M/S. SHIVALI ENTERPRISESversusSMT. GODAWARI (DECEASED) THR. LRS. AND OTHERS

                        [2022] 11 S.C.R. 273                             273


                  M/S. SHIVALI ENTERPRISES                               A
                                  v.
  SMT. GODAWARI (DECEASED) THR. LRS. AND OTHERS
               (Civil Appeal Nos. 8904-8907 of 2010)
                       SEPTEMBER 13, 2022                                B
          [B. R. GAVAI AND C. T. RAVIKUMAR, JJ.]
       Punjab Courts Act, 1918: s. 41 – Second Appeals –
Jurisdiction of the High Court under – Held: Second appeal is not
a forum where the court is to re-examine or re-appreciate the question
                                                                         C
of fact settled by the trial court or the appellate court – Though in
view of s.41, it is not necessary to frame a substantial question of
law, the jurisdiction of the High Court under second appeal cannot
be exercised for re-appreciation of evidence – Jurisdiction u/s. 41
would be available only when there is a substantial error or defect
in the procedure provided by the CPC or by any other law for the         D
time being in force – On facts, agreement to sell land between the
parties, for Rs. 1,65,000/- out of which Rs. 1,50,000/- duly received
by the respondents and the remaining was to be paid at the time of
execution of sale deed – Possession delivered to the appellant –
Respondents were required to obtain Income Tax Clearance
                                                                         E
Certificate and to also get the revenue records mutated in the name
of the appellant, however, the appellants came to know that the
respondents were trying to create third party rights – Appellant then
filed a suit for specific performance, which was decreed in favor of
the appellant by the trial court and the appellate court, however,
set aside by the High Court in second appeal – On facts, trial court     F
as well as the appellate court had specifically found on the basis of
the evidence that, though as per the terms and conditions of the
agreement to sell, the sale deed was to be executed only after the
respondents obtained the ITC Certificate and got the revenue records
corrected, the appellant was compelled to file the suit since the
                                                                         G
respondents were trying to alienate the suit property – Concurrent
findings of the trial court and the appellate court that the appellant
was justified in filing the suit could not have been faulted with –
Judgment of the High Court quashed and set aside.

                                                                         H
                                 273
274            SUPREME COURT REPORTS                      [2022] 11 S.C.R.


A           Allowing the appeals, the Court
             HELD: 1. Even when a court exercises jurisdiction under
      Section 41 of the Punjab Act, it cannot interfere with the findings
      of fact in second appeal on the ground that the said findings are
      erroneous, howsoever gross or inexcusable the error may seem
B     to be. The findings of fact would also include the findings on the
      basis of documentary evidence. The jurisdiction under Section
      41 of the Punjab Act would be available only when there is a
      substantial error or defect in the procedure provided by the CPC
      or by any other law for the time being in force. Though it is not
      necessary to formulate a substantial question of law, the
C     jurisdiction under Section 41 of the Punjab Act would permit only
      such decisions to be considered in second appeal which are
      contrary to law or to some custom or usage having the force of
      law, or when the courts below have failed to determine some
      material issue of law or custom or usage having the force of law.
D     Second appeal is not a forum where the court is to re-examine or
      re-appreciate the question of fact settled by the trial court or the
      Appellate Court. Though in view of Section 41 of the Punjab Act,
      it is not necessary to frame a substantial question of law, the
      jurisdiction of the High Court under second appeal cannot be
      exercised for re-appreciation of evidence. [Paras 15, 17][282-D-
E     F; 284-C-D]
            2.1 In the written statement, the respondents stated that
      they had executed the Power of Attorney and one Mukhtar, an
      agent of the appellant, was required to take all the requisite steps
      to get the revenue records corrected. A perusal of the written
F     statement would reveal that the respondents had denied that the
      appellant-plaintiff was in possession of the suit property. The
      respondents-defendants further asserted their right to alienate
      the suit property, if they so desired. [Paras 20-21][285-H; 286-
      A-B, D]
G           2.2 The trial court, after perusal of the evidence, came to a
      finding that the execution of the agreement(s) to sell was admitted
      by the respondents-defendants. The trial court further came to a
      specific finding of fact that the appellant-plaintiff was always ready
      and willing to perform his part of contract. It found that, upon the
H     respondents-defendants complying with the conditions as
       M/S. SHIVALI ENTERPRISES v. SMT. GODAWARI                            275
            (DECEASED) THR. LRS. AND OTHERS

provided in the agreement(s) to sell, they were required to issue           A
a notice to the appellant-plaintiff and after receipt of the said notice,
the sale consideration was required to be paid within 30 days
from receipt of the said notice. In appeal, the appellate court
affirmed the findings of fact recorded by the trial court. It held
that the execution of the agreement to sell and the receipt of
                                                                            B
earnest money of Rs. 1,50,000/- was not disputed. It found that,
as per the terms of the agreement(s) to sell, it was for the
respondents to get the revenue records corrected and they had
also agreed to obtain the ITC Certificate and to send a copy of
the same to the vendee. The appellate court held that even oral
evidence to controvert these conditions incorporated in the                 C
written statement cannot be led in view of Section 92 of the
Evidence Act, 1872. It held that the self-serving oral statement
of defendant No. 7 was not sufficient to controvert the terms and
conditions incorporated in the agreement(s) to sell. Insofar as
the argument that the suit for specific performance was filed
                                                                            D
without the correction of revenue records, the appellate court
found that since the respondents-defendants were intending to
alienate the suit property, the appellant-plaintiff was justified in
filing the suit. [Paras 22, 23][286-E-H; 287-A-B]
      2.3 The appellate court came to a specific finding that none
of the respondents-, who were signatories to the agreement, had             E
entered into the witness box. Though defendant No. 7, who is
the husband of defendant No. 3, had appeared as a witness, the
appellate court found that he was not a good substitute for
defendants No. 1 to 4, who, being vendors, were the material
witnesses. The appellate court held that on account of non-                 F
examination of any of the vendors, an adverse inference could
be drawn against them. [Para 24][287-B-D]
      2.4 The Single Judge of the High Court, has held that the
appellant-plaintiff could seek specific performance of the contract
only after the revenue record was corrected. It held that the suit          G
for correction of the revenue record was filed by the respondents-
defendants in 1986 and the same was decreed in 2006. It therefore
held that the suit of the appellant-plaintiff which was filed in 1989
was not tenable. The Single Judge therefore allowed the appeals

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276            SUPREME COURT REPORTS                       [2022] 11 S.C.R.


A     and held that if the plaintiff desires to get the sale deed executed,
      he is required to pay the present prevalent market rate of the
      suit property. The Single Judge of the High Court erred in
      interfering with the concurrent findings of fact recorded by the
      trial court as well as by the appellate court. The trial court as well
      as the appellate court had specifically found on the basis of the
B
      evidence that, though as per the terms and conditions of the
      agreement(s) to sell, the sale deed was to be executed only after
      the respondents-defendants obtained the ITC Certificate and got
      the revenue records corrected, the appellant-plaintiff was
      compelled to file the suit since the respondents-defendants were
C     trying to alienate the suit property. [Paras 25, 26][287-D-H]
             2.5 The appellant-plaintiff has specifically averred that,
      though the respondents-defendants had neither obtained the ITC
      Certificate nor had the revenue records corrected, they were
      threatening to dispossess him and create 3rd party rights over
D     the suit property. In these circumstances, the appellant-plaintiff
      was constrained to file the suit. In the written statement, the
      respondents- defendants have specifically stated that they were
      entitled to create 3rd party rights. In this factual situation, the
      concurrent findings of the trial court and the appellate court that
      the appellant-plaintiff was justified in filing the suit could not have
E     been faulted with. [Paras 27][288-A-C]
            2.6 The respondents-defendants cannot be permitted to
      blow hot and cold at the same time. On one hand, they contended
      that the suit could not have been filed without getting the ITC
      Certificate and correction of revenue records, whereas on the
F     other hand, they assert their right to alienate the suit property.
      [Paras 28][288-C-D]
             2.7 Out of an agreed amount of Rs.1,65,000/-, the appellant
      has already paid an amount of Rs.1,50,000/- . He was already put
      in possession at the time of execution of the agreement(s) to
G     sell. The balance sale consideration that was to be paid was only
      about 10% of the total agreed amount. Though the sale deed was
      to be executed upon the respondents-defendants getting the ITC
      Certificate and getting the revenue records corrected in the year
      1986, in view of their greed since the prices were escalating, the
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      M/S. SHIVALI ENTERPRISES v. SMT. GODAWARI                      277
           (DECEASED) THR. LRS. AND OTHERS

respondents-defendants had tried to create 3rd party rights. In      A
these circumstances, the appellant was required to file the suit.
The respondents have also asserted in their written statement
that they were entitled to alienate the suit property. Having
accepted the agreement(s) to sell and the receipt of an amount of
Rs. 1,50,000/- out of the total amount of Rs.1,65,000/-, the
                                                                     B
respondents could not have been permitted to take a contrary
stand that on one hand, the suit could not be filed before the ITC
Certificate was obtained and the revenue records were corrected,
and on the other hand that they were entitled to alienate the suit
property. The Single Judge of the High Court erred in interfering
with the concurrent findings of fact arrived at by the trial court   C
and the appellate court upon correct appreciation of documentary
as well as oral evidence. The judgment and order passed by the
High Court are quashed and set aside and that of the trial court
and the appellate court are upheld. [Paras 32-34][289-C-H; 290-
A-B]
                                                                     D
     Kulwant Kaur and Others v. Gurdial Singh Mann
     (Dead) By LRs. and Others (2001) 4 SCC 262 : [2001]
     2 SCR 525 – held inapplicable.
     Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and
     Others (1999) 3 SCC 722 : [1999] 2 SCR 728; Kirodi              E
     (since deceased) Through His Legal Representatives v.
     Ram Parkash and Others (2019) 11 SCC 317 : [2019]
     7 SCR 968; Satyender and Others v. Saroj and Others
     2022 SCC OnLine SC 1026; Nirmala Anand v. Advent
     Corporation (P) Ltd. and Others (2002) 5 SCC 481 :
     Randhir Kaur v. Prithvi Pal Singh and Others (2019)             F
     17 SCC 71 : [2019] 9 SCR 776; Vidhyadhar v.
     Manikrao and Another (1999) 3 SCC 573 : [1999] 1
     SCR 168 – referred to.
                      Case Law Reference
                                                                     G
[1999] 2 SCR 728             referred to           Para 8
[2019] 7 SCR 968             referred to           Para 12
(2002) 5 SCC 481             referred to           Para 12
[2019] 9 SCR 776             referred to           Para 14
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278            SUPREME COURT REPORTS                         [2022] 11 S.C.R.


A     [1999] 1 SCR 168                 referred to            Para 24
      [2001] 2 SCR 525                 held inapplicable      Para 30
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8904-
      8907 of 2010.
B            From the Judgment and Orders dated 03.03.2008 and 10.04.2008
      of the High Court of Punjab & Haryana at Chandigarh in R.S.A. No.
      1206 of 2005 and R.A. No. 19-C/08 in R.S.A. No.1206 of 2005 and
      R.S.A. No. 1207 of 2005 and R.A. No. 18-C of 2008 in R.S.A. No.
      1207 of 2005.

C            S. R. Singh, Sr. Adv., A. Venayagam Balan, Rishi Malhotra,
      Siddharth Sengar, Gaurav Lomes, Prithavi Yadav, Abhishek Atrey Advs.
      for the appearing parties.
            The Judgment of the Court was delivered by
            B. R. GAVAI, J.
D
             1. These appeals challenge the judgment dated 3rd March 2008
      passed by the learned Single Judge of the High Court of Punjab and
      Haryana at Chandigarh in Regular Second Appeal Nos. 1206 and 1207
      of 2005, thereby allowing the appeals filed by the respondents-defendants
      challenging the concurrent judgments and decrees dated 3rd January
E     2001 passed by the Additional Civil Judge (Senior Division), Faridabad
      (hereinafter referred to as the “trial court”) in RBT 329/90/2000, and
      8th February 2005 passed by the learned District Judge, Faridabad
      (hereinafter referred to as the “Appellate Court”) in Civil Appeal No. 11
      of 2001. Vide the impugned judgment, the learned Single Judge of the
      High Court directed that, if the plaintiff desires to get the sale deed
F
      executed pursuant to the agreement(s) to sell, he would do so by paying
      the present prevalent market value as sale consideration. The appellant-
      plaintiff has also assailed the order dated 10th April 2008 passed by the
      learned Single Judge of the High Court, thereby dismissing the review
      applications being R.A. No. 19-C of 2008 in R.S.A. No. 1206 of 2005
G     and R.A. No. 18-C of 2008 in R.S.A. No. 1207 of 2005, filed by the
      appellant-plaintiff.
            2. Facts in brief giving rise to the present appeals are as under:
            The appellant-plaintiff through its partner Raj Kumar, entered into
      an agreement to sell dated 29th October 1983 with the respondents-
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      M/S. SHIVALI ENTERPRISES v. SMT. GODAWARI                                279
   (DECEASED) THR. LRS. AND OTHERS [B. R. GAVAI, J.]

defendants No. 1 to 4 with regard to the suit property, which was situated     A
in the revenue estate of Chak Salarpur, Tehsil Dadri, District Ghaziabad
(U.P.), at the rate of Rs. 2900/- per Bigha. Though the suit property
initially was in the State of U.P., vide notification of the Central
Government dated 15th September 1983, it became a part of the State of
Haryana. At the time of agreement to sell dated 29th October 1983,
                                                                               B
earnest amount of Rs.50,000/- was paid by the appellant-plaintiff to the
respondents-defendants.
       3. Due to a dispute between the State of U.P. and Haryana, the
aforesaid sale deed could not be executed in favour of the appellant-
plaintiff. Therefore, another agreement to sell was executed between
the parties on 23rd August 1985. At the time of execution of the said          C
agreement, an additional amount of Rs.1,00,000/- was paid by the
appellant-plaintiff to the respondents-defendants. It is not in dispute that
the total amount payable as per the terms of the agreement to sell dated
29 th October 1983 was Rs. 1,65,000/- out of which, an amount of
Rs. 1,50,000/- was duly received by the respondents-defendants on or           D
before 23rd August 1985. As per the terms of the agreement(s) to sell,
the remaining sale price was to be paid before the Sub-Registrar at the
time of execution and registration of sale deed. It is not in dispute that
the physical possession of the suit property was also delivered to the
appellant-plaintiff by the respondents-defendants at the time of execution
of the agreement(s) to sell. It is also not in dispute that the appellant-     E
plaintiff is thereafter in continuous possession of the suit property.
      4. As per the terms of the agreement(s) to sell, the respondents-
defendants were required to obtain Income-Tax Clearance (for short
“ITC”) Certificate and to also get the revenue records mutated to show
them as the owners inasmuch as the Central Government was shown as             F
the owner mistakenly. The agreement to sell further stipulated that, in
case of default by the respondents-defendants, the appellant-plaintiff
was at liberty to get the sale deed executed and registered.
        5. After coming to know that the respondents-defendants were
trying to create 3rd party rights, the appellant-plaintiff filed a suit for    G
specific performance with further prayer for permanent injunction as
against the respondents-defendants. The said suit was resisted by the
respondents-defendants by filing their written statement. The learned
trial court vide judgment and decree dated 3rd January 2001 decreed the
suit. In an appeal filed by the respondents-defendants, the learned            H
280                SUPREME COURT REPORTS                      [2022] 11 S.C.R.


A     Appellate Court upheld the findings of the trial court vide judgment and
      decree dated 8th February 2005.
            6. Being aggrieved thereby, the respondents-defendants filed
      second appeals before the High Court. Vide the impugned judgment, the
      High Court reversed the concurrent findings recorded by the trial court
B     and the Appellate Court and passed the judgment as aforesaid. Being
      aggrieved thereby, the present appeals have been preferred by the
      appellant-plaintiff.
            7. We have heard Shri Rishi Malhotra, learned counsel appearing
      on behalf of the appellant-plaintiff and Shri S.R. Singh, learned Senior
C     Counsel appearing on behalf of the respondents-defendants.
             8. Shri Malhotra submitted that the High Court has grossly erred
      in interfering with the concurrent findings passed by the trial court and
      the Appellate Court. He submitted that, since no substantial question of
      law arose for consideration before the High Court, the appeals deserve
D     to be allowed on this short ground alone. He relies on the judgment of
      this Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan
      Gujar and Others1 in this regard.
             9. Shri Malhotra further submitted that, even assuming that in
      view of the provisions of Section 41 of the Punjab Courts Act, 1918
E     (hereinafter referred to as the “Punjab Act”) it is not necessary to frame
      a substantial question of law, the jurisdiction of the learned Single Judge
      of the High Court would still be circumscribed by the provisions of Section
      41 of the Punjab Act and any interference in second appeal would only
      be warranted if the case falls within the limited area as earmarked in
      Section 41 of the Punjab Act.
F
             10. He further submitted that the respondents-defendants have
      not entered into the witness box and as such, the case of the appellant-
      plaintiff on the basis of the agreement(s) to sell has gone unchallenged.
      He therefore submitted that the appeals deserve to be allowed and the
      impugned judgments are liable to be quashed and set aside.
G
             11. Shri Singh, on the contrary, submitted that the High Court has
      rightly allowed the second appeals. He submitted that, as per the terms
      of the agreement(s) to sell, the sale deed was to be registered only after
      the ITC Certificate was obtained and the property was mutated in the

H     1
          (1999) 3 SCC 722
       M/S. SHIVALI ENTERPRISES v. SMT. GODAWARI                                  281
    (DECEASED) THR. LRS. AND OTHERS [B. R. GAVAI, J.]

name of the respondents-defendants. He submitted that the respondents-            A
defendants had filed a suit for getting the suit property mutated in their
names on 4th June 1986 and the said suit came to be decreed only on
22nd December 2006. It is therefore submitted that the suit filed by the
appellant-plaintiff on 17th October 1989 was premature.
       12. Shri Singh submitted that in view of the Punjab Act, no                B
substantial question of law was required to be framed. He relies on the
judgment of this Court in the case of Kulwant Kaur and Others v.
Gurdial Singh Mann (Dead) By LRs. and Others2. The learned Senior
Counsel further relies on the judgments of this Court in the cases of
Kirodi (since deceased) Through His Legal Representatives v. Ram
Parkash and Others3 and Satyender and Others v. Saroj and Others4                 C
in support of this proposition. Shri Singh, further relying on the judgment
of this Court in the case of Nirmala Anand v. Advent Corporation (P)
Ltd. and Others5, submitted that there is no reason to interfere with the
direction of the trial court which directs that if the plaintiff desires to get
the specific performance, the same shall be done at the prevalent market          D
rate. He further submitted that the suit itself was not tenable in view of
Section 14 of the Specific Relief Act, 1963.
       13. Section 41 of the Punjab Act reads thus:
       “41. Second appeals — (1) An appeal shall lie to the High Court
       from every decree passed in appeal by any Court subordinate to             E
       the High Court on any of the following grounds, namely:
          (a) the decision being contrary to law or to some custom or
          usage having the force of law:
          (b) the decision having failed to determine some material issue         F
          of law or custom or usage having the force of law:
          (c) a substantial error or defect in the procedure provided by
          the Code of Civil Procedure 1908 [V of 1908], or by any other
          law for the time being in force which may possibly have
          produced error or defect in the decision of the case upon the
                                                                                  G
          merits; [Explanation — A question relating to the existence or

2
  (2001) 4 SCC 262
3
  (2019) 11 SCC 317
4
  2022 SCC OnLine SC 1026
5
  (2002) 5 SCC 481                                                                H
282                SUPREME COURT REPORTS                         [2022] 11 S.C.R.


A                  validity of a custom or usage shall be deemed to be a question
                   of law within the meaning of his section:]
               (2) An appeal may lie under this section from an appellate decree
               passed ex parte.”
            14. This Court, in the case of Randhir Kaur v. Prithvi Pal Singh
B     and Others6, after considering the scope of interference under the old
      Section 100 of the Civil Procedure Code, 1908 (for short “CPC”) and
      Section 41 of the Punjab Act, has observed thus:
               “15. A perusal of the aforesaid judgments would show that the
               jurisdiction in second appeal is not to interfere with the findings of
C              fact on the ground that findings are erroneous, however, gross or
               inexcusable the error may seem to be. The findings of fact will
               also include the findings on the basis of documentary evidence.
               The jurisdiction to interfere in the second appeal is only where
               there is an error in law or procedure and not merely an error on a
D              question of fact.”
             15. It could thus be seen that this Court has held that, even when
      a court exercises jurisdiction under Section 41 of the Punjab Act, it cannot
      interfere with the findings of fact in second appeal on the ground that
      the said findings are erroneous, howsoever gross or inexcusable the
E     error may seem to be. It has been held that the findings of fact would
      also include the findings on the basis of documentary evidence. The
      jurisdiction under Section 41 of the Punjab Act would be available only
      when there is a substantial error or defect in the procedure provided by
      the CPC or by any other law for the time being in force.

F           16. A bench of three learned Judges of this Court, in a recent
      judgment in the case of Satyender and Others (supra), has observed
      thus:
               “17. Be that as it may, though the requirement of formulation of a
               substantial question of law was not necessary, yet Section 41 of
               the Punjab Courts Act, requires that only such decisions
G
               are to be considered in second appeal which are contrary
               to law or to some custom or usage having the force of law
               or the court below have failed to determine some material
               issue of law or custom or usage having the force of law.
      6
H         (2019) 17 SCC 71
   M/S. SHIVALI ENTERPRISES v. SMT. GODAWARI                               283
(DECEASED) THR. LRS. AND OTHERS [B. R. GAVAI, J.]

  Therefore, what is important is still a “question of law”. In            A
  other words, second appeal is not a forum where court has
  to re-examine or re-appreciate questions of fact settled by
  the Trial Court and the Appellate Court. The plaintiffs had
  claimed right over certain agricultural land and their case was
  that they have the right to be declared the owner of this property
                                                                           B
  and the possession be handed over to the them, for the reasons
  that on this particular property defendants and their predecessors-
  in-interest were the tenants of the plaintiffs. Their case was that
  defendant No. 2 was their tenant who had sub-let the property in
  favour of his son, that is defendant No. 1 and therefore, the property
  should be reverted back to the plaintiffs and they should be declared    C
  the owner and should be given the possession of the property as
  well. Both the Trial Court as well as the First Appellate Court had
  held after evaluating the evidence placed by the plaintiffs that the
  defendant No. 2 and his brothers (who were not even made a
  party by the plaintiffs) were the tenants on the property and
                                                                           D
  defendant No. 2 had not sub-let the property in favour of his son
  that is defendant No. 1 and the revenue entries being made in this
  regard in the year 1978 are wrong and without any basis as there
  was no order of any revenue authority for making such an entry.
  In short, the plaintiffs had failed to prove their case as owner of
  the land in dispute. Hence their case of declaration and possession      E
  was dismissed. The Second Appellate Court however, quite
  erroneously, and without any justification, gave an entirely new
  finding regarding two Killa Nos. 21//3/2 and 7//13 on which the
  plaintiffs claimed relief of declaration and possession, on the same
  grounds as raised by them for the other Killa Nos. The pleadings
                                                                           F
  also show that the defendants had made a general denial of the
  plaintiffs’ claim for all the plots. Yet, the High Court held that
  since the defendants had not made any claim for plot nos. 21//3/2
  and 7//13 and therefore by logic a decree of declaration of
  possession ought to have been given to the plaintiffs for these
  plots! This reasoning of the second Appellate Court is erroneous         G
  for the simple reason that the burden of proof was on the plaintiffs
  to prove their case, which they had failed. They have not been
  able to prove to the satisfaction of the Trial Court as well as the
  First Appellate Court about their claim of any kind over this
  property. Merely because the defendant did not raise a counter
                                                                           H
284             SUPREME COURT REPORTS                          [2022] 11 S.C.R.


A           claim on this property it would not ipso facto mean that a decree
            ought to have been granted in favour of the plaintiffs. Plaintiffs
            have to prove their case on the strength of their evidence. For this
            reason, the reasoning given by the Second Appellate Court for
            decreeing the claim of the plaintiff for plot nos. 21//3/2 and 7//13
            is incorrect and to that extent is liable to be set aside.”
B
                                                             [emphasis supplied]
             17. It would thus be clear that this Court has held that, though it is
      not necessary to formulate a substantial question of law, the jurisdiction
      under Section 41 of the Punjab Act would permit only such decisions to
C     be considered in second appeal which are contrary to law or to some
      custom or usage having the force of law, or when the courts below have
      failed to determine some material issue of law or custom or usage having
      the force of law. The Court held that second appeal is not a forum
      where the court is to re-examine or re-appreciate the question of fact
      settled by the trial court or the Appellate Court. It could thus clearly be
D     seen that though in view of Section 41 of the Punjab Act, it is not
      necessary to frame a substantial question of law, the jurisdiction of the
      High Court under second appeal cannot be exercised for re-appreciation
      of evidence.
             18. A perusal of the plaint filed by the appellant-plaintiff would
E     reveal that the appellant-plaintiff has specifically referred to the terms
      of the agreement(s) to sell. He has specifically stated that the
      respondents-defendants have received an amount of Rs.1,50,000/-. He
      has further specifically stated that the respondents-defendants have
      delivered the actual possession of the suit property to him. It is averred
F     that after the respondents-defendants obtained the requisite ITC
      Certificate and got the revenue records corrected, they were required
      to serve a notice upon the appellant-plaintiff informing him about the
      same having been done. After the receipt of such notice, the appellant-
      plaintiff was required to make the balance payment and get the sale
      deed executed. The appellant-plaintiff was also given liberty to use the
G     suit property in any manner so as to plant trees, raise construction, install
      tubewells etc. It has been averred in the plaint as under:
            “10. That all the defendants have been admitting and acknowledging
            the plaintiff firm to be in possession of the suit land and seeing
            them spending huge amount over it. The plaintiff has been affecting
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      M/S. SHIVALI ENTERPRISES v. SMT. GODAWARI                               285
   (DECEASED) THR. LRS. AND OTHERS [B. R. GAVAI, J.]

      costly improvements over the suit land and the defendants have          A
      been seeing plaintiff spending huge amount objected to it. They
      are estopped from denying the fact by their acts, conduct,
      omissions, laches and admissions.
      11. That the rates of the land in the dispute have started rising and
      the defendants out of sheer greed have threatened to take forcible      B
      possession, dispossess the plaintiff and to interfere in the peaceful
      enjoyment of the suit land by the plaintiff about a month ago.
      They have also threatened to alienate the suit land in favour of
      the third parties. They have also refused to obtain the requisite
      Income Tax Clearance certificate and to execute the sale deed in
      favour of the plaintiff firm as agreed upon in accordance with the      C
      terms of the agreement of sale dated 23.8.1985.
      12. That defendants No.1 to 4 were repeatedly approached to
      execute the sale deed in favour of the plaintiff in accordance with
      the terms of the agreement of sale dated 23.8.1985. The
      defendants were also further requested to desist from dispossessing     D
      the plaintiff, taking forcible possession or otherwise interfering in
      the peaceful enjoyment of the suit land by the plaintiff. However,
      defendants after prevarication for some time have finally refused
      to accede to the reasonable, just and legal request of the plaintiff
      about a week ago. Hence this suit.                                      E
      13. That the plaintiff firm has all along been ready and willing to
      perform its part of the contract and is still ready and willing to do
      so. It has all along got the requisite amount of balance sale
      consideration and expense etc. with it. The defendants have thus
      committed breaches of agreement of sale as per details above            F
      with malafide intention.
      14. That cause of action arose about a month ago and again about
      a week ago on the final refusal of the defendants.”
       19. It can thus clearly be seen that the appellant-plaintiff has
specifically averred that due to the rising rate of the suit property, the    G
respondents-defendants, out of sheer greed, had threatened to take
forcible possession and also threatened to alienate the suit property in
favour of a 3rd party.
       20. In the written statement, the respondents-defendants have
stated that the appellant-plaintiff had obtained Power of Attorney from       H
286             SUPREME COURT REPORTS                           [2022] 11 S.C.R.


A     the respondents-defendants and had undertaken to obtain the ITC
      Certificate. It was further stated by the respondents-defendants that
      they had executed the Power of Attorney and one Mukhtar, an agent of
      the appellant-plaintiff, was required to take all the requisite steps to get
      the revenue records corrected. It will be relevant to refer to paragraph
      (11) of the written statement of the respondents-defendants as under:
B
            “11. In reply to Para No.11 it is denied that the plaintiffs are in
            possession of the land in suit; it is also denied that defendants
            Nos. l to 4 had to obtain the ITCC; it is also denied that the Plaintiff
            had the financial capability to purchase the land; it is submitted
            that defendants Nos. 1 to 4 are in possession of the suit
C           land as owners thereof and an entitled to alienate the same
            if so desired. It is also denied that the agreement to sell
            dated 23.8.1985 is in force.”
                                                             [emphasis supplied]

D            21. A perusal of the aforesaid paragraph would reveal that the
      respondents-defendants had denied that the appellant-plaintiff was in
      possession of the suit property. The respondents-defendants further
      asserted their right to alienate the suit property, if they so desired.
              22. The trial court, after perusal of the evidence, came to a finding
E     that the execution of the agreement(s) to sell was admitted by the
      respondents-defendants. The trial court further came to a specific finding
      of fact that the appellant-plaintiff was always ready and willing to perform
      his part of contract. It found that, upon the respondents-defendants
      complying with the conditions as provided in the agreement(s) to sell,
      they were required to issue a notice to the appellant-plaintiff and after
F     receipt of the said notice, the sale consideration was required to be paid
      within 30 days from receipt of the said notice.
            23. In appeal, the learned Appellate Court affirmed the findings
      of fact recorded by the trial court. It held that the execution of the
      agreement to sell (Ex. PW1/3) and the receipt of earnest money of
G     Rs. 1,50,000/- was not disputed. It found that, as per the terms of the
      agreement(s) to sell, it was for the respondents-defendants No. 1 to 4 to
      get the revenue records corrected and they had also agreed to obtain
      the ITC Certificate and to send a copy of the same to the vendee. The
      learned Appellate Court held that even oral evidence to controvert these
      conditions incorporated in the written statement cannot be led in view of
H
         M/S. SHIVALI ENTERPRISES v. SMT. GODAWARI                              287
      (DECEASED) THR. LRS. AND OTHERS [B. R. GAVAI, J.]

Section 92 of the Evidence Act, 1872. It held that the self-serving oral        A
statement of Ajit Singh, defendant No. 7 was not sufficient to controvert
the terms and conditions incorporated in the agreement(s) to sell. Insofar
as the argument that the suit for specific performance was filed without
the correction of revenue records, the learned Appellate Court found
that since the respondents-defendants were intending to alienate the suit
                                                                                B
property, the appellant-plaintiff was justified in filing the suit.
       24. The learned Appellate Court came to a specific finding that
none of the respondents-defendants No. 1 to 4, who were signatories to
the agreement, had entered into the witness box. Though Ajit Singh,
defendant No. 7, who is the husband of defendant No. 3, had appeared
as a witness, the Appellate Court found that he was not a good substitute       C
for defendants No. 1 to 4, who, being vendors, were the material
witnesses. The learned Appellate Court, relying on the judgment of this
Court in the case of Vidhyadhar v. Manikrao and Another7, held that
on account of non-examination of any of the vendors, an adverse
inference could be drawn against them.                                          D
        25. The learned Single Judge of the High Court, vide the impugned
judgment, has held that the appellant-plaintiff could seek specific
performance of the contract only after the revenue record was corrected.
It held that the suit for correction of the revenue record was filed by the
respondents-defendants on 4th June 1986 and the same was decreed on             E
22nd December 2006. It therefore held that the suit of the appellant-
plaintiff which was filed on 17th October 1989 was not tenable. The
learned Single Judge therefore allowed the appeals and held that, in
view of the judgment of this Court in the case of Nirmala Anand (supra),
if the plaintiff desires to get the sale deed executed, he is required to pay
the present prevalent market rate of the suit property.                         F

        26. We find that the learned Single Judge of the High Court has
erred in interfering with the concurrent findings of fact recorded by the
trial court as well as by the Appellate Court. The trial court as well as
the Appellate Court had specifically found on the basis of the evidence
that, though as per the terms and conditions of the agreement(s) to sell,       G
the sale deed was to be executed only after the respondents-defendants
obtained the ITC Certificate and got the revenue records corrected, the
appellant-plaintiff was compelled to file the suit since the respondents-
defendants were trying to alienate the suit property.
7
    (1999) 3 SCC 573                                                            H
288             SUPREME COURT REPORTS                             [2022] 11 S.C.R.


A             27. It is pertinent to note that the appellant-plaintiff has specifically
      averred that, though the respondents-defendants had neither obtained
      the ITC Certificate nor had the revenue records corrected, they were
      threatening to dispossess him and create 3rd party rights over the suit
      property. In these circumstances, the appellant-plaintiff was constrained
      to file the suit. In the written statement, the respondents-defendants
B
      have specifically stated that they were entitled to create 3rd party rights.
      In this factual situation, the concurrent findings of the trial court and the
      Appellate Court that the appellant-plaintiff was justified in filing the suit
      could not have been faulted with.
              28. The respondents-defendants cannot be permitted to blow hot
C     and cold at the same time. On one hand, they contended that the suit
      could not have been filed without getting the ITC Certificate and
      correction of revenue records, whereas on the other hand, they assert
      their right to alienate the suit property.
             29. Shri Singh has heavily relied on the judgment of this Court in
D     the case of Kulwant Kaur and Others (supra). No doubt that where it
      is found that the findings of the trial court and the Appellate Court are
      vitiated on wrong test and on the basis of assumptions and conjectures
      and resultantly, there is an element of perversity, the High Court will be
      within its jurisdiction to deal with the same. However, this can be permitted
E     only in the event where such a fact is brought to light by the High Court
      explicitly and the judgment should also be categorical as to the issue of
      perversity vis-à-vis the concept of justice.
            30. In the present case, apart from there being no perversity in
      the concurrent findings of fact, there is not even an observation in the
F     judgment of the High Court to that effect. The judgment of the learned
      Single Judge of the High Court also does not discuss the issue of
      perversity vis-à-vis the concept of justice. As such, the said judgment, in
      our view, is not applicable to the facts of the present case.
              31. Insofar as the reliance placed by the respondents-defendants
G     on the judgment of this Court in the case of Nirmala Anand (supra) is
      concerned, the said judgment, rather than supporting the case of the
      respondents-defendants, would support the case of the appellant-plaintiff.
      In the said case, the suit filed by the appellant was partly decreed, thereby
      only awarding damages. The same was upheld by the Division Bench of
      the High Court. The defence of the defendant therein was with regard
H     to impossibility of performance of the agreement entered into by the
      M/S. SHIVALI ENTERPRISES v. SMT. GODAWARI                               289
   (DECEASED) THR. LRS. AND OTHERS [B. R. GAVAI, J.]

appellant with the respondents No. 1 and 2. In the said case, this Court      A
found that the respondents-defendants could not be solely blamed for
delay inasmuch as the completion of the building was dependent upon
certain acts that were to be done by the Corporation and the Government.
In this background, this Court directed an additional amount to be paid
by the appellant-plaintiff to the respondents-defendants to get the sale
                                                                              B
deed executed in her favour.
       32. In the present case, it would be seen that out of an agreed
amount of Rs.1,65,000/-, the appellant-plaintiff has already paid an amount
of Rs.1,50,000/- on or before 23rd August 1985. He was already put in
possession at the time of execution of the agreement(s) to sell. The
balance sale consideration that was to be paid was only about 10% of          C
the total agreed amount. Though the sale deed was to be executed upon
the respondents-defendants getting the ITC Certificate and getting the
revenue records corrected in the year 1986, in view of their greed since
the prices were escalating, the respondents-defendants had tried to create
3rd party rights. In these circumstances, the appellant-plaintiff was         D
required to file the suit. The respondents-defendants have also asserted
in their written statement that they were entitled to alienate the suit
property. Having accepted the agreement(s) to sell and the receipt of an
amount of Rs. 1,50,000/- out of the total amount of Rs.1,65,000/-, the
respondents-defendants could not have been permitted to take a contrary
stand that on one hand, the suit could not be filed before the ITC            E
Certificate was obtained and the revenue records were corrected, and
on the other hand that they were entitled to alienate the suit property.
       33. We are of the considered view that the learned Single Judge
of the High Court has erred in interfering with the concurrent findings of
fact arrived at by the trial court and the Appellate Court upon correct       F
appreciation of documentary as well as oral evidence.
      34. In the result, we pass the following order:
      (i) The appeals are allowed;
      (ii) The judgment 3rd March 2008 passed by the High Court in            G
           Regular Second Appeal Nos. 1206 and 1207 of 2005 and
           order dated 10th April 2008 passed by the High Court in R.A.
           No. 19-C of 2008 in R.S.A. No. 1206 of 2005 and R.A. No.
           18-C of 2008 in R.S.A. No. 1207 of 2005 are quashed and
           set aside; and
                                                                              H
290              SUPREME COURT REPORTS                       [2022] 11 S.C.R.


A            (iii) The judgments and decrees dated 3rd January 2001 passed
                   by the trial court in RBT 329/90/2000 and dated 8th February
                   2005 passed by the Appellate Court in Civil Appeal No. 11 of
                   2001 are upheld.
            35. Pending application(s), if any, shall stand disposed of in the
B     above terms. No order as to costs.

      Nidhi Jain                                                 Appeals allowed.
      (Assisted by : Shashwat Jain, LCRA)


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