# Ompal Singh v. Santram Gupta

- **Citation:** (2022) 7 ILRA 1241
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-27
- **Case number:** Second Appeal No. 1190 of 2017
- **Bench:** Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ompal-singh-v-santram-gupta-44390
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 100 - Suit for specific
Performance-Appellant/defendant
entered
agreement for sale of his share of undivided
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
land-half money was paid as earnest moneyremaining to be paid upon execution of sale
deed-Appellant failed to execute the sale deedagreement to sell-a registered
documentauthentic and genuine-plea that defendant/
Appellant not well educated-not aware of
contents-disbelieved by both the courts belowas Appellant was Gram Pradhan-no perversity in
the findings recorded by the Court belowSecond Appeal admissible only on substantial
question of law and not on fact.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

7 All. Ompal Singh Vs. Santram Gupta
1241

(2) Should the U.P. Avas Evam
Vikash Parishad be saddled with interest.
The appeal was dismissed for default way
back in the year 1995, it was again
dismissed for default even in the year
2020 and 2021, court fees were not paid.
The other matters came to be decided in
the year 2016 and 2018 respectively, that
also did not wake the slumber of the
appellant herein. Though the delay is
condoned by this Court because of the
decision of the Apex Court that parity
should be maintained but the decision in
Ram Chandra Vs. U.O.I (2020) 15SCC
would apply, but the respondents cannot
be saddled with costs/interest for the said
period. The said view is reiterated by the
Apex Court in case of Nimna Dudhana
Project Vs. State of Maharashtra & Ors.,
AIR 2020 SC 717. The appellant has been
lacks
in
prosecuting
the
case
and
therefore and in the light of these
judgements the interest for the said
period cannot be granted, however, on the
enhanced amount from the date of
enhancement is made till the award
appellant would be entitled on the
enhanced amount and from the date the
delay is restored it will carry interest. It is
stated by the Sri Chandrashkehar, learned
counsel for the respondents that the
matter is concluded by the Apex Court
and hence though formally objects as Rs.
100/- per square yard is claimed.

7. We hold in light of the facts that
Rs. 120/- per square yard be paid to the
appellant, however, for the period from
1995 till the restoration is filed in the year
2022, they shall not be entitled for the
interest as held by the Apex Court and as
submitted by Sri Chandrashekhar, learned
counsel for the respondents.

8. The defective appeal is disposed of.

9. The appellant to make good the
deficit court fees and if they do not make
good the requisite court fees, the learned
trial Judge of the court below where the
money is to be deposited would deduct the
said amount of Rs. 20/- per square yard.
The deficit court fees would be recovered
by
the
amount
deposited
by
the
respondents. The respondents to deposit the
difference amount within 12 weeks from
today with the accrued interest from the
date of the award till the award and from
the date of filing of restoration i.e
27.04.2022 till the amount is deposited.

10.

We
are
thankful
to
Sri
Chandrashekhar who has assisted us on the
very first date of hearing though his name
was not shown in the cause list.

11. The counsel for the State adopted
the submission of Sri Chandrashekhar.
----------
(2022)07ILR A1241
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.08.2018

BEFORE

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Second Appeal No. 1190 of 2017

Ompal Singh ...Appellant
Versus
Santram Gupta ...Respondent

Counsel for the Appellant:
Sri Preetpal Singh Rathore

Counsel for the Respondent:
Sri R.L. Varma, Sri Chandra Bhushan Verma

Criminal Law - Criminal Procedure Code,
1973 - Section 100 - Suit for specific
Performance-Appellant/defendant
entered
agreement for sale of his share of undivided
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
land-half money was paid as earnest moneyremaining to be paid upon execution of sale
deed-Appellant failed to execute the sale deedagreement to sell-a registered
documentauthentic and genuine-plea that defendant/
Appellant not well educated-not aware of
contents-disbelieved by both the courts belowas Appellant was Gram Pradhan-no perversity in
the findings recorded by the Court belowSecond Appeal admissible only on substantial
question of law and not on fact.

