# Smt. Hirakali & Anr v. Ankur Agarwal & Anr

- **Citation:** (2015) 3 ILRA 1450
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-08
- **Case number:** Second Appeal No. 998 of 2015
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-hirakali-anr-v-ankur-agarwal-anr-43344
- **Pages:** 4

## Headnote

C.P.C. Section-100-Second Appeal-Suit for
specific performance-decreed by Courts
below-ground
regarding
escalation
of
value of property subject matter of suitnot taken before Lower Appellate Courtcan not be available in Second appeal-no
substantial
question
of
law
found
involved-suit rightly decreed by Court
below.
Held: Para-9
On examination of the reasoning 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 based upon proper
appreciation of the entire evidence on
record. No perversity or infirmity is found in
the concurrent findings of fact recorded by
the trial cout that has been affirmed by the
first appellate court to warrant interference
in this appeal. No question of law, much
less a substantial question of law was
involved in the case before this Court. None
of the contentions of the learned counsel
for
the
appellant-
plaintiffs
can
be
sustained.
Case Law discussed:
Laws (SC)-2008-1-13; ((2008) 12 SCC 67)

## Text

1450
 INDIAN LAW REPORTS ALLAHABAD SERIES
the client. It is often said that the lawyer can
make decisions as to tactics without
consulting the client, while the client has a
right to make decisions that can affect his
rights."
9. These principles would clearly
stand attracted to the fact of this case. For
these reasons, we allow the special appeal
and accordingly set aside both the orders
dated 1 November 2010 and 16 October
2015. Writ-A No. 18410 of 1993 is
restored to the file of the learned Single
Judge for disposal afresh. However, we
clarify that we have not expressed any
opinion on the merits of the rights and
contentions of the parties in the writ
petition which will have to be adjudicated
upon by the learned Single Judge.
10.

