Summary
The Supreme Court upheld a decree for specific performance of a 1988 agreement to sell agricultural land. The first appellate court's findings on extension of time, cash payment and readiness and willingness were findings of fact, not perverse, and could not be reopened in second appeal. The plaintiff's absence from the witness box was cured by his Manager's first-hand evidence, and no price escalation was proved to make the decree inequitable. The defendants' transfers pending litigation were held non est.
Issues
- Whether the High Court in second appeal ought to have reappreciated the evidence behind the first appellate court's findings on extension of time, cash payment and readiness and willingness.
- Whether the plaintiff's failure to enter the witness box was fatal to his suit for specific performance.
- Whether passage of time between the agreement and the decree made specific performance inequitable.
- What was the effect of the defendants' sales of the suit land to third parties during the pendency of the litigation.
Provisions considered
- Section 100, Code of Civil Procedure, 1908The Court held that a second appeal lies only on a substantial question of law and that findings of fact, even if erroneous, cannot be disturbed unless perverse; since the High Court found no substantial question of law, it had no occasion to reappreciate the evidence. (¶¶ 30, 31, 32, 33, 34, 35)
- Section 52, Transfer of Property Act, 1882The defendants sold the suit land in 2009 and 2025 while the litigation was pending. The Court held these transfers governed by lis pendens and subject to the final decree, and in the end declared the sale deeds non est while protecting the plaintiffs' sale deed obtained through court process. (¶¶ 16, 17, 45, 46)
Held
- In a second appeal the High Court decides only substantial questions of law; findings of fact of the first appellate court, however erroneous, cannot be reopened unless shown to be perverse or based on inadmissible evidence. Where no substantial question of law arose, the High Court rightly declined to reappreciate the evidence. (¶¶ 30, 31, 32, 33, 34, 35)
- On the evidence, the extension of time to 30.06.1989 was proved by documents bearing the Managing Director's admitted signatures, corroborated by a handwriting expert; cash receipts signed by her son stating he received payment for the company as its Director stood unrebutted as he never testified; and the plaintiff proved notices and his attendance at the Sub-Registrar's office with the balance consideration on the last date. (¶¶ 36, 37, 38, 39, 40)
- Notices sent under certificate of posting to the correct address are not displaced by a bare denial of receipt without evidence of non-service. (¶ 38)
- A party's failure to enter the witness box raises only a rebuttable adverse presumption that his case is incorrect; it was rebutted here by the evidence of the plaintiff's Manager, who deposed from personal knowledge of the transaction and whose testimony could not be discarded. (¶¶ 41, 42, 43)
- Specific performance was not shown to be inequitable merely because about fifteen years passed between the agreement and the decree, as no evidence of escalation in land prices was led. (¶ 44)
- Transfers made during the pendency of litigation are governed by the doctrine of lis pendens in Section 52 of the Transfer of Property Act and abide by the final decree. The defendants' sale deeds were held non est, and since the plaintiffs' heirs had already obtained a sale deed through the court's process under the decree, it would be inequitable to dislodge them. (¶¶ 17, 45, 46)
Result
Appeal dismissed; decree of specific performance passed by the first appellate court and affirmed in second appeal maintained; sale deeds executed by the defendants on 12.02.2009 and 27.02.2025 held non est.