suit for specific performance of
contract of re-purchase on payment of Rs.
12,000/= has been decreed. Aggrieved by
it, the present appeal has been preferred.

3. I have heard Sri Ravi Kiran Jain,
Senior Advocate and Sri R.B.D. Misra
learned counsel for the appellants and Sri
R.S. Mishra, learned counsel for the
respondent and have gone through the
record.

4. It has been argued by Sri Ravi
Kiran Jain, learned Senior Advocate that
the appeal has not been correctly decided
and
the
first
appellate
court
has
committed error of law in finding that the
plaintiff respondent was ready and willing
to perform his part of contract, that he
misread the endorsement of the of the
Post-man on the registered cover of the
notice, dated 23.7.73. That he has drawn
wrong presumption from the fact that the
plaintiff purchased the stamps of the court
fee immediately after the period of three
years and this show that the plaintiff was
ready and willing to perform his part of
contract. That the plaintiff did not appear
before the Sub-Registrar inspite of the
notice, dated 26.8.1973 issued by the
appellant and that the right of repurchase
was not exercised in the stipulated time
and the money was never tendered.

5. In this case the notice was sent by
the plaintiff respondent to the appellant on
23.7.73 to come and to execute the saledeed on 3.8.73. The appellant did not
reach on that day though the plaintiff was
present in the office of the Sub-Registrar
and moved an application. Regarding this
the contention of the appellant is that the
notice was received back on 6.8.1973
with the noting that the appellant did not
met the Post-man. The appellant was out
of station and was in Shahjahanpur during
that period and the notice was returned.
That the appellant did not receive the
notice, therefore, he did not go to the
office of the Sub-Registrar on 3.8.1973.
That the appellant himself served the
notice on 26.8.1973 on the plaintiff to get
80 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
the sale deed executed on 3.9.1973 but the
plaintiff did not get sale deed executed on
that day and refused to accept the notice.
That this circumstance show that the
appellant was ready to execute the sale
deed within time, but the plaintiff was not
having sufficient funds and was unable to
get the sale-deed executed in his favour.
That he was not ready and willing to
perform his part of the contract at all the
times.

6. The learned counsel for the
appellant in support of the argument has
also referred to the decision of Jugraj
Singh and another V. Labh Singh and
others, AIR 1995 Supreme Court, page
945. It was observed by the Apex Court
that the plaintiff should prove continuous
readiness and willingness at all stages
from the date of agreement till date of
filing of the Suit. It was further observed
that the substance of the matter and
surrounding
circumstances
and
the
conduct of the plaintiff must be taken into
consideration in adjudging readiness and
willingness to perform the plaintiff's part
of the contract.

7. In this connection it is argued that
the plaintiff in his statement stated that in
the year 1970 he was having Rs.500/= -
700/= only with him. That therefore, at
that time the plaintiff had no sufficient
means. That the appellant himself served
the notice on 26.8.1973 to get the sale
deed executed on 3.9. 1973 on payment of
Rs. 12,000/=. That inspite of that notice
the plaintiff did not appear on 3.9.1973 to
get the sale deed executed. It is further
contended that the plaintiff borrowed a
sum of Rs. 3000/= on 4.9. 1973 from the
appellant
and
executed
the
pronote
regarding which the Suit has been filed.
That the fact that plaintiff borrowed a sum
Rs. 3000/= from the appellant show that
on that day he dad no money to get the
sale- deed executed. It has been argued by
the learned counsel for the appellant that
all these circumstances were not at all
considered by the first appellate court and
the judgement is totally silent regarding
these circumstances. It is also contended
that
all
these
circumstances
were
considered
by
the
trial
court and,
therefore the first appellate court has erred
in
reversing
the
finding
without
considering the important circumstances.