The
special
appeal
is,
accordingly, disposed of. There shall be
no order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2015
BEFORE
THE HON'BLE PRAMOD KUMAR
SRIVASTAVA, J.
Second Appeal No. 998 of 2015
Smt. Hirakali & Anr.
 ...Appellants
Versus
Ankur Agarwal & Anr.
...Respondents
Counsel for the Appellants:
Sri Keshav Dhar Tripathi
Counsel for the Respondents:
---
C.P.C. Section-100-Second Appeal-Suit for
specific performance-decreed by Courts
below-ground
regarding
escalation
of
value of property subject matter of suitnot taken before Lower Appellate Courtcan not be available in Second appeal-no
substantial
question
of
law
found
involved-suit rightly decreed by Court
below.
Held: Para-9
On examination of the reasoning 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 based upon proper
appreciation of the entire evidence on
record. No perversity or infirmity is found in
the concurrent findings of fact recorded by
the trial cout that has been affirmed by the
first appellate court to warrant interference
in this appeal. No question of law, much
less a substantial question of law was
involved in the case before this Court. None
of the contentions of the learned counsel
for
the
appellant-
plaintiffs
can
be
sustained.
Case Law discussed:
Laws (SC)-2008-1-13; ((2008) 12 SCC 67)
(Delivered by Hon'ble Pramod Kumar
Srivastava, J.)
1. Original suit no. 934/2006 (Ankur
Agrawal v. Smt. Hirakali & others) was
filed
for
specific
performance
of
registered
contract
dated
25.06.2009
executed between the plaintiff Ankur
Agrawal and Om Prakash (predecessor in
interest of defendants) for sell of disputed
property in favour of the plaintiffs.
According to plaint case, plaintiffs and
Om Prakash had executed said registered
sale-deed in which it was agreed that
owner of disputed property Om Prakash
will sell the said property for a
consideration of Rs. 1,60,000/- in favour
of plaintiffs, and at the time of execution
of said agreement to sell Om Prakash had
received advance of Rs. 70,000/- .The
3 All. Smt. Hirakali & Anr. Vs. Ankur Agarwal & Anr.
1451
plaintiff had been ready and willing to
perform his part of such contract but
earlier Om Prakash and thereafter his
successor in interest, namely, defendants
had not executed the sale deed; therefore,
plaintiffs had filed suit for specific
performance of said contract.
2. Defendants (present appellants)
had filed written-statement in original
suit. Then trial court had framed issues,
accepted evidences of the parties and
thereafter Additional Civil Judge (S.D.)
Court No.-4 Bareilly had passed the
judgment dated 25.05.2009, by which suit
was decreed and defendants were directed
to receive a consideration of Rs. 90,000/-
from plaintiffs and execute the sale deed
in his favour.
3. Aggrieved by the said judgment
dated 25.05.2009, defendants had filed
Civil Appeal no. 50/2009 (Smt. Hirakali
& another v. Ankur Agrawal & another.
This appeal was preferred by the three
defendants of original suit whereas the
defendant Sunil Kumar s/o Om Prakash
had not preferred appeal, so he was made
formal respondent in first appeal. The
Additional Judge/ Special Judge (SC/ST
Act), Bareilly had afforded opportunity of
hearing to the parties, heard their
arguments, framed point of determination
and thereafter passed judgment dated
30.07.2015, by which first appeal was
dismissed and judgment of trial court was
confirmed. Aggrieved by the judgments
of trial court as well as the first appellate
court, this second appeal has been
preferred by the appellants of first appeal.
(two defendants of original suit).
4. Learned counsel for the appellants
contended
that
appellants
had
no
knowledge of registered agreement to sell,
but the two courts below had erroneously
passed the judgment against it. He also
contended that finding of the two courts
below are erroneous and perverse which
cannot sustained. He also placed alternative
arguments that at the time of specific
performance of contract of sale of property,
court should consider the equity that after
long time of passing of the agreement to sell
the value of property would enhance,
thereafter at the time of granting of relief for
specific
performance,
amount
of
consideration should be enhanced.
5. A perusal of the records reveal that it
has been admitted fact that Om Prakash was
original owner of the disputed property for
which registered agreement to sell was
executed, and later on Om Prakash had died.
The defendants/appellants had challenged the
execution of registered agreement to sell by
Om
Prakash
in
favour
of
plaintiffs/respondents. On this point, the trial
court had framed issue no.-1 to the effect that
whether
predecessor
in
interest
of
defendants, namely, Om Prakash had
executed the registered agreement to sell
dated 25.06.2005 in favour of plaintiff for
sale of disputed property. On this point trial
court had accepted evidences of the parties.
In this regard, plaintiff had adduced four
witnesses
in
oral
evidences
and
defendants/appellants side had also adduced
three witnesses in oral evidences. Trial court
had
discussed
oral
and
documentary
evidences and thereafter gave specific
finding
of
fact
in
favour
of
plaintiffs/respondents
holding
that
Om
Prakash had executed registered agreement
to sell with plaintiff for sale of disputed
property to plaintiff for consideration of Rs.
1,60,000/- and thereafter accepted Rs.
70,000/- as advance consideration. When
these findings were challenged by the
appellants side in first appeal, then first
1452
 INDIAN LAW REPORTS ALLAHABAD SERIES
appellate court had also considered the facts,
circumstances and evidences and confirmed
findings of trial court on this point.
6. So far as perversity of appreciation
of evidences by two courts below is
concerned, in this regard a perusal of
evidences and findings reveal that both the
courts below had rightly reached to the
conclusion that Om Prakash had entered
into agreement with plaintiffs/respondents
and executed registered agreement to sell