Appeal dismissed. (E-9)

List of Cases cited:

1. Hero Vinoth (Minor) Vs Sheshammal, Appeal
(Civil) No.4715 of 2000

2.
E.Mahboob
Saheb
Vs
N.Sabbarayan
Chowdhary, A.I.R. 1982, SC 679

3. St. of Karn. Vs Appa Balu Ingale, A.I.R. 1993,
SC 1126

4. Gurdev Kaur Vs Kaki (2007) 1 SCC 546

5. S.B.I. & ors. Vs S.N. Goyal; (2008) 8 SCC 92

6. Santosh Hazari Vs Purushottam Tiwari,
2001(3) SCC 179

7. Rimmalapudi Subba Rao Vs Noony Veeraju,
AIR 1951 Madras 969

8. Sir Chunilal 10 Mehta & Sons Ltd. Vs The
Century Spinning and Manufacturing Company
Ltd. AIR 1962 SC 1314
(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

1. The instant second appeal is
directed against the judgment dated
04.11.2015 passed by learned Additional
District Judge, Court No.8, Shahjahanpur
in Civil Appeal No.61/2011, whereby the
learned Additional District Judge has
dismissed
the
appeal
filed
by
the
defendant-appellant and has affirmed the
judgment and order dated 14.2.2011
passed
by
Additional
Civil
Judge,
Shahjahanpur decreeing
the
suit
of
plaintiff-respondent.

2. Heard Shri Preet Pal Singh
Rathore, learned counsel for the appellant
and Shri R.L. Varma on behalf of the
caveator-respondent on the point of
admission and perused the available
record.

3. The brief facts giving rise to the
dispute between the parties are that the
appellant namely Ompal Singh who is the
defendant in Original Suit No.379/2004 is
the co-owner of Gata No.241 measuring
1.084 hectares, along with three other cosharers. He entered into an agreement for
sale of 4 bighas from his share of
undivided land. The agreement for sale
was executed on 25.7.2003 for a period
of one year which was going to expire on
24.7.2004. The price of the land was
fixed at Rs.80,000/- out of which
Rs.40,000/- was paid as earnest money to
the defendant-appellant by the plaintiffrespondent and it was settled between
them that the remaining Rs.40,000/- shall
be paid to the defendant-appellant within
a period of one year, who in turn shall
execute the sale deed. However, when the
appellant failed to execute the sale deed
within the stipulated period despite
service of notice on him, the purchaser
i.e. plaintiff-respondent filed a suit for
specific performance of contract against
him (Original Suit No.379/2004), copy
whereof is annexed as (Annexure No.5).

4. According to the plaint averments,
the plaintiff-respondent was always ready
and willing to perform his part of the
contract, but the (defendant- appellant)
always tried to postpone the matter on one
pretext or the other. In the aforesaid
circumstances, plaintiff was compelled to
7 All. Ompal Singh Vs. Santram Gupta
1243
issue notice to the defendant by R.P.A.D.
informing him to be present in the office of
Sub Registrar, Sadar Shahjahanur for
execution of the sale deed. According to the
plaintiff-respondent, on 24.7.2004, the
defendant came to Kutchery at 1 P.M. but,
when the plaintiff asked him to take the
remaining amount and to execute the sale
deed, he silently escaped from there.
Thereafter, the plaintiff gave an application
at the office of the Sub Registrar to register
his
attendance.
The
plaintiff
again
requested the defendant to execute the sale
deed on which the defendant gave him the
assurance that he will execute the sale deed
on 26.7.2004. On 26.7.2004, the plaintiffrespondent reached at the office of the Sub
Registrar at 10 A.M. and waited there for
whole day, but the defendant-appellant did
not appear, therefore, the plaintiff again
moved an application before the Sub
Registrar
to
register
his
presence.
According to the plaintiff, after 26.7.2004,
he asked the defendant several times to
execute the sale deed, but he never gave
any satisfactory reply and always tried to
postpone the matter and ultimately on
12.8.2004, he refused to execute the sale
deed. As a result, the plaintiff-respondent
was constrained to file a suit for specific
performance of contract.

