Smt. Kiran SinghversusSmt. Anjushree Banerjee

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                           SECOND APPEAL No.317 of 1997
     ======================================================
1.    Smt. Kiran Singh Wife of Narain Pd. Singh, resident of Barabandh, P.S.
      Khaira, District Monghyr, presently residing at Adampur, P.S. Barari,
      District- Bhagalpur.
2.1. Vineet Kumar Singh S/o Late Narain Prasad Singh, Y-195, Regency Park- 2,
     DLF Phase 4 Nathupur (67), Nathupur, Farrukhnagar, Gurgoan, Haryana.
2.2. Shashwat Kumar Singh, S/o Late Narain Prasad Singh, Y-195, Regency
     Park- 2 Galeria DL T IV, Galeria IV, Gurgoan, Haryana- 122002.
2.3. Richa Singh, D/o Late Narain Prasad Singh, C/o Ravi Shankar, F-73, 1st
     Floor, Suncity, Sect- 54 Chakarpur (74) Chakarpur Gurgoan, Haryana-
     122002.

                                                               ... ... Appellant/s
                                       Versus
     Sourja Banerjee Son of Late Sandip Banerjee, resident of Panchanantala
     Road, Ghoshpara, Police Station - Maheshtala, District- South 24, Parganas,
     West Bengal.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Appellant/s    :      Mr. Nilanjan Chattergee, Advocate
                                   Mr. Ujjwal Raj, Advocate
                                   Mr. Sahil Kumar, Advocate
                                   Mr. Anirvan Chaudhary, Advocate
                                   Mr. Jyoti Prakash, Advocate
     For the Respondent/s   :      Mr. Md. Nadim Seraj, Advocate
                                   Mr. Sunil Kumar Mandal, Advocate
                                   Mr. Muqtadin Ahmad, Advocate
                                   Mr. Raju Patel, Advocate
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
     MALVIYA
                        CAV JUDGMENT
      Date : 24-03-2026


                   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
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         dated 21.08.1997 passed by learned 3rd 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
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         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
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         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 plea of

         continued possession and forcible dispossession on 30.10.1975

         was categorically denied, and it was contended that the entire

         story of mortgage, re-conveyance and dispossession was false,

         concocted and instituted only to harass the defendants.

                      5. On the basis of the pleadings of the parties, the

         learned Trial Court framed following issues for determination:
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                                  (i) Is the suit as framed maintainable?
                                  (ii) Has the plaintiff got any cause of action
                                  for the suit?
                                  (iii) Is the suit bad for mis-joinder of the
                                  parties?
                                  iv) Is the suit barred by law of limitation,
                                  rule of estoppel and principle of
                                  acquiescence?
                                  (v) Has the plaintiff sold the suit property to
                                  the defendant no.1 for a valuable
                                  consideration through the registered sale
                                  deed dated 21.07.1973 or pledged the same
                                  as security to the alleged loan of
                                  Rs,30,000/-?
                                  (vi) Was time an essence of the contract for
                                  sale?
                                  (vii) Was the plaintiff dispossessed forcibly
                                  from the suit property by defendant no.1 and
                                  2?
                                  (viii) Has the plaintiff paid the entire amount
                                  of Rs.36,001/- to the defendant no.1?
                                  (ix) Has the plaintiff any right, title and
                                  possession over the suit land?
                                  (x) Is the plaintiff entitled to a decree, as
                                  prayed for?
                                  (xi) To what relief or reliefs, if any, is the
                                  plaintiff entitled to?
                      6. Considering the facts and circumstances of the

         case, submissions of the parties and on perusal of the materials

         available on record, the learned Trial Court came to the

         conclusion that the plaintiff had failed to establish that the

         registered sale deed dated 21.07.1973 was a mere security
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         transaction and not an absolute sale. Learned Trial Court held

         that the document, being a registered instrument carrying a

         presumption of validity, clearly evidenced the transfer of title

         for valuable consideration, and there was no cogent material to

         rebut the same. It was further held that the plaintiff had not been

         able to prove payment of the entire consideration amount under

         the alleged agreement for re-conveyance dated 07.07.1974 nor

         her continuous readiness and willingness to perform her part of

         the contract within the stipulated time. The plea of continued

         possession and subsequent forcible dispossession was also

         disbelieved. Based on the above findings, the learned Trial

         Court dismissed the suit, holding that the plaintiff was not

         entitled to the reliefs of declaration, specific performance or

         recovery of possession.

                      7. Aggrieved by the judgment and decree of dismissal

         passed by the learned Trial Court, the plaintiff preferred Title

         Appeal No.04 of 1994 before the learned Appellate Court. The

         learned Appellate Court, being the final court of facts, re-

         appreciated the entire oral and documentary evidence on record

         and came to a different conclusion. It held that the surrounding

         circumstances indicated that the transaction dated 21.07.1973

         was not intended to be an out and out sale but was executed in
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         the backdrop of financial distress, and that the agreement dated

         07.07.1974 for re-conveyance was duly proved. The learned

         Appellate Court further found that the plaintiff had established

         payment of consideration and her readiness and willingness to

         perform her part of the contract. Consequently, the findings of

         the learned Trial Court were reversed and the suit was decreed,

         granting relief in favour of the plaintiff.