disputed property as mentioned in the
plaint. The case of defendants (present
appellants)
was
simply
of
denial.
Admittedly they were not a party to said
agreement to sell and had no personal
knowledge about it when plaintiff had
properly proved the plaint case regarding
execution of registered agreement to sell in
question and discharged his burden. Then
the trial court as well as first appellate court
had rightly reached to the conclusion
mentioned in the judgment on this point.
There appears no illegality or perversity in
finding of the two courts below. The dispute
between the parties in this matter is only
that whether predecessor in interest and
owner of disputed property (Om Prakash)
had executed disputed registered agreement
to sell in favour of Ankur Agrawal as
mentioned in plaint or not. It is a question of
fact that can only be decided on the basis of
evidences. There was nothing in it that may
be treated as point of law . Two courts
below had appreciated facts, evidences,
circumstances
and
thereafter
gave
concurrent findings of facts that plaint case
in this regard has been proved and Om
Prakash and Ankur Agrawal had executed
the registered agreement to sell as
mentioned in plaint. By the decree of two
courts below the defendants were directed
to receive remaining
amount to sale
consideration to the extent of Rs. 90,000/-
and execute the sale deed of said property.
No question of law arises in this matter
relating to dispute between the parties.
7. Learned counsel for the appellants
had cited the case of Pratap lakshmand
Muchandi
Vs.
Shamlal
Uddavadas
Wadhwa, Laws (SC)-2008-1-13 and also
sited in ((2008) 12 SCC 67), in which
Apex Court had held as under:
"16. But at the same time it is also true
that the agreement to sell was executed way
back in the year 1982. Since after 1982 much
water has flown under the bridge, the value
of the real estate has shot up very high,
therefore, while exercising our jurisdiction
under Section 20 of the Specific Relief Act,
1963 we would like to be equitable and
would not allow the sale of property to be
executed for a sum of Rs 1,20,000. The
litigation has prolonged for almost 25 years
and now at last reached at the end of the
journey. Therefore, we have to settle the
equity between the parties. We hold that the
agreement to sell was genuine and it was
executed for bona fide necessity but because
of the passage of time we direct that the
respondents shall pay a sum of Rs 5 lakhs in
addition to Rs 1,10,000 as out of Rs
1,20,000, Rs 10,000 has already been paid
as advance. On receipt of Rs 1,10,000 and
Rs 5 lakhs (Rs 6,10,000) the appellants shall
execute the sale deed for the property in
question."
8.
I am in agreement with this
contention that if litigation has prolonged for
about 25 years or so, then equity should be
considered so that any party may not be
prejudiced without sufficient reason. The
citation as above discussed the agreement
executed between the parties for almost 25
years but in present matter this is not a case.
In present matter the registered agreement to
3 All.
Smt. Chandrawati @ Chandri & Anr. Vs. State of U.P. & Ors.
1453
sell was executed on 25.06.2005 and it was
agreed between the parties and within one
year the registered sale deed would be
executed. Since then plaintiffs/respondents is
showing his eagerness and willingness to get
the said contract executed. Earlier he had
sent several notices before the lapse of period
of one year. Thereafter he again sent notice
for specific performance of said agreement to
sell. On the other hand defendants/
respondents had been ignoring those notices
and taking undue benefit of their possession
and had been delaying the matter. It is
pertinent to mention that no plea of the
escalation of value of property was taken by
the defendants/appellants either in their
written statement or in first appeal. In fact no
such plea was raised by the appellants in first
appeal and its plea has suddenly been taken
directly in second appeal before this court.
Rule-2 of Order XLI CPC provides for the
grounds which may be taken in appeal. It
lays down that 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.
Therefore this reason also the new plea of the
escalation of value of property should be
permitted to be taken directly in second
appeal. In absence of such plea before first
appellate court, appellant had no right to
argue on this point even before first appellate
court then permitting him on such point in
second appeal directly for admission of
appeal may cause pre judice to rights of
respondents.
9. On examination of the reasoning
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 based upon proper appreciation of the
entire evidence on record. No perversity
or infirmity is found in the concurrent
findings of fact recorded by the trial cout
that has been affirmed by the first
appellate court to warrant interference in
this appeal. No question of law, much less
a substantial question of law was involved
in the case before this Court. None of the
contentions of the learned counsel for the
appellant- plaintiffs can be sustained.
10. In view of the above, this Court
finds that no substantial question of law
arises in this appeal. The second appeal is
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2015
BEFORE
THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE SHASHI KANT, J.
C..M.W.P. No. 1146 of 2014
Smt. Chandrawati @ Chandri & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Preetpal Singh Rathore, Sri Anil Tiwari
Counsel for the Respondents:
C.S.C., Sri S.K. Tyagi, Sri Shivam Yadav
Land Acquisition Act, 1894, Section-4 and 6
readwith Right to fair compensation &
Transparency
in
Land
Acquisition
Rehabilitation and Resettlement Act, 2013Section 24-Lease back policy of Gramin
Abadi Land-award made 5 years prior to
1/1/14-on
two negative
conditions
of
Section 24-proceeding shall be deemed to
elasped-petition allowed.
Held: Para-14 & 22
14. Thus, it is well settled by various
pronouncements of the Hon'ble Apex