IMPORTANT POINT
High Court was not right in setting aside the concurrent decision of courts below on recording a finding that the alterations found to have been made in the agreement of sale by introducing two marginal witnesses was a material alteration of the document.

Headnote:Transfer of Property Act, 1882-Section 41-Specific Relief Act, 1963 -Sections 19 and 20-C.P.C., 1908-Section 100-Suit for specific performance-Decreed by courts below-High Court in Second Appeal set aside concurrent finding of courts below on recording a finding that the alterations found to have been made in the agreement of sale by introducing two marginal witnesses was a material alteration of the document-Whether correct? (No, it is based on surmises)-Appeal allowed.
Held : It has not been held by the High Court and indeed it was also not contended before us that the agreement of sale, as it stood originally, was invalid for any reason. Indeed the position is accepted that the document did not require any marginal witnesses for validity in law. All that has been observed by the High Court is that the covenantees, appellants herein, might have had an apprehension that as the marginal witnesses in the original document were persons closely related to them the Court may not readily accept the case of the plaintiffs regarding the agreement of sale; therefore, they subsequently introduced two independent persons as marginal witnesses in the document which amounted to interpolating with the documents. We find from the discussions in the judgment of the trial Court and the first appellate Court that the question of addition of marginal witnesses in the document after its execution was considered by the Courts and was not believed. The observations of the first appellate Court quoted by the High Court in the impugned judgment were mere observations which, as the judgment shows, was not taken as a substantial matter against the credibility and acceptability of the case of the plaintiffs in Civil Suit. No. 58 of 69. As noted earlier, the trial Court and the first appellate Court had concurrently accepted the case of the plaintiff s in C.S.No.58 of 69 and had rejected the case of the plaintiffs in C.S.No.58 of 71. The Courts in exercise of the discretionary jurisdiction vested in them under Section 20 of the Specific Relief Act had decreed the suit for specific performance of the agreement of sale. The High Court in the impugned judgment has not discussed any legality by the courts below in taking the decision. It appears that the High Court has decided the second appeal on a question neither taken in the memorandum of appeal nor taken in that form before the courts below and has upset the concurrent decisions of the courts on a finding recorded by it. The approach of the High Court in the second appeal was clearly against the law and spirit of Section 100 of the Code of Civil Procedure. Further, as discussed earlier, the view taken by the High Court that the interpolation said to have been made by the covenantees in the agreement of sale does not stand scrutiny under law. As observed earlier such alteration, assuming that it was made subsequently, did not bring about any change in the validity and enforceability of the agreement of sale. We are constrained to observe that the finding recorded by the High Court appears to be based on surmise. Therefore, the judgment is clearly unsustainable. Accordingly, the appeals are allowed with costs. The common judgment and decree passed by the High Court on 24th September, 1996 in Second Appeal Nos. 1974 of 1978 and 1975 of 1978 is set aside and the judgment and decree passed by the First Additional District Judge, Mathura in Appeal Nos. 3-4 of 1975 confirming the judgment and decree in Suit Nos. 58 of 1969 and 58 of 1971 is restored. The appellants shall be entitled to a sum of Rs. 20,000/- as hearing fee from the respondents. (Paras 16 and 17)

JUDGMENT

D.P. Mohapatra, J.-The judgment dated 24.9.1996 passed by the High Court of Allahabad in Second Appeal Nos. 1974/78 and 1975/78, is under challenge in these appeals filed by Ram Khilona, Charni, Smt. Kishni W/o Ratni, Hari Ram @ Harbans s/o Ratni, Smt. Mukhtary w/o Buddhi, Sher Singh s/o Buddhi, Shyam Lal s/o Buddhi and Praye Lal s/o Het Ram, against Sardar and Sher Singh, sons of Kanha Jaat, Nehal Singh s/o Todar and Ram Khilari s/o.Todar (deceased) by his Legal Representatives Veerpal and Khemo.

2. In the impugned judgment the High Court allowed the appeals and set aside the judgment and decree passed by the Courts below. The operative portion of the judgment reads :

"In the result, both the appeals succeed and are accordingly allowed. The judgment and decree passed by the courts below in both the suits are accordingly set aside. Suit No. 58 of 69 which was filed by covenators for specific performance of the agreement deed (Ext.12) is dismissed with costs throughout whereas suit No. 58 of 71 which had been filed for declaration of the rights of the vendees over the land in suit is decreed with costs throughout. The vendees are accordingly declared owners of the land in suit by virtue of the sale deed which was executed by the vendors transferring the land in suit in their favour on 7.5.69."

3. The factual back drop of the case leading to the present proceeding may be stated thus :

The appellants herein filed suit No. 58/1969 in the Court of the Civil Judge, Mathura against the respondents herein seeking the following main relief :

"(A) That the suit of the plaintiffs for specific performance of the contract for sale on the basis of agreement for sale dated 19.4.1969 be declared in favour of the plaintiffs and against the defendants, and it be directed in the decree that all the defendants shall execute the sale deed in favour of the petitioners after taking Rs.2,000/-(balance), in respect of the land details whereof have been given at the foot of this plaint, and in case, they do not execute the sale deed within the time given by the Court, the court may executed the sale deed, in favour of the plaintiffs.

(B) That the defendants be ordered by means of injunction that they shall not interfere in the possession of the plaintiffs over the land details whereof are given at the foot of this plaint and shall not take the land in their own possession after dispossessing the plaintiffs."

4. The case leaded by the plaintiffs was that defendants 1 & 2 entered into an agreement for sale of the suit land measuring 23.83 acres situated in village Khitawata, Tehsil Chhata, District Mathura, U.P. on 19.4.1969 for a consideration of Rs. 14,000/-. The plaintiffs paid Rs. 12,000/- to the defendants 1 and 2 at the time of the execution of the agreement for sale. In pursuance of the said agreement the defendants 1 and 2 put the plaintiffs in possession of the suit property and they continued with the possession by carrying on agricultural activities on the land. Despite several reminders defendants 1 and 2 did not execute the sale deed in favour of the plaintiffs. Subsequently, the plaintiffs came to know that defendants 3 and 4 had got a sale deed executed in their favour from defendants 1 and 2 in respect of the same property in a clandestine manner on 7.5.1969 without the knowledge of the plaintiffs. The plaintiffs asserted in para 7 of the plaint that they had been and were ready and willing to get the sale deed executed from the defendants 1 and 2 after paying the balance amount of sale consideration.

5. Since the defendants 1 and 2 failed to keep their promise for sale of the suit land to the plaintiffs the later had to file the suit seeking reliefs noted above. The defendants 1 and 2 filed their written statement refuting averments made by the plaintiffs in the plaint. It was their case that they had sold the suit land to defendants 3 and 4 on 7.5.1969 for Rs. 15,000/-. It was their further case that on that date they were in p

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2002 Supreme(SC) 689

IMPORTANT POINTHigh Court was not right in setting aside the concurrent decision of courts below on recording a finding that the alterations found to have been made in the agreement of sale by introducing two marginal witnesses was a material alteration of the document.

Cases Referred (2)

IMPORTANT POINT
High Court was not right in setting aside the concurrent decision of courts below on recording a finding that the alterations found to have been made in the agreement of sale by introducing two marginal witnesses was a material alteration of the document.