                      8. Being aggrieved by the judgment and decree passed

         by the learned Appellate Court, the defendants have preferred

         the present Second Appeal. The appeal was admitted to hearing

         on formulation of substantial question(s) of law as required

         under Section 100 of the CPC. The substantial question(s) of

         law raised before this Court are as under:

                                  (A) Whether the despatch of letter i.e. Ext.1
                                  by certificate of posting has any evidentary
                                  value in view of the law laid down by the
                                  Hon'ble Supreme Court in AIR 1994 SC
                                  678?
                                  (B) Whether a despatch of a letter under
                                  certificate of posting only raises a
                                  presumption of posting and nothing more?
                                  (C) Whether in absence of any receipt of
                                  payment of Rs.15,000/- and the facts and
                                  circumstances of the case the appellant court
                                  erred in believing the alleged payment
                                  (D) Whether the evidence of the plaintiff and
                                  her witnesses ought not to have been
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                                  rejected in view of the material and serious
                                  contradictions with regard to the date, time
                                  & place of payment to the Appellants ?
                                  (E) Whether in the facts and circumstances
                                  of the case, Ext. 1 was an engineered
                                  document in as much as the date of payment
                                  of the remaining 4 instalments was
                                  mentioned in the said document but it was
                                  never pleaded in the plaint nor mentioned in
                                  the evidence as to when the payment was
                                  made to the defendant?
                                  (F) Whether Ext. 1 could have been admitted
                                  as a document in view of the fact that the
                                  said original letter was filed as Ext. 1 in the
                                  court and also sent to the appellant-
                                  defendant no. 1?
                                  (G) Whether in a case a witness who has not
                                  been confronted with a letter which is
                                  alleged to be sent to her/him and in the
                                  absence of any evidence on the part of the
                                  said witness with regard to receipt of the
                                  said letter suo-moto can be treated as
                                  admission of the document more so when the
                                  contents of the letter are categorically
                                  denied in the pleadings as well as in
                                  evidence?
                                  (H) Whether a plaintiff/party who sets up a
                                  false case before the court of being
                                  dispossessed should be refused the relief of
                                  specific performance under Section 20 of the
                                  Specific Relief Act, 1963?
                                  (I) Whether in the facts and circumstances of
                                  the case the finding of the Appellate court on
                                  the point alleged payment is sustainable in
                                  law without considering all the reasoning
                                  given by the trial court?
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                                  (J) Whether in view of clause-8 and 9 of the
                                  agreement for sale dated 7th July, 1974 the
                                  Appellate Court could have passed a decree
                                  for specific performance of contract without
                                  clarifying if the plaintiff was entitled to
                                  Rs.39,000/- instead of Rs.24,000/- as
                                  allowed by court below?
                                  (K) Whether a decree for specific
                                  performance of an agreement can be granted
                                  by a court when the purchaser does not offer
                                  to make the payment/ or fails to make
                                  payment in accordance with the time
                                  schedule under the terms of the agreement
                                  when time is the essence of the agreement?
                      9. Learned counsel for the appellants assailed the

         impugned judgment and decree of the learned Appellate Court

         as being contrary to law and the evidence on record. It is

         submitted that the Appellate Court, while exercising jurisdiction

         as the final court of fact, failed to discharge its statutory duty of

         closely scrutinizing and dealing with the reasoning of the

         learned Trial Court before reversing its well-considered

         findings. Learned counsel submitted that the learned Trial Court

         had meticulously appreciated the both oral and documentary

         evidence and had rightly concluded that the registered sale deed

         dated 21.07.1973 was an absolute transfer for valuable

         consideration. It is further submitted that the learned Appellate

         Court reversed the said findings on conjectures and surmises,

         without assigning cogent reasons for discarding the presumption
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         attached to a registered instrument. Furthermore, the learned

         Appellate Court reversed this foundational finding without

         meeting the learned Trial Court reasoning “in close quarters”, as

         required in law, and disregard the principles laid down by

         Hon’ble Apex Court in Madhusudan Das v. Narayani Bai,

         reported in (1983) 1 SCC 35.

                      9.i. Learned counsel for the appellants further

         submitted that the plaintiff’s plea that the registered sale deed

         was merely a security transaction is legally untenable and

         contrary to the bar under Section 92 of the Evidence Act. It is

         submitted that once the terms of a registered document are clear

         and unambiguous, they cannot be contradicted by oral assertions

         unless supported by cogent and convincing evidence of a very

         high degree. It is further submitted that the burden to prove that

         a transaction, though absolute in form, was in substance a

         mortgage or security, lies heavily upon the person asserting it.

         Learned counsel submitted that in the present case, no reliable

         evidence was adduced to establish that the consideration of Rs.

         30,000/- was in fact a loan or that the parties intended anything

         other than an outright sale, and the learned Appellate Court

         erred in law in diluting this settled burden of proof. It is further

         submitted that the learned Appellate Court erred in law in
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         ignoring the settled principle that the burden to prove that a

         document, though absolute in form, was in reality a mortgage or

         security transaction, lies heavily upon the person asserting so.