8. It is further contended that the
first
appellate
court
has
considered
irrelevant circumstance to record the
finding that the plaintiff was ready and
willing to perform his part of contract.
That it has observed that the Suit was
filed on the very next day of the last day
fixed for the execution of the sale-deed.
That court fee worth Rs. 1,307.50p. Were
also purchased on that day. That filing of
the Suit and purchasing of the court fee
can never be a circumstance to find that
the plaintiff was ready and willing to
perform his part of contract it has been
argued that in case it is taken as
circumstances, all the Suits for specific
performance of contract for sale should
have decreed and there is no necessity to
consider the point of readiness and
willingness. The first appellate court has
also erred in accepting that the plaintiff
was having ready money to get the saledeed executed. That means has not been
properly
considered.
That
the
first
appellate court has also erred in drawing
inference from the fact that the appellant
did not appear for execution of the saledeed before the Sub-Registrar on 3.8.1973
in
pursuance
of
the
notice,
dated
23.7.1973. That notice, dated 23.7.1973
was never received by the appellant and,
2All] Naim Khan and others V. Ali Sher

therefore,
there
is
no
question
of
appearance before the Sub-Registrar for
execution of the sale -deed in pursuance
of that notice. The learned counsel has
also referred to the decision of Jagdish
Singh V. Natthu Singh, AIR 1992
Supreme court, page 1604. It has been
held by the apex Court in this case that
finding of the fact arrived at by nonconsideration of the relevant evidence or
by essentially wrong approach is vitiated
and the High Court is not precluded from
recording proper findings. It is, therefore,
contended that the High Court could
disturb the binding of the fact in present
case for the foregoing reasons.

9. Contrary to this, the learned
counsel for the respondent have referred
to the several cases in which the Apex
Court has held that findings of fact should
not be disturbed in Second Appeal by the
High Court. The first is Therakhatoon V.
Salambin
Mohammaad,
AIR
1999
Supreme Court page 1104. In this case it
was found that one of the reasons given
by
the
court
below
was
factually
incorrect. The findings however, based on
other relevant material on record. It was
observed that this finding cannot be
interfered by the High Court.

10. The other authority referred to
on this point is: Armugham (dead) by
LRS & Others V. Sundarambal &
Another, JT 1999 (4) Supreme Court,
page 464. In this case, the High Court
examined the evidence and reversed the
judgement of the first appellate court. The
Apex Court has held that it is not
permissible for the High Court to interfere
in the finding of fact

11. The third case referred to is:
Ram Kumar Agarwal and Another V.
Thawar Das (Dead), JT 1999 (6) Supreme
Court, page 179. It was observed in this
case that High Court can interfere with
judgements of courts below only on
substantial questions of law. Findings of
facts cannot be interfered with. The study
of these cases show that findings recorded
by courts below cannot be interfered by
the High Court unless the finding is
perverse and contrary to the evidence due
to the misreading of the evidence. Even if
few circumstances were not considered by
the first appellate court and the finding is
based on other material, it cannot be
disturbed in Second appeal by the High
Court.