5. The defendant-appellant filed his
written statement stating therein that the
defendant had taken a loan of Rs.30,000/-
from the plaintiff with interest at the rate of
15 percent per annum and as a safety
measure, an agreement for sale was
executed between them on 25.7.2003 for a
period of one year. It was further stated by
the defendant that he is not well educated,
he only knows to make his signature. His
signatures were obtained on the agreement
deed by the plaintiff in collusion with the
employees of the Registrar's Office without
its contents being read over and explained
to him. The defendant-appellant had
already
returned
Rs.20,000/-
to
the
respondent on 07.8.2004, out of the total
amount of Rs.30,000/- taken as loan from
him and the remaining Rs.10,000/- was
also returned by him on 30.8.2004 in a
Panchayat, where it was settled that
plaintiff-respondent
shall
cancel
the
agreement for sale. But the plaintiffrespondent with malafide intention, filed
the suit for specific performance of
contract.

6. The learned trial court, on the basis
of pleadings framed four issues out of
which the relevant issue nos.1 and 4 are as
follows:

(1) Whether the plaintiff is
entitled to get the sale deed executed in his
favour on the basis of agreement to sell
dated
25.7.2003,
after
payment
of
remaining amount of Rs.40,000?

(2) Whether the balance of
convenience is in favour of plaintiff?

7. Both the parties adduced oral and
documentary evidence in support of their
respective claims.

8. The learned trial court after hearing
both the parties and on the basis of
evidence led by them decreed the suit by
the judgment dated 14.2.2011.

9. The appellant-defendant filed Civil
Appeal No.61/2011 which was dismissed
by the impugned judgment and order dated
04.11.2015.

10. Now the defendant-appellant is
before this Court in the second appeal.
1244 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Learned counsel for the appellant
has contended that both the courts below
have failed to consider that the land in
question is a combined land of four cosharers including the appellant and their
respective shares have not been determined
by way of partition. The submissions of
learned counsel is that unless and until a
partition by metes and bounds takes place
between the parties, no co-sharer has a
right to sell even his own share in the joint
property, therefore, the agreement to sell
was not enforceable. It is further contended
that although the plaintiff had stated that on
24.7.2004 and 26.7.2004, the defendantappellant met him at the Registrar Office,
but he did no execute the sale deed, but
there is no evidence to substantiate the
aforesaid facts. The plaintiff has tried to
create his case. In fact, on both days the
plaintiff had gone to the Registrar Office all
alone without any witness of proposed sale
deed and he has not even purchased any
stamp paper on those dates. It is further
contended that the learned lower appellate
court has completely ignored the evidence
led by the appellant and has dismissed the
appeal in a mechanical manner by the
impugned judgment, which is liable to be
set-aside. It is lastly contended that on
24.7.2004, the agreement to sell had
frustrated in favour of the appellant and it
could not have been enforced due to lapse
of time stipulated in the agreement, but
both the courts below without keeping in
view this fact, decided the suit and appeal
in favour of the plaintiff-respondent by the
impugned judgments which are liable to be
set-aside.

12. Per contra, learned counsel for the
caveator-respondent
has
contested
the
appeal by arguing that all the points raised
by the learned counsel for the appellant
relate to pure questions of fact. There is no
substantial question of law involved in this
appeal. There are concurrent findings of
facts by both the courts below against the
appellant and as per the settled legal
position, the concurrent findings of facts
should not be disturbed in the second
appeal, if those are not perverse.

13. Considered the rival submissions
advanced by learned counsel for the parties.

14. The scope of second appeal under
Section 100 C.P.C. is very limited and as
per settled legal position, the High Court
will not interfere with concurrent findings
of fact recorded by the courts below unless
those findings are perverse or against the
law. While exercising jurisdiction under
Section 100 C.P.C., the re-appreciation of
evidence is not permissible.

