MAHABIR PRASAD Vs. BRIJ MOHAN PRASAD

JUDGEMENT

(1.) This is an application for a certificate that the case is a fit one to be taken on appeal to His Majesty in Council. The applicant was the defendant in the action in which the plaintiff claimed possession of certain property in the following circumstances.

(2.) There was a contract of sale by the plaintiff to the defendant under which the defendant had paid Rs. 75 as earnest money and there was a further payment by him of Rs. 3,000. The case of the plaintiff was that the defendant, after the plaintiff had executed the sale-deed, had tampered with it and interpolated or changed certain pages in the agreement and turned what was according to the plaintiff's description a conditional sale into an absolute sale. As Agarwala, J. pointed out in the course of his judgment what the plaintiff meant by conditional sale was that the title in the property should not pass until the defendant had paid the whole of the consideration. With regard to the fact that the defendant had not paid the whole of the consideration within the time stipulated, there appears to have been no dispute. In those circumstances the trial Judge held that title had not passed to the defendant and that the plaintiff was entitled to recover possession; but he held in addition that the defendant had forfeited the Rs. 3,000 which as I have stated, had been paid by him.

(3.) On appeal to this Court the judgment of the trial Court was affirmed as regards the main question but reversed so far as the question of Rs. 3,000 and it was held that the Rs. 3,000 was not forfeited. It will be seen therefore that so far as that matter is concerned, the defendant has no grievance. The substantial question in this case is whether the judgment of this Court was a judgment of affirmance, if so it would be necessary for the applicant to show that there was some substantial question of law within the meaning of Section 110, Civil P.C. Dealing with the latter question, it is clear that there is no substantial question of law. The question which was in dispute in this Court and in the trial Court was substantially a question of fact. Once having decided that the document, the sale deed, had been tampered with, that the document as originally drawn up and executed by the plaintiff was what the plaintiff was pleased to call a conditional sale, it necessarily followed that the property did not pass to the defendant in the circumstances of the case, the balance not having been paid. I fail to see any question of law at all and there being no substantial question of law, it remains therefore to consider whether this was a judgment of affirmance. The contention of the applicant necessarily is that it was not a judgment of affirmance as the High Court has varied the judgment or decree of the trial Court by holding that the sum of Rs. 3,000 was not forfeited.