KUMAR VATTI v. Chowk, Purani Basti, Raipur, District Raipur Chhattisgarh

1.1 - (A) Smt. Usha Rani W/o Late Rakesh Kumar Sahu, Aged About 56 Years R/o C/265, Alpha Palace Road, Rohinipuram, Near Gol Chowk, Raipur Chhattisgarh.

1.2 - (B) Sonali Sahu, D/o Late Rakesh Kumar Sahu Aged About 34 Years R/o C/265, Alpha Palace Road, Rohinipuram, Near Gol Chowk, Raipur Chhattisgarh.

1.3 - (C) Smt. Rupali Sahu, D/o Late Rakesh Kumar Sahu And W/o Mr. Devendrea Sahu, Aged About 36 Years R/o 13033, Prestige Falcon City Building 1, Tower-S, Opposite Konan Kunte Cross Metro Station, Konakapura Road, Banglore, Karnatka 560062 2 - Prakash Gupta S/o Shri Rajendra Gupta R/o Lakhenagar Chowk, Raipur District Raipur Chhattisgarh 3 - Nand Kishore Sharma S/o Radheshyam Sharma, R/o Nagar Nigam Colony, Samta Colony, Raipur District Raipur Chhattisgarh ... Respondents For Petitioners For Respondents No. 1a, 1b & 1c For Respondent No. 3 : : : Mr. B.P. Sharma and Mr. Sameer Oraon, Advocates Mr. H.S. Patel, Advocate Mr. Kishan Sharma, Advocate holding the brief of Mr. Achyut Tiwari, Advocate 2 Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 11/08/2025

1. The petitioners/plaintiffs have filed this petition seeking the following relief(s):-

10.1 A writ and/or an order in the nature of writ of certiorari do issue quashing the order dated 17.1.2023 (Annexure P-1) passed by the Court below being perverse and not sustainable in law and in effect allow application filed under Order 26 Rule 9 read with Section 151 of CPC in the facts and circumstances of the case and in the interest of justice.

10.2 Cost of the proceedings.

10.3 Any other writs and directions that may be deemed fit and just in the facts and circumstances of the case.

2. The petitioners/plaintiffs have filed a suit for declaration in respect of property bearing Survey No. 651/5 (part area 2450 sq.ft.), situated at Patwari Circle No. 104, Raipura, District Raipur and further to declare the sale deed dated 18.06.2012 null and void.

3. The defendants filed their written statement and denied the plaint averments.

4. The petitioners/plaintiffs approached the office of Tehsildar, Raipur wherein it was informed that the property mentioned in the sale deed is not available on the spot.

5. The plaintiff moved and application under Order 26 Rule 9 read with Section 151 of CPC for appointment of Commissioner before the learned trial Court.

6. The defendants filed reply to said application.

7. The learned trial Court rejected the application on the ground that the plaintiffs failed to produce documents to establish the fact that the property purchased through registered sale deed is not available on 3 the spot. Further the plaintiffs have filed suit to declare the sale deed null and void.

8. Mr. B.P. Sharma, learned counsel appearing for the petitioners/plaintiffs would argue that there was a very contract between the petitioners and respondent No.1 as sale deed was executed in favour of the petitioners. He would submit that the property purchased through sale deed is not available on the spot, therefore, an application for appointment of Commissioner was moved. He would contend that the learned trial Court ought to have allowed the application. Mr. B.P. Sharma would submit that Section 20 of the Contract Act states that where both the parties were in agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void. He would submit that agreement on account of uncertainty would also be void. He would further submit that the contract would be void and voidable according to the provisions of Sections 64 and 65 of the Contract Act.

9. On the other hand, Mr. H.S. Patel and Mr. Kishan Sharma, learned counsels appearing the respective respondents would oppose. They would submit that sale deed was executed on 18.06.2012, whereas civil suit was filed after 04 years in the year 2016. They would contend that as the petitioners have filed suit to declare the sale deed null and void, the application for appointment of Commissioner is misconceived. They would contend that the petition deserves to be dismissed.

10. I have heard learned counsels for the parties and perused the documents.

11. Admittedly, the petitioners/plaintiffs have filed suit to declare the sale deed dated 18.06.2012 null and void; and refund of consideration of 4 Rs.15,91,040/-. The petitioners in the application moved under Order 26 Rule 9 of CPC have pleaded that the land purchased through registered sale deed dated 18.06.2012 is not available on the spot, therefore, the application for appointment of Commissioner ought to have allowed by the learned trial Court.

12. Mr. B.P. Sharma has referred various sections of the Contract Act to demonstrate that where both the parties to an agreement are under a mistake as to a matter of fact, the agreement is void. The petitioners purchased the property through registered sale deed dated

18.06.2012, but the plot is not available on the spot, therefore, the petitioners filed suit to declare the sale deed null and void and for refund of consideration. When the petitioners have filed suit to declare the sale deed null and void and for refund of consideration, no occasion arises for demarcation of the plot. The burden lies with defendant No.1 to prove the fact that the sold plot is available on the spot.

13. Considering the above discussed facts, I do not find any good ground to interfere with the order passed by the learned trial Court.

14. Consequently, the petition fails and is hereby dismissed. No costs.

15. The interim order granted on 10.03.2023 is hereby vacated. Sd/- (Rakesh Mohan Pandey) Judge