15. The Apex Court in the case of
Hero Vinoth (Minor) Vs. Sheshammal,
Appeal (Civil) No.4715 of 2000 decided on
08.5.2006 has laid down the law as under:

"It is to be kept in mind that the
right of appeal is neither natural nor an
inherent right attached to the litigation.
Being a substantive statutory right, it is to
be regulated in accordance with law in
force at the relevant time. The conditions
mentioned in the section must be strictly
fulfilled before a second appeal can be
maintained and no court has the power to
add or to enlarge those grounds. The
second appeal cannot be decided on merely
equitable grounds. The concurrent findings
of facts will not be disturbed by the High
Court in exercise of powers under this
section. Further, a substantial question of
law has to be distinguished from a
substantial questions of fact."

16. In E.Mahboob Saheb Vs.
N.Sabbarayan Chowdhary, A.I.R. 1982,
7 All. Ompal Singh Vs. Santram Gupta
1245
SC 679, the Supreme Court reiterated the
law that if there are concurrent findings of
fact reached by the lower court's the High
Court cannot reappreciate the evidence and
substitute its own conclusion in place of
those entered by the lower court's.

17. In the case of State of Karnataka
Vs. Appa Balu Ingale, A.I.R. 1993, SC
1126, it was held that concurrent findings
arrived at by the two courts below are not
to be interfered with by the High Court in
absence of any special circumstances or
unless they are perverse.

18. In Gurdev Kaur Vs. Kaki (2007) 1
SCC 546, Supreme Court considered the
scope and ambit of Section 100 C.P.C. by
referring various judgments and legislative
background and dismissed the second appeal
with costs after observing that the scope of
Section 100 C.P.C. has not been correctly
appreciated and applied by the High Court.
The Apex Court observed that in view of the
clear legislative mandate, the High Court
could not have interfered with pure findings
of facts arrived by the court's below.

19. Now reverting to the case in hand,
on a careful perusal of both the judgments
passed by the courts below it cannot be said
that the concurrent findings of facts are
perverse.

20. Copy of the written statement
available
on
record
shows
that
the
defendant-appellant nowhere in his written
statement has taken the plea that the
undivided share in the joint property could
not have been sold by him. It is also well
settled that the arguments beyond pleadings
cannot be sustained.

21. Both the learned Courts below
have
discussed
all
the
facts
and
circumstances of the case in detail and after
carefully
scrutinizing
the
evidence
available on record have recorded a
concurrent finding that the plaintiff was
always ready and willing to perform his
part of the contract, but the defendant failed
to execute the sale deed. Both the courts
below were of the concurrent view that
there is no bar, restricting a person to sell
his share of undivided land. The agreement
to sell being a registered document was
found by the courts below as authentic and
genuine document and the plea of the
defendant-appellant that he being not well
educated was not aware of its contents, was
disbelieved by both the courts below on the
ground that it cannot be expected from a
Gram Pradhan that he will put his signature
on a document without knowing its
contents.

22. There does not appear any
perversity or illegality in the findings
recorded by the courts below requiring any
interference by this Court in the second
appeal.

23. Further, as per Section 100 C.P.C,
a second appeal is admissible only on
substantial questions of law.

24. Sub section (3) of Section 100
C.P.C. provides that in an appeal under this
section, the memorandum of appeal shall
precisely state the substantial question of
law involved in the appeal.

25. A perusal of the memo of appeal
in the present case shows that following
two questions have been proposed by the
learned counsel for the appellant as
substantial questions of law:

"(a)
Whether,
the
plaintiff/respondent was ready and willing
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
to execute sale deed in his favour from the
defendant/appellant and his suit was liable
to be dismissed in accordance with
provisions laid down u/s 16 (c) of the
Specific Relief Act.