12. In the light of the above
decisions, I, therefore, examine carefully
the finding recorded in this case.

13. The important circumstance of
this case is that the plaintiff was the
owner of the property and he executed
sale-deed on 1.9.1970. The agreement is
an agreement for reconveyance, which
was executed on 4.9.1970. The sale-deed
as
well
as
the
agreement
of
the
reconveyance both were registered on
20.10.1970 period fixed for reconveyance
was three years and, therefore, the deed
should have been executed by 3.9.1973.
The Suit was filed on 4.9.1973 and is,
therefore, within time. The facts of this
case are similar to the case of : D.S.
Thimmappa V. Siddaramakka, AIR 1996,
Supreme Court, page 1960. It was held in
this case that cause of action arose on the
expiry on the fixed period. Owner of the
property approached the court thereafter
for specific performance of agreement of
reconveyance. The Suit was held to be
within limitation.
82 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
14. In the light of the observations
made in the judgement of the Apex Court,
the distinction to be drawn in a case
where there is simplicitor agreement for
sale
and
where
agreement
is
for
reconveyance. In the present case the
plaintiff sold the land and there is
agreement for reconveyance. It is implied
in the agreement that the plaintiff was in
need of money and, therefore, he sold the
land and got executed the agreement of
reconvene. If it is so, the plaintiff cannot
be expected to be in possession of
sufficient
funds
immediately
after
execution
of
the
agreement
of
reconveyance.
The
period
fixed
for
reconveyance was for three years so that
the plaintiff may arrange funds. In this
case it is to be seen whether the plaintiff
was ready and willing to perform his part
of contract within three years the period
fixed in the agreement for reconveyance.
In such a case the fact that immediately or
sometime after of the agreement the
plaintiff
was
not
in
possession of
sufficient funds for the reconveyance is
not material. Had he got means at that
time, there was no question for plaintiff to
execute the sale deed. Time of three years
was granted for reconveyance with the
intentions that during this period the
plaintiff may collect the funds required
for the reconveyance. In this light, the
argument that in the year 1970 the
plaintiff was having Rs. 500-700 is not
material. Even, if the plaintiff was not
having sufficient funds in the year 1970 it
is not material. The plaintiff alleged that
he collected money by the sale of his
agricultural produce and served the notice
on the appellants to execute the sale-deed
on 3.8.1973. The plaintiff remained
absent before the Sub-Registrar on that
day. The plea taken by the appellant is
that the notice was not served upon him.
The service of the notice was considered
in detail by the first appellate court, who
has held that service was intentionally
avoided. The circumstances narrated by
the appellant show that the appellant
avoided the service so that he may not bee
required to appear before the SubRegistrar on the date fixed. The allegation
of
the
appellant
that
he
was
in
Shahjahanpur in connection with his
illness ad was getting treatment was found
incorrect by the first appellate court and
cogent reasons have been recorded for the
same. It does not appear proper that a
person shall go from Shaharanpur to
Shahjahanpur for better treatment. Even
the name of the ailment has not been
disclosed and name of the person from
whom the treatment was taken was also to
disclosed. Therefore, the circumstance
show that the appellant was not ready to
execute the sale-deed and avoided service
of notice.

15. Coming to the argument that the
appellant served notice on 26.8.1973 to
get the sale-deed executed on 3.9.1973,
but the plaintiff did not appear to get the
sale deed executed on that day. On this
point the contention of the plaintiff is to
be accepted that he did not receive the
notice. The plaintiff filed the present Suit
on 5.9.1973. Therefore, it shall be
presumed that he had sufficient means on
3.9.1973 and had he got the notice he
would have appeared before the SubRegistrar on that day.

16. The argument that the plaintiff
borrowed a sum of Rs. 3000/= on
4.9.1973
from
the
appellant
and,
therefore, it should be held that he had no
means on that day cannot be accepted.
2All] Ram Surat and others V. The U.P. Public Service Commission and another

17. It is true that the Suit on the
basis of the pronote has been filed for the
recovery of the amount and that Suit was
decreed ex-parte. The plaintiff applied for
setting aside the ex-parte decree. The fact
that the Suit has been filed and decided
ex-parte do not establish that the money
was borrowed by the plaintiff from the
defendant. It may be that this evidence
has been created by the plaintiff to defeat
this
Suite.
It
appears
from
the
circumstance that the suit for this money
on the basis of the pronote dated 4.9.
19733 was filed in the year 1973 itself.
There is no reasonable explanation as to
what was the hurry to file the Suit on the
said pronote as the limitation was for
three years.

18. After considering the entire
circumstance, I am of the opinion that it
has been established that the plaintiff was
ready and willing to perform his part of
contract
at the relevant time. The
execution of the deed of reconveyance is
admitted and, therefore, no other question
arise for decision in this appeal.

19. The appeal, therefore, fails and
is accordingly dismissed. No orders as to
costs.
Petition Dismissed

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