                      9.ii. Learned counsel for the appellant further

         submitted that, argumenti causa, even if the agreement for re-

         conveyance dated 07.07.1974 is assumed to be genuine, the

         plaintiff (respondent) was required to strictly prove continuous

         readiness and willingness to perform her part of the contract, as

         mandated for a decree of specific performance. It is submitted

         that the entire case of the respondent hinges upon the alleged

         payment of Rs. 15,000/-, which admittedly remains unreceipted,

         despite all earlier installments having been duly acknowledged.

         The learned Trial Court, upon proper appreciation of evidence,

         found that the plaintiff had failed to prove such payment and

         that the evidence suffered from material contradictions

         regarding the date, manner, and persons involved in the alleged

         transaction. Learned counsel submitted that these contradictions,

         going to the root of the claim, could not have been brushed

         aside as minor discrepancies, in view of the principles laid down

         in Sarju Pershad v. Raja Jwaleshwari Pratap Narain Singh,

         reported in AIR 1951 SC 120 and the settled distinction between

         minor inconsistencies and material contradictions.
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                      9.iii. Learned counsel for the appellants further

         submitted that the reliance placed by the learned Appellate

         Court on Exhibit-1, namely a letter sent under certificate of

         posting, is wholly misconceived in law. It is submitted that such

         a document does not carry any statutory presumption of service

         under Section 27 of the General Clauses Act, as held by the

         Hon’ble Apex Court in L.M.S. Ummu Saleema v. B.B. Gujaral

         and Anr., reported in AIR 1981 SC 1191, and at best gives rise

         to a weak and discretionary presumption under Section 114 of

         the Evidence Act, which cannot be invoked in a disputed case.

         Learned counsel has also placed reliance on the judgment of the

         Hon’ble Apex Court in Samittri Devi and Anr. v. Sampuran

         Singh and Anr., reported in (2011) 3 SCC 556, wherein it has

         been held that such presumption is not mandatory and depends

         upon surrounding circumstances. It is submitted that the learned

         Appellate Court erred in treating Exhibit-1 as unimpeachable

         proof and using it to override material contradictions, thereby

         effectively converting a weak piece of evidence into conclusive

         proof of payment.

                      9.iv. Learned counsel for the appellants next

         submitted that the findings of the learned Appellate Court

         regarding possession and alleged dispossession are equally
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         unsustainable. It is submitted that possession was delivered to

         defendant no.1/respondent no.1 at the time of execution of the

         registered sale deed itself, and subsequent mutation and acts of

         ownership corroborate the defence case. It is submitted that the

         learned Appellate Court, however, misdirected itself by placing

         undue reliance on interested and inconsistent oral testimony

         while      ignoring      documentary       evidence    and      surrounding

         circumstances, thereby rendering its findings perverse.

                      9.v. In sum and substance, learned counsel for the

         appellants submitted that the impugned judgment of the learned

         Appellate Court suffers from perversity in appreciation of

         evidence,       misapplication        of   legal   principles    governing

         interpretation of registered documents, and improper exercise of

         jurisdiction in reversing the well-reasoned findings of the

         learned Trial Court. It is, therefore, submitted that the judgment

         and decree of the learned Appellate Court be set aside and that

         the judgment of the learned Trial Court dismissing the suit be

         restored.

                      10. Per contra, learned counsel for the respondent

         supported the impugned judgment and decree of the learned

         Appellate Court and submitted that the same does not suffer

         from any illegality or perversity warranting interference under
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         Section 100 of the CPC. It is submitted that the learned

         Appellate Court, being the final Court of fact, has thoroughly re-

         appreciated the entire oral and documentary evidence on record

         and has recorded a categorical finding that the plaintiff had

         proved payment of the balance consideration amount of

         Rs.15,000/- and had established her continuous readiness and

         willingness to perform her part of the contract. Learned counsel

         further submitted that such findings are pure findings of fact

         based on evidence and cannot be reopened in second appeal

         unless shown to be perverse or based on no evidence, which is

         not the case herein.

                      10.i. Learned counsel for the respondent further

         submitted that the entire transaction between the parties clearly

         demonstrated that the registered sale deed dated 21.07.1973,

         though absolute in form, was executed in the background of

         financial distress and was followed by a registered agreement

         for     re-conveyance          dated      07.07.1974   (Ext.2),   which

         unequivocally reflected the intention of the parties that the

         property would be returned to the plaintiff/respondent on

         repayment of the stipulated amount. The plaintiff admittedly

         paid eight instalments, and the dispute is confined only to the

         last lump sum payment made in August, 1975. It is submitted
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         that the learned Appellate Court, upon appreciation of the oral

         testimony of PW-1, PW-3 and PW-8 and Ext. 1 (letter dated

         25.09.1975) along with Ext. 4 (certificate of posting), accepted

         the plaintiff’s explanation regarding payment and the absence of

         a formal receipt in view of the cordial relations between the

         parties. It is, moreover, submitted that minor inconsistencies as

         to the exact date or accompanying persons do not go to the root

         of the matter and were rightly ignored by the learned Appellate

         Court.

                      10.ii. Learned counsel for the respondent further

         submitted that the objection regarding evidentiary value of the

         letter sent under certificate of posting is misconceived. Ext.1

         was duly proved and marked without objection, and the carbon

         copy thereof was admissible in evidence as secondary evidence

         since the original was dispatched to the defendant. It is

         submitted that under Section 114 of the Evidence Act, a

         presumption arises regarding due service of a letter sent in the

         ordinary course of post, and the defendants having merely

         denied receipt without leading any convincing rebuttal evidence,

         the presumption remained unrebutted. It is also urged that the

         plea that time was the essence of the contract is untenable in

         contracts relating to immovable property, and in any event, the
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         respondents having accepted earlier instalments without protest,

         had waived strict adherence to the time schedule.

                      10.iii. In support of his submissions, learned counsel

         for the respondent placed reliance upon the decisions of the

         Hon’ble Supreme Court in Kondiba Dagadu Kadam v.

         Savitribai Sopan Gujar and Ors., reported in (1999) 3 SCC

         722, to contend that the High Court cannot interfere with

         findings of fact recorded by the first appellate court unless the

         same are perverse; Chand Rani v. Kamal Rani, reported in

         (1993) 1 SCC 519, to submit that time is ordinarily not the

         essence in contracts for sale of immovable property;

         Gomathinayagam Pillai and Ors. v. Palaniswami Nadar,

         reported in (1967) 1 SCR 227, on the principle of waiver of

         stipulation as to time; Samittri Devi and Anr. v. Sampuran

         Singh and Anr., reported in (2011) 3 SCC 556 and L.M.S.

         Ummu Saleema v. B.B. Gujaral and Anr., reported in AIR

         1981 SC 1191, regarding the presumption arising from postal

         communication; and K. Narendra v. Riviera Apartments (P)

         Ltd., reported in (1999) 5 SCC 77, to submit that specific

         performance is the rule and refusal is an exception, and hardship

         foreseeable at the time of contract cannot defeat relief. On the

         strength of these authorities, it is submitted that the impugned
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         judgment does not raise any substantial question of law and the

         second appeal deserves dismissal.

                      11. Having heard the learned counsel for the parties at

         length and having perused the pleadings, evidence on record and

         the judgments of the learned Trial Court and the learned

         Appellate Court, this Court now proceeds to examine the

         substantial question(s) of law framed at the time of admission of

         the present Second Appeal. It is well settled that the jurisdiction

         of this Court under Section 100 of the CPC is confined to

         substantial questions of law, and this Court does not sit as a

         Court of re-appreciation of evidence unless the findings

         recorded by the Appellate Court are shown to be perverse, based

         on no evidence, or suffering from a patent error of law. Though

         the Appellate Court is the final Court of fact, its findings must

         be founded upon proper appreciation of evidence and correct

         application of legal principles. If the conclusions are arrived at

         by ignoring material evidence, misapplying settled principles

         governing proof, or by drawing inferences not supported by the

         record, such findings assume the character of perversity, thereby

         inviting interference under Section 100 of the CPC. The issues

         raised by the appellants, therefore, are required to be tested

         within the limited scope of interference permissible in Second
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         Appeal.

                      12. At the outset, it is well settled that though the

         Appellate Court is the final Court of fact, its findings must be

         based on proper appreciation of evidence and sound legal

         principles. Where the Appellate Court reverses a well-reasoned

         judgment of the learned Trial Court without adequately dealing

         with the core reasoning and material inconsistencies, such

         findings assume the character of perversity and give rise to a

         substantial question of law under Section 100 CPC. In Santosh

         Hazari v. Purushottam Tiwari, reported in (2001) 3 SCC 179,

         the Hon’ble Supreme Court has held that reversal of findings

         must reflect conscious application of mind to the reasoning of

         the Trial Court, however, mere substitution of conclusions is

         impermissible.

                      13. This Court also takes note of the judgments relied

         upon by learned counsel for the appellants in support of their

         submissions. Reliance has been placed on Madhusudan Das v.

         Narayani Bai (supra) to submit that an Appellate Court, while

         reversing findings of the Trial Court, must assign cogent reasons

         and cannot disregard material evidence or substitute its own

         conclusions without proper analysis. Similarly, reliance has been

         placed on Sarju Pershad v. Raja Jwaleshwari Pratap Narain
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         Singh (supra) to emphasize that findings of the Trial Court

         based on appreciation of oral evidence and witness credibility

         are entitled to due weight and should not be lightly interfered

         with. Further reliance on Nathulal v. Phoolchand, reported in

         (1969) 3 SCC 120 has been made to submit that in a suit for

         specific performance, the plaintiff must establish readiness and

         willingness along with financial capacity and actual tender of

         consideration. The appellants have also relied upon Samittri

         Devi v. Sampuran Singh (supra) and L.M.S. Ummu Saleema v.

         B.B. Gujaral (supra) to put across that presumption arising

         from certificate of posting is merely permissive and cannot be

         treated as conclusive proof of service or payment. The

         principles emerging from the aforesaid decisions are well settled

         and have been kept in view while appreciating the issues

         involved in the present case.

                      14. It is pertinent to mention here that the general rule

         is that the Appellate Court should permit the finding of fact

         rendered by the Trial Court to prevail unless the Trial Court fails

         to consider the evidence and materials on record to reach on the

         said finding and the same is improbable. The Hon’ble Supreme

         Court in Madhusudan Das v. Narayanibai (supra) has held

         that:
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                                “8. In an appeal against a trial court
                                decree, when the appellate court considers
                                an issue turning on oral evidence it must
                                bear in mind that it does not enjoy the
                                advantage which the trial court had in
                                having the witnesses before it and of
                                observing the manner in which they gave
                                their testimony. When there is a conflict of
                                oral evidence on any matter in issue and its
                                resolution turns upon the credibility of the
                                witnesses, the general rule is that the
                                appellate court should permit the findings
                                of fact rendered by the trial court to prevail
                                unless it clearly appears that some special
                                feature about the evidence of a particular
                                witness has escaped the notice of the trial
                                court or there is a sufficient balance of
                                improbability to displace its opinion as to
                                where the credibility lies. The principle is
                                one of practice and governs the weight to
                                be given to a finding of fact by the trial
                                court. There is, of course, no doubt that as
                                a matter of law if the appraisal of the
                                evidence by the trial court suffers from a
                                material irregularity or is based on
                                inadmissible evidence or on a misreading of
                                the evidence or on conjectures and surmises
                                the appellate court is entitled to interfere
                                with the finding of fact.”
                      15. So far as the evidentiary value of Ext.1 (certificate

         of posting) is concerned in the given case, it holds a significant

         value as to infer the acknowledgement of payment. It is clarified

         that a certificate of posting merely raises a permissive

         presumption of posting, not of delivery. The Hon’ble Supreme

         Court in L.M.S. Ummu Saleema (supra) has held as under:
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                                  “6. ……..We are satisfied that the alleged
                                  letter of retraction was only a myth. The
                                  certificate of posting might lead to a
                                  presumption that a letter addressed to the
                                  Assistant Collector of Customs was posted
                                  on August 14, 1980 and in due course
                                  reached the addressee. But, that is only a
                                  permissible and not an inevitable
                                  presumption. Neither Section 16 nor
                                  Section 114 of the Evidence Act compels
                                  the court to draw a presumption. The
                                  presumption may or may not be drawn. On
                                  the facts and circumstances of a case, the
                                  court may refuse to draw the presumption.
                                  On the other hand the presumption may be
                                  drawn initially but on a consideration of
                                  the evidence the court may hold the
                                  presumption rebutted and may arrive at the
                                  conclusion that no letter was received by
                                  the addressee or that no letter was ever
                                  despatched as claimed. After all, there have
                                  been cases in the past, though rare, where
                                  postal certificates and even postal seals have
                                  been manufactured. In the circumstances of
                                  the present case, circumstances to which we
                                  have already referred, we are satisfied that
                                  no such letter of retraction was posted as
                                  claimed by the detenu.”
                                   (emphasis supplied)
                      16. At the outset, it is significant to reproduce Section

         27 of the General Clauses Act, 1897 and Section 114

         [Illustration (f)] of the Evidence Act, 1872. They are reproduce

         respectively, hereinunder:

                                   “27. Meaning of service by post.—Where
                                   any 2 [Central Act] or Regulation made
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                                   after the commencement of this Act
                                   authorizes or requires any document to be
                                   served by post, whether the expression
                                   “serve” or either of the expressions “give”
                                   or “send” or any other expression is used,
                                   then, unless a different intention appears,
                                   the service shall be deemed to be effected
                                   by properly addressing, pre-paying and
                                   posting by registered post, a letter
                                   containing the document, and, unless the
                                   contrary is proved, to have been effected at
                                   the time at which the letter would be
                                   delivered in the ordinary course of post.”
                                   “114. Court may presume existence of
                                   certain facts. – The Court may presume the
                                   existence of any fact which it thinks likely to
                                   have happened, regard being had to the
                                   common course of natural events, human
                                   conduct and public and private business, in
                                   their relation to the facts of the particular
                                   case.
                                   xxxx xxxx xxxx
                                   (f) that the common course of business has
                                   been followed in particular cases;…..”
                      17. The position to be inferred under Section 27 of the

         General Clauses Act is that it embodies a rebuttable

         presumption of service only when a document is properly

         addressed, prepaid and sent by registered post, and even then the

         presumption is not conclusive but subject to proof to the

         contrary. In the present case, the alleged communication was

         sent merely under certificate of posting and not by registered

         post with acknowledgment due. A certificate of posting, by
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         itself, merely evidences dispatch and does not raise an inevitable

         presumption of delivery. The Hon’ble Supreme Court in

         Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb

         Vikhe Patil and Ors., reported in (1994) 1 SCC 682; AIR 1994

         SC 678, categorically held that a certificate of posting may give

         rise to a permissive presumption but the court is not bound to

         draw such presumption, particularly where surrounding

         circumstances create doubt regarding its genuineness or service.

                      18. The submission advanced on behalf of the

         respondent that          the decision in   Gadakh Yashwantrao

         Kankarrao (supra), is inapplicable on the ground that it arose

         out of an election petition and that in civil cases the doctrine of

         preponderance of probabilities prevails, does not merit

         acceptance. The principle laid down in Gadakh Yashwantrao

         Kankarrao (supra) is not confined to election jurisprudence but

         pertains to the nature and scope of presumption arising from a

         certificate of posting under Section 114 of the Evidence Act.