(b) Whether, the learned Courts
below did manifest error of law in not
framing necessary issues with regard to (i)
Readiness and willingness of plaintiff, (ii)
Comparative hardship of parties, (iii)
Effects of non-filing of replication, (iv)
Frustration of agreement, (v) the effect of
co-sharer's share in the land in question,
(vi) refund of money by the appellant to the
plaintiff/respondent
and
(vii)
Money
laundering job of plaintiff without any valid
license etc. and has decided the case
against the appellant in quite illegal
manner."

26. In my view, the first substantial
question as proposed by the learned
counsel for the appellant is not a substantial
question of law. On the contrary, it is purely
a substantial question of fact. Whether the
plaintiff was ready and willing to perform
his part of contract is a pure question of
fact because it is to be gathered from the
facts and circumstances of the case and
from the evidence available on record. So
far as the second question is concerned,
though a legal issue is involved in it i.e.
effect of non framing of issues with regard
to effect of non filing of replication,
comparative hardship of parties etc. in the
opinion of this Court, it is not an arguable
question of law because the learned trial
court has already framed issue no.4 with
regard to comparative hardship/balance of
convenience and has discussed all other
points while deciding issue no.1.

27. In the facts and circumstances of
the case as discussed above and in wake
of the well settled legal position, this
Court is of the considered view that none
of the aforesaid questions framed by
learned counsel for the appellant, can be
termed as "substantial questions of law".

28. The term "substantial question
of law" has been interpreted by Hon'ble
Supreme Court in a catena of judgments.

29. 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 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."

30.

In
Santosh
Hazari
Vs.
Purushottam Tiwari, 2001(3) SCC 179
the Supreme Court considered what the
7 All. Amit Singh Vs. State of U.P. & Anr.
1247
phrase "substantial question of law" means
as under:-

"The phrase is not defined in the
Code. The word "substantial", as qualifying
question of law, means-of having substance,
essential, real, of sound worth, important or
considerable. It is to be understood as
something
in
contradistinction
withtechnical, of no substances or consequence,
or academic merely."

31. A Full Bench of Madras High Court
in Rimmalapudi Subba Rao Vs. Noony
Veeraju, AIR 1951 Madras 969 considered
this term and observed:

"when a question of law is fairly
arguable, where there is room for difference
of opinion or where the Court thought it
necessary to deal with that question at some
length and discuss an alternative view, then
the question would be a substantial question
of law. On the other hand, if the question was
practically covered by decision of highest
Court or if general principles to be applied in
determining the question are well settled and
the only question was of applying those
principles to the particular fact of case, it
could not be a substantial question of law."

32. The above observations were
affirmed and concurred by a Constitution
Bench of Hon'ble Supreme Court in Sir
Chunilal Mehta and Sons Ltd. Vs. The
Century Spinning and Manufacturing
Company Ltd. AIR 1962 SC 1314.
Referring to above authorities, the Court in
Santosh Hazari (supra) said:

"A point of law which admits of no
two opinions may be a proposition of law
but cannot be a substantial question of law.
To be substantial, a question of law must be
debatable, not previously settled by law of
the land or a binding precedent, and must
have a material bearing on the decision of
the case, if answered either way, in so far as
the rights of the parties before it are
concerned. To be a question of law involving
in the case there must be first a foundation
for it laid in the pleadings and the question
should emerge from the sustainable findings
of fact arrived at by court of facts and it
must be necessary to decide that question of
law for a just and proper decision of the
case. An entirely new point raised for the
first time before the High Court is not a
question involved in the case unless it goes
to the root of the matter. It will, therefore,
depend on the facts and circumstance of
each case whether a question of law is a
substantial one and involved in the case, or
not; the paramount overall consideration
being the need for striking a judicious
balance
between
the
indispensable
obligation to do justice at all stages and
impelling necessity of avoiding prolongation
in the life of any lis."

33. In view of the above cited legal
position and in absence of any arguable
substantial question of law, this appeal cannot
be admitted.

34. Accordingly, the appeal is dismissed
at the admission stage itself.
----------
(2022)07ILR A1247
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.06.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Matters U/A 227 No. 17365 of 2021

Amit Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents