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2026 Supreme(Pat) 255
IN THE HIGH COURT OF JUDICATURE AT PATNA
RAMESH CHAND MALVIYA, J.
Smt. Kiran Singh Wife of Narain Pd. Singh – Appellant
Versus
Sourja Banerjee Son of Late Sandip Banerjee – Respondent
Second Appeal No. 317 of 1997
Decided on : 24-03-2026
For the Appellant :Mr. Nilanjan Chattergee, Advocate Mr. Ujjwal Raj, Advocate Mr. Sahil Kumar, Advocate Mr. Anirvan Chaudhary, Advocate Mr. Jyoti Prakash, Advocate
For the Respondent:Mr. Md. Nadim Seraj, Advocate Mr. Sunil Kumar Mandal, Advocate Mr. Muqtadin Ahmad, Advocate Mr. Raju Patel, Advocate
Headnote:
Specific Relief Act, 1963 – Section 16(c) – Agreement to sell – Suit seeking decree for specific performance – Findings of Trial Court were reversed by Appellate Court and suit was decreed, granting relief in favour of plaintiff – In a suit for specific performance, burden lies heavily on plaintiff to prove continuous readiness and willingness under Section 16(c) of Specific Relief Act – Payment of consideration must be proved with cogent and convincing evidence – Mere oral assertions, particularly when contradicted on material particulars, cannot substitute proof – Appellants specifically denied receipt of letter – No independent postal official was examined as well as no acknowledgment was produced – Appellate Court treated certificate of posting as conclusive proof, which is legally impermissible – Finding by Appellate Court based on Certificate of Posting is not sustainable – Finding regarding payment is not a mere finding of fact but a finding based on misappreciation of material evidence, thereby attracting interference – Unexplained failure to obtain receipt for a substantial payment is a circumstance fatal to case of respondent – Appellate Court assumed readiness merely because earlier instalments were paid – Acceptance of earlier instalments cannot automatically amount to waiver of final stipulation, particularly when entire balance remained unpaid within time – Judgment and decree dismissing suit restored and confirmed – Second Appeal allowed. (Paras 19, 20, 23, 25, 26, 32 and 34)
Civil Procedure Code, 1908 – Section 100 – Second appeal – Jurisdiction of High Court under Section 100 of CPC is confined to substantial questions of law – High Court does not sit as a Court of re-appreciation of evidence unless findings recorded by Appellate Court are shown to be perverse, based on no evidence, or suffering from a patent error of law – Though Appellate Court is final Court of fact, its findings must be founded upon proper appreciation of evidence and correct application of legal principles – Where Appellate Court reverses a well-reasoned judgment of Trial Court without adequately dealing with core reasoning and material inconsistencies, such findings assume character of perversity and give rise to a substantial question of law under Section 100 CPC. (Paras 11 and 12)
General Clauses Act, 1897 – Section 27 – Indian Evidence Act, 1872 – Section 114 [Illustration (f)] – Certificate of Posting merely raises permissive presumption of posting, not of delivery – Certificate of posting may give rise to a permissive presumption but Court is not bound to draw such presumption, particularly where surrounding circumstances create doubt regarding its genuineness or service – Standard of proof, whether strict proof in quasi-criminal proceedings or preponderance of probabilities in civil matters, does not dilute foundational requirement that fact of service must be established by reliable evidence – Even in civil cases, presumptions under Section 114 are discretionary and rebuttable, and cannot be mechanically invoked to shift burden unless foundational facts are satisfactorily proved – Doctrine of preponderance of probabilities does not convert a weak or doubtful piece of evidence into conclusive proof rather, probabilities must be drawn from credible and cogent material. (Paras 15, 17 and 18)
JUDGMENT :
RAMESH CHAND MALVIYA, J.
1. Heard learned counsel for the appellants as well as learned counsel for the respondent.
2. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) has been filed by the appellants against the judgment and decree rd dated 21.08.1997 passed by learned 3 Additional District Judge, Bhagalpur (hereinafter referred to as ‘Appellate Court’) in Title Appeal No.04 of 1994 wherein learned Appellate Court reversed the judgment and decree dated 31.08.1990 passed by learned Sub Judge-I, Bhagalpur (hereinafter referred to as ‘Trial Court’) in Title Suit No.178 of 1978 holding that the plaintiff (respondent herein) has got no valid cause of action and that she has failed to perform her part of contract.
3. The genesis of the case, as borne out from the pleadings and the materials available on record, is that the plaintiff/respondent instituted Title Suit No. 178 of 1978 seeking a decree for specific performance of an agreement for sale dated 07.07.1974 in respect of the suit property situated at Mohalla Adampur, Bhagalpur, and, in the alternative, for a declaration that the registered sale deed dated 21.07.1973 executed in favour of defendant no.1 (appellant no.1) did not confer valid title upon her, along with recovery of possession. The case of the plaintiff, in substance, was that owing to financial distress and outstanding dues of the Central Bank of India, she obtained a sum of Rs. 30,000/- from defendant no.2 (appellant no.2) and, as security for the said loan, executed a registered sale deed dated 21.07.1973 in favour of defendant no.1, though the transaction was never intended to be an absolute sale. It was further pleaded that she continued in possession of the suit property and that subsequently, on 07.07.1974, an agreement for re-conveyance was executed whereby the defendants (appellants) agreed to transfer the property back to her on receipt of the stipulated consideration. It has further been asserted that the respondent paid the consideration amount in installments, including a lump sum payment (Rs.15,000/-) towards the last four installments and stamp expenses in August, 1975, but despite such payment the defendants failed to execute the re-conveyance deed and ultimately dispossessed her forcibly on 30.10.1975. The defendants, however, contested the suit by asserting that the sale deed dated 21.07.1973 was an out and out sale for valid and adequate consideration, that possession had been delivered on the date of execution itself, that the plaintiff failed to perform the terms of the alleged agreement dated 07.07.1974 within the stipulated time, and that the story of mortgage and subsequent dispossession was wholly false.
4. Upon service of summons, both the defendants (appellants herein) appeared and filed their separate written statements, contesting the claim of the plaintiff in toto. It was stated that the suit, as framed, was not maintainable as the plaintiff had no valid cause of action. It was further stated that the suit was barred by limitation, estoppel and principles of acquiescence, besides being bad for misjoinder of parties. It was specifically stated that the registered sale deed dated 21.07.1973 executed in favour of defendant no.1 was an out and out sale for valuable and adequate consideration of Rs. 30,000/-, and not a mortgage or security transaction as alleged. The defendants asserted that possession of the suit property was delivered to defendant no.1 on the date of execution of the sale deed itself, and thereafter her name was duly mutated in the municipal and revenue records and she had been exercising rights of ownership over the property. The alleged agreement for sale dated 07.07.1974 was either denied or, in the alternative, it was contended that the plaintiff had failed to perform her part of the contract within the stipulated time and had not paid the balance consideration as required under the terms thereof. The