         The Hon’ble Supreme Court therein clarified that such

         presumption is merely permissive and not mandatory, and that

         courts must be cautious in acting upon certificates of posting,

         which are susceptible to easy procurement. The standard of

         proof, whether strict proof in quasi-criminal proceedings or
Patna High Court SA No.317 of 1997 dt.24-03-2026
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         preponderance of probabilities in civil matters, does not dilute

         the foundational requirement that the 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 the

         burden unless foundational facts are satisfactorily proved. The

         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.

                      19. In the present case, the appellants specifically

         denied receipt of the letter. No independent postal official was

         examined as well as no acknowledgment was produced. The

         learned Appellate Court treated the certificate of posting as

         conclusive proof, which is legally impermissible. Moreover,

         reliance put by the respondent on Samittri Devi (supra) and

         L.M.S. Ummu Saleema (supra) does not advance the present

         case, as those decisions clearly state that presumption is not

         inevitable and may be refused where circumstances create

         doubt. In the present case, the surrounding circumstances, such

         as, absence of receipt, denial by appellants, and contradictions

         in the testimony, clearly rebut such presumption. Also, the

         presumption under Section 114 of the Evidence Act is
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         discretionary and rebuttable. In view thereof, this Court finds

         that such reliance is legally erroneous and the finding by the

         learned Appellate Court based on Certificate of Posting (Ext.1)

         is not sustainable.

                      20. Now, it is significant to examine the central issue

         in the present case which relates to the alleged payment of the

         balance sum of Rs.15,000/- said to have been made in lump sum

         in August 1975 by the respondent. Admittedly, no receipt was

         issued for such a substantial amount. The learned Appellate

         Court accepted the explanation of “friendly relations” and

         treated the absence of receipt as inconsequential. The learned

         Appellate       Court,     however,       brushed   aside   the   material

         inconsistencies as “minor discrepancies” without analysing their

         impact. The finding regarding payment, therefore, is not a mere

         finding of fact but a finding based on misappreciation of

         material evidence, thereby attracting interference.

                      21. The reliance placed by the respondent on Kondiba

         Dagadu Kadam (supra) is misplaced. The said decision restricts

         interference where findings are based on evidence. It has been

         held as under:

                                   “5. It is not within the domain of the High
                                   Court to investigate the grounds on which
                                   the findings were arrived at, by the last
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                                   court of fact, being the first appellate court.
                                   It is true that the lower appellate court
                                   should not ordinarily reject witnesses
                                   accepted by the trial court in respect of
                                   credibility but even where it has rejected the
                                   witnesses accepted by the trial court, the
                                   same is no ground for interference in
                                   second appeal when it is found that the
                                   appellate court has given satisfactory
                                   reasons for doing so. In a case where from
                                   a given set of circumstances two inferences
                                   are possible, one drawn by the lower
                                   appellate court is binding on the High
                                   Court in second appeal. Adopting any other
                                   approach is not permissible. The High
                                   Court cannot substitute its opinion for the
                                   opinion of the first appellate court unless it
                                   is found that the conclusions drawn by the
                                   lower appellate court were erroneous
                                   being contrary to the mandatory
                                   provisions of law applicable or its settled
                                   position on the basis of pronouncements
                                   made by the Apex Court, or was based
                                   upon inadmissible evidence or arrived at
                                   without evidence.”
                                          (emphasis supplied)

         In view thereof, where material evidence is ignored or inference

         is drawn without legal proof, the finding becomes perverse and

         is open to interference. The present case falls in the latter

         category.

                      22. In the facts of the present case, this omission

         assumes significant importance. The previous course of dealings
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         between the parties unmistakably shows that for the earlier eight

         instalments, receipts were admittedly issued. When parties, in

         the ordinary course of their transaction, reduced payments into

         writing and acknowledged them formally, the sudden departure

         from such practice in respect of the final and substantial amount

         of Rs.15,000/- creates a serious doubt. It is not a case of an

         insignificant balance rather, it constitutes a substantial portion of

         the total consideration and included the alleged stamp expenses.

         In    such      circumstances,        absence   of   any   documentary

         acknowledgment, coupled with inconsistencies in the oral

         testimony regarding the date, place and presence of witnesses at

         the time of payment, renders the version of respondent

         inherently improbable.

                      23. It is well settled that in a suit for specific

         performance, the burden lies heavily on the plaintiff to prove

         continuous readiness and willingness under Section 16(c) of the

         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

                      24. The Hon’ble Supreme Court in J.P. Builders and

         Anr.v. A. Ramadas Rao and Anr., reported in (2011) 1 SCC 429
Patna High Court SA No.317 of 1997 dt.24-03-2026
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         has held as under:

                                   “25. Section 16(c) of the Specific Relief Act,
                                   1963       mandates       “readiness      and
                                   willingness” on the part of the plaintiff and
                                   it is a condition precedent for obtaining
                                   relief of grant of specific performance. It is
                                   also clear that in a suit for specific
                                   performance, the plaintiff must allege and
                                   prove a continuous “readiness and
                                   willingness” to perform the contract on his
                                   part from the date of the contract. The onus
                                   is on the plaintiff.
                                   26. It has been rightly considered by this
                                   Court in R.C. Chandiok v. Chuni Lal
                                   Sabharwal [(1970) 3 SCC 140] that
                                   “readiness and willingness” cannot be
                                   treated as a straitjacket formula. This has
                                   to be determined from the entirety of the
                                   facts and circumstances relevant to the
                                   intention and conduct of the party
                                   concerned.
                                   27. It is settled law that even in the absence
                                   of specific plea by the opposite party, it is
                                   the mandate of the statute that the plaintiff
                                   has to comply with Section 16(c) of the
                                   Specific Relief Act and when there is non-
                                   compliance with this statutory mandate, the
                                   court is not bound to grant specific
                                   performance and is left with no other
                                   alternative but to dismiss the suit. It is also
                                   clear that readiness to perform must be
                                   established throughout the relevant points
                                   of time. “Readiness and willingness” to
                                   perform the part of the contract has to be
                                   determined/ascertained from the conduct of
                                   the parties.”
                      25. Apropos the principle laid down by the Hon’ble
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         Supreme Court in J.P. Builders and Anr. (supra), wherein a suit

         for specific performance, the plaintiff must establish readiness

         and willingness by clear and cogent evidence, and the burden to

         prove payment of consideration lies squarely upon the plaintiff.

         Where documentary evidence would ordinarily be expected in

         the normal course of human conduct, its absence becomes a

         material circumstance against the party asserting payment.

         Applying the said principle to the present case, this Court finds

         that the unexplained failure to obtain a receipt for such a

         substantial payment, contrary to the earlier consistent practice of

         issuing receipts, is a circumstance fatal to the case of the

         respondent and the learned Appellate Court erred in law in

         treating it as inconsequential.

                      26. Having considered that the requirement under

         Section 16(c) of the Specific Relief Act is mandatory. The

         respondent must prove continuous readiness and willingness

         from the date of agreement till decree. The conduct of the

         respondent does not inspire confidence and the learned

         Appellate Court assumed readiness merely because earlier

         instalments were paid. Further, the learned Appellate Court has

         failed to minutely examine the contradictions regarding date,

         place and presence of witnesses to the alleged payment and has
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         wrongly came to the conclusion of the story. Such inference is

         legally insufficient.

                      27. Moreover, the agreement (Ext. 2) specifically

         stipulated payment within one year and contained forfeiture

         clauses. The learned Appellate Court held that time is ordinarily

         not essence in contracts relating to immovable property, relying

         upon Chand Rani (supra). However, the said judgment itself

         clarifies that intention of parties must be gathered from the

         terms of the contract. Where the agreement contains explicit

         stipulation of time coupled with consequences of default, the

         presumption stands displaced.

                      28. Section 55 of the Indian Contract Act, 1872 is in

         three parts. In relevance to this case, it is enough to notice the

         first two parts, which reads:

                                   “55. Effect of failure to perform at fixed
                                   time, in contract in which time is essential.
                                   —When a party to a contract promises to
                                   do a certain thing at or before a specified
                                   time, or certain things at or before specified
                                   times, and fails to do any such thing at or
                                   before the specified time, the contract, or so
                                   much of it as has not been performed,
                                   becomes voidable at the option of the
                                   promisee, if the intention of the parties was
                                   that time should be of the essence of the
                                   contract.
                                   Effect of such failure when time is not
Patna High Court SA No.317 of 1997 dt.24-03-2026
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                                   essential.—If it was not the intention of the
                                   parties that time should be of the essence of
                                   the contract, the contract does not become
                                   voidable by the failure to do such thing at
                                   or before the specified time; but the
                                   promisee is entitled to compensation from
                                   the promisor for any loss occasioned to him
                                   by such failure.”
                      29. The Hon’ble Supreme Court relying upon the

         precedent of Chand Rani (supra) in K.S. Vidyanadam and Ors.

         v. Vairavan, reported in (1997) 3 SCC 1 has held as under:

                                   “10. …….That would amount to saying that
                                   the time-limits prescribed by the parties in
                                   the agreement have no significance or value
                                   and that they mean nothing. Would it be
                                   reasonable to say that because time is not
                                   made the essence of the contract, the time-
                                   limit(s) specified in the agreement have no
                                   relevance and can be ignored with
                                   impunity? It would also mean denying the
                                   discretion vested in the court by both
                                   Sections 10 and 20. As held by a
                                   Constitution Bench of this Court in Chand
                                   Rani v. Kamal Rani [(1993) 1 SCC 519]:
                                   (SCC p. 528, para 25)
                                   “… it is clear that in the case of sale of
                                   immovable property there is no presumption
                                   as to time being the essence of the contract.
                                   Even if it is not of the essence of the
                                   contract, the Court may infer that it is to
                                   be performed in a reasonable time if the
                                   conditions are (evident?): (1) from the
                                   express terms of the contract; (2) from the
                                   nature of the property; and (3) from the
                                   surrounding circumstances, for example,
Patna High Court SA No.317 of 1997 dt.24-03-2026
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                                   the object of making the contract.”
                                   In other words, the court should look at all
                                   the relevant circumstances including the
                                   time-limit(s) specified in the agreement
                                   and determine whether its discretion to
                                   grant specific performance should be
                                   exercised.”
                                           (emphasis supplied)

                      30.    Further,      the     Hon’ble   Supreme   Court   in

         Saradamani Kandappan v. S. Rajalakshmi and Ors., reported

         in (2011) 12 SCC 18 has held as under:

                                   “23. The above section deals with the effect
                                   of failure to perform at a fixed time, in
                                   contracts in which time is essential. The
                                   question whether time is the essence of the
                                   contract, with reference to the performance
                                   of a contract, what generally may arise for
                                   consideration either with reference to the
                                   contract as a whole or with reference to a
                                   particular term or condition of the contract
                                   which is breached. In a contract relating to
                                   sale of immovable property if time is
                                   specified for payment of the sale price but
                                   not in regard to the execution of the sale
                                   deed, time will become the essence only
                                   with reference to payment of sale price but
                                   not in regard to execution of the sale deed.
                                   Normally in regard to contracts relating to
                                   sale of immovable properties, time is not
                                   considered to be the essence of the contract
                                   unless such an intention can be gathered
                                   either from the express terms of the contract
                                   or impliedly from the intention of the
                                   parties as expressed by the terms of the
Patna High Court SA No.317 of 1997 dt.24-03-2026
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                                   contract.
                                          xxxx xxxx xxxx
                                   28. The intention to make time stipulated
                                   for payment of balance consideration will
                                   be considered to be essence of the contract
                                   where such intention is evident from the
                                   express terms or the circumstances
                                   necessitating the sale, set out in the
                                   agreement. If, for example, the vendor
                                   discloses in the agreement of sale, the
                                   reason for the sale and the reason for
                                   stipulating that time prescribed for payment
                                   to be the essence of the contract, that is,
                                   say, need to repay a particular loan before
                                   a particular date, or to meet an urgent time-
                                   bound need (say medical or educational
                                   expenses of a family member) time
                                   stipulated for payment will be considered to
                                   be the essence. Even if the urgent need for
                                   the money within the specified time is not
                                   set out, if the words used clearly show an
                                   intention of the parties to make time the
                                   essence of the contract, with reference to
                                   payment, time will be held to be the essence
                                   of the contract.”
                      31. In Saradamani Kandappan (supra), the Hon’ble

         Supreme Court after looking into express terms of the

         agreement held that parties to the agreement intended to make

         time as essence of contract in respect to the payment of balance

         consideration which was also manifested from the clauses of the

         agreement clearly indicating that payment was to made on the

         stipulated dates and even a day delay was not acceptable unless
Patna High Court SA No.317 of 1997 dt.24-03-2026
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         the due date declared holiday as evident from the clause

         providing payment on immediate working day in case of date of

         payment being declared holiday

                      32. In the present case, clauses relating to forfeiture

         and time schedule clearly indicate intention of strict compliance.

         The respondent admittedly did not pay the amount within the

         stipulated period. It is pertinent to mention here that the

         acceptance of earlier instalments cannot automatically amount

         to waiver of final stipulation, particularly when the entire

         balance remained unpaid within time. The reliance of learned

         counsel for the respondent on Gomathinayagam Pillai (supra)

         is distinguishable, as in that case conduct clearly established

         waiver and in the instant case, no such unequivocal waiver is

         proved. Moreover, in K. Narendra (supra), it has been held that

         grant of specific performance is discretionary and court must

         examine conduct and equity. The appellate court failed to

         properly exercise such discretion.

                      33. In view of the foregoing discussion and the

         findings recorded hereinabove, this Court is of the considered

         opinion that the judgment and decree dated 21.08.1997 passed

         by the learned Appellate Court in Title Appeal No. 04 of 1994

         suffer from serious legal infirmities and misapplication of
Patna High Court SA No.317 of 1997 dt.24-03-2026
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         settled     principles      governing     appreciation   of   evidence,

         presumption of service, and proof of readiness and willingness

         in a suit for specific performance. The learned Appellate Court

         reversed the well-reasoned judgment of the learned Trial Court

         without properly addressing the material inconsistencies and

         without adhering to the legal standards required for grant of

         discretionary relief under the Specific Relief Act. The

         substantial questions of law framed in this Second Appeal are

         accordingly answered in favour of the appellants and against the

         respondent-plaintiff. It is held that the finding of the learned

         Appellate Court regarding payment of the balance consideration

         of Rs.15,000/-, presumption of service of Ext.1 (certificate of

         posting), and compliance with the mandatory requirement of

         readiness and willingness under Section 16(c) of the Specific

         Relief Act are unsustainable in law.

                      34. Resultantly, the present Second Appeal is allowed.

         The judgment and decree dated 21.08.1997 passed by the

         learned 3rd Additional District Judge, Bhagalpur in Title Appeal

         No.04 of 1994 are hereby set aside, and the judgment and

         decree dated 31.08.1990 passed by the learned Subordinate

         Judge-I, Bhagalpur in Title Suit No. 178 of 1978 dismissing the

         suit is restored and accordingly confirmed.
             Patna High Court SA No.317 of 1997 dt.24-03-2026
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                                   35. There shall be no order as to costs.

                                   36. Let the Trial Court Record be transmitted

                      forthwith to the court concerned.




                                            (Ramesh Chand Malviya, J)
Brajesh Kumar/-
AFR/NAFR                AFR
CAV DATE                18.02.2026.
Uploading Date          24.03.2026
Transmission Date       